Citation Nr: 20003371 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-59 531 DATE: January 14, 2020 ORDER New and material evidence having been received, the Veteran's claim of entitlement to service connection for emphysema is reopened. REMANDED Entitlement to service connection for emphysema is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for emphysema was denied in a September 2010 rating decision. The Veteran submitted a timely Notice of Disagreement (NOD), and VA issued a Statement of the Case (SOC) in March 2012. The Veteran did not appeal the SOC, and the September 2010 rating decision became final. 2. In November 2014, the Veteran requested that VA reopen his previously denied claim. 3. In a February 2015 rating decision, VA continued to deny the Veteran’s claim because the evidence submitted since the September 2010 rating decision was not new and material which is the basis of the present appeal. 4. Evidence received since the September 2010 rating decision in support of the veteran’s claim is not cumulative of the evidence previously of record. CONCLUSIONS OF LAW 1. The September 2010 rating decision denying service connection for emphysema is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the September 2010 rating decision in support of the claim of entitlement to service connection for emphysema is new and material; thus, the claim is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from December 1990 to November 1991. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 rating decision of the Regional Office (RO) in Fargo, North Dakota. In November 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference from the RO in Jackson, Mississippi; a transcript is of record. New and Material Whether new and material evidence has been received to reopen the claim of entitlement to service connection for emphysema In November 2014, the Veteran requested that VA reopen his previously denied claim of entitlement to service connection for emphysema. The September 2010 rating decision denied service connection because there was no in-service occurrence. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S. C. § 5108. “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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). Regardless of the actions of the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). At the time of the September 2010 rating decision, the evidence of record included: the Veteran’s service treatment records; the Veteran’s military personnel records; the Veteran’s DD-214; Jackson VAMC treatment records from December 1991 to September 2010; VA examinations from February 2009 and April 2009; and Social Security Administration (SSA) records. Records associated with the claim since the September 2010 rating decision include Jackson VAMC treatment records from July 2013 to May 2016, a January 2015 VA examination, a November 2016 lay statement from the Veteran, and the hearing transcript. The evidence submitted since the September 2010 rating decision is new and material. The VA treatment records and examination are new because they were not previously reviewed by an agency decision maker; however, they are not material because they do not relate to an unestablished fact necessary to substantiate the claim. The VA treatment records discuss current diagnoses and the VA examination is for the Veteran’s diagnosed hypertension. The Veteran’s lay statement and the hearing transcript are both new and material. The Veteran describes the exposure to exhaust fumes in service as the cause of his emphysema. During his testimony in the hearing, he describes his Military Occupational Specialty (MOS) as working on tanks and being exposed to exhaust fumes. This evidence related to an unestablished fact necessary to substantiate the claim, which is in-service occurrence. Accordingly, the Veteran’s claim of entitlement to service connection for emphysema is reopened. REASONS FOR REMAND Entitlement to service connection for emphysema is remanded. The Veteran contends that he is entitled to service connection for emphysema. Specifically, the Veteran contends that his emphysema was caused by breathing in toxic fumes from tanks. The Veteran has disclosed that the Veteran sought treatment from the Memphis VAMC. The records are not associated with the claim. As such, these records need to be obtained. Further, the Veteran should be afforded an examination. The Veteran’s lay statement and military records indicate that the Veteran may have in-service exposure to fumes. Accordingly, the Veteran’s claim of entitlement to service connection for emphysema is remanded to obtain records and an examination. The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain the Veteran’s VA treatment records for the period from January 1992 to December 1993. 2. After the above records have been associated with the claims file if possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any emphysema. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including tank exhaust fumes. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, Associate 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.