Citation Nr: 20003261 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-21 516 DATE: January 14, 2020 ORDER Reopening of a previously denied claim of service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for ischemic heart disease (IHD) is granted. REMANDED Service connection for Parkinson’s disease is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a May 2014 rating decision, the RO denied service connection for COPD based on a lack of a nexus to service; the Veteran initiated, but did not perfect, an appeal of the denial. 2. Evidence received since the final May 2014 rating decision is not new and material to reopen the claim for service connection for COPD. 3. The Veteran served aboard the U.S.S. Denver, which served in the coastal waters of Vietnam, and the Veteran has been diagnosed with IHD. CONCLUSIONS OF LAW 1. The May 2014 rating decision that denied service connection for COPD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2019). 2. The criteria for reopening a previously denied claim of service connection for COPD is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for IHD have been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Marine Corps from July 1971 to July 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2011 and July 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). First, the Board must discuss the procedural history concerning the claims for service connection for IHD and Parkinson’s disease. In October 2010, the Veteran filed claims for service connection for IHD and for Parkinson’s disease. A March 2011 rating decision denied the service connection claims. In June 2011, the Veteran filed a timely notice of disagreement (NOD) with the March 2011 rating decision. The RO did not issue a Statement of the Case (SOC) and issued rating decisions in May 2014 and May 2015 that denied reopening the claims for service connection for IHD and Parkinson’s disease. In March 2016, the Veteran filed another claim for service connection for IHD and Parkinson’s disease. The July 2017 rating decision denied reopening the Veteran’s claims, the Veteran filed a timely NOD, and an SOC was issued in May 2019. The issues have been appealed and are now before the Board. Because an SOC was not issued until May 2019, the Veteran’s October 2010 claims for service connection for IHD and Parkinson’s disease remained pending. See 38 C.F.R. § 19.30. Therefore, new and material evidence is not required to reopen the claims and the Board will review the claims on a de novo basis. Additional VA medical treatment records were associated with the record following a May 2019 SOC, but are duplicative of the evidence already considered by the RO in the SOC and a waiver of RO consideration of that evidence is not required. New and material evidence - COPD Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In May 2013, the Veteran filed a claim for service connection for COPD. A May 2014 rating decision denied service connection for COPD on the grounds that no nexus to service was shown, and the Veteran filed a timely NOD. An SOC was issued in January 2016, but the Veteran did not file a timely substantive appeal. Instead, he filed notice that he wished to withdraw his appeal in January 2016 correspondence, and then filed a new March 2016 claim regarding COPD. The May 2014 rating decision is final. 38 C.F.R. § 20.1103. The evidence of record at the time of the May 2014 rating decision included service treatment records (STRs), service personnel records (SPRs), VA medical treatment records, private medical records, a physician’s statement, the Veteran’s personal statements, and Social Security Administration (SSA) records. The RO denied the Veteran’s claim and found that although the Veteran served at Camp Lejeune during a time period known to be associated with contaminated water, there was no association between the Veteran’s COPD and exposure to contaminated water, nor was there other evidence of a connection to service. The RO stated that without evidence showing a link between COPD and military service, the claim must be denied. Since the prior final May 2014 rating decision, additional evidence has been associated with the record, to include VA medical treatment records, private treatment records, additional SSA records, the Veteran’s statements, VA examination reports, past employer information, and additional SPRs. Concerning the additional SPRs associated with the record after the final May 2014 rating decision, they are not relevant to the claim for service connection for COPD. 38 C.F.R. § 3.156(c)(1). They continue to document the ships on which the Veteran served, which were associated with the record at the time of the May 2014 rating decision. Thus, new and material evidence is still required to reopen the claim. The Veteran has submitted additional statements including his contentions that he has COPD due to contaminated water at Camp Lejeune. However, he asserted that he had COPD due to contaminated water at Camp Lejeune at the time of the May 2014 rating decision. Thus, such contentions are not material evidence to reopen the claim. In March 2016, the Veteran generally claimed service connection for COPD based on exposure to Agent Orange. A new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim). Here, the Veteran’s general lay assertions relating COPD to Agent Orange exposure do not qualify as material evidence to reopen the claim for service connection for COPD. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Indeed, while the Veteran has reported that his ships served within the coastal waters of Vietnam, information regarding the Veteran being on those ships was already in the record at the time of the prior final rating decision and is therefore not new. See Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (“The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence.”). The Veteran’s new theory of would not trigger VA’s duty to assist and does not constitute new and material evidence to reopen his claim for service connection. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Additional VA medical treatment records show diagnoses of COPD. Such evidence is new but not material as the evidence of record at the time of the May 2014 rating decision included diagnoses of COPD. Additional SSA records have been associated with the record which document complaints of shortness of breath and chest pain. The records are largely duplicative of the SSA records that were already associated with the record at the time of the May 2014 rating decision. To the extent that they include diagnoses of COPD and manifestations of COPD, they are not considered material evidence to reopen the claim as diagnoses and complaints were already of record at the time of the May 2014 rating decision. All other evidence associated with the record since the May 2014 rating decision is not relevant to the Veteran’s claim for service connection for COPD. Accordingly, because new and material evidence has not been received, reopening the claim of entitlement to service connection for COPD is not warranted. Service connection for IHD is granted Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain conditions, including ischemic heart disease, may be established on a presumptive basis if the evidence shows exposure to herbicide agents. See 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309(e). For all Veterans who served in the Republic of Vietnam during the Vietnam era, exposure to herbicides is conceded. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Appeals for the Federal Circuit (Federal Circuit) held that Veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116 so long as they meet the section's other requirements. Id.; see also 38 U.S.C. § 1116. The Blue Water Navy Vietnam Veterans Act of 2019 extended the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019). A September 2019 VA examination report shows that the Veteran has CAD, history of a myocardial infarction, and the examiner found that his conditions fall under the definition of IHD. SPRs show that the Veteran served aboard the U.S.S. Denver which was in the coastal waters of Vietnam during the requisite time period; the RO previously conceded such in granting service connection for type II diabetes mellitus. Accordingly, the Board finds the Veteran’s ship was within 12 nautical miles of Vietnam and the Veteran is presumed exposed to herbicides. Accordingly, service connection for ischemic heart disease is warranted. 38 C.F.R. §§ 3.307; 3.309. REASONS FOR REMAND Service connection for Parkinson’s disease is remanded. The Veteran was provided VA examinations for Parkinson’s disease in June 2017 and September 2019. The examiners provided negative nexus opinions, finding that the Veteran did not have Parkinson’s disease, but had a tremor. However, the examiners did not address the etiology of his essential tremor and an addendum opinion is required. In addition, a June 2011 VA examination report indicates that the Veteran started to experience hand tremors following his June 2010 heart surgery. Thus, an opinion as to secondary service connection must also be obtained. Entitlement to a TDIU is remanded. Because the Veteran has claimed entitlement to TDIU, in part, because of his tremor, the Veteran’s TDIU claim is inextricably intertwined with the remanded issue. Adjudication of TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain addendum opinions concerning the etiology of the Veteran’s claimed Parkinson’s disease and tremor. The claims folder must be made available to the examiner for review. The examiner must address whether the Veteran’s tremor is at least as likely as not caused by active service, to include exposure to contaminated water at Camp Lejeune and herbicides. The examiner must also opine whether it is at least as likely as not that the tremor was proximately due to or aggravated by his now-service connected ischemic heart disease. A full and complete rationale must be provided for any opinion reached. 2. Then, readjudicate the matters on appeal. If the benefits sought remain denied, issue a Supplemental Statement of the Case and allow the Veteran and his representative an appropriate amount of time for response. Return the issues to the Board for appellate review, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.