Citation Nr: 20024554 Decision Date: 04/09/20 Archive Date: 04/09/20 DOCKET NO. 19-26 855 DATE: April 9, 2020 ORDER New and material evidence to reopen the claim for entitlement to service connection for rheumatoid arthritis has been received; to this limited extent, the claim is granted. New and material evidence to reopen the claim for entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease) has been received; to this limited extent, the claim is granted. Entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease), to include as secondary to rheumatoid arthritis is denied. REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. FINDINGS OF FACT 1. In a May 2015 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for rheumatoid arthritis. 2. The evidence received since the May 2015 rating decision regarding the Veteran’s claim for entitlement to service connection for rheumatoid arthritis is new and raises a reasonable possibility of substantiating the claim. 3. In a May 2015 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease). 4. The evidence received since the May 2015 rating decision regarding the Veteran’s claim for entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease) is new and raises a reasonable possibility of substantiating the claim. 5. The competent and credible evidence does not reflect a diagnosis of any lung disability during the pendency of the appeal. CONCLUSIONS OF LAW 1. The May 2015 rating decision denying entitlement to service connection for rheumatoid arthritis is final. 38 U.S.C. § § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, thus, the claim of entitlement to service connection for rheumatoid arthritis is reopened. 38 U.S.C. § §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The May 2015 rating decision denying entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease) is final. 38 U.S.C. § § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received, thus, the claim of entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease) is reopened. 38 U.S.C. § §§ 5108, 7105(c); 38 C.F.R. § 3.156. 5. The criteria for service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from November 1982 to November 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran’s claims of entitlement to service connection for rheumatoid arthritis, and entitlement to service connection for bilateral pneumonitis inflammatory lung disease were both denied by a rating decision in May 2015. The Veteran did not file a Notice of Disagreement (NOD) with those claims, and as a result they became final. The Veteran then filed claims for entitlement to service connection for rheumatoid arthritis, and service connection for “chronic lung condition.” The Veteran’s claims were reopened in a rating decision from July 2016, but the denial was confirmed and continued. Regardless of the AOJ’s actions, the Board must make its own determinations as to whether new and material evidence has been received to reopen the claims. That is, the Board has jurisdictional responsibility to consider whether claims should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Whether new and material evidence has been received to reopen the claims for entitlement to service connection for rheumatoid arthritis, as well as entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease). Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s claims file includes a note from Dr. S.C., the Veteran’s private physician, from October 2015. The note states that their facility has been treating this Veteran for multiple medical conditions, including rheumatoid arthritis … [and] chronic lung disease. She has relied on the care of several civilian specialists over the years and will continue to do so indefinitely. I have reviewed the in-service medical treatment records and opine that it is more likely than not that the aforementioned medical conditions (all of them) are strongly associated with injuries the Veteran incurred (and/or responsibilities the Veteran performed) while in the Air Force for over 28 years. The Veteran’s previous claim of entitlement to service connection for rheumatoid arthritis was denied in May 2015, as there was no evidence of a nexus between the Veteran’s rheumatoid arthritis and her active duty service. The Board further notes that the Veteran’s previous claim of entitlement to service connection for a lung disability was denied as she did not have a current diagnosis. The note provided by the private physician speaks to both of these factors. It provides a nexus statement regarding the Veteran’s rheumatoid arthritis being linked to her service, and it also states that she is being treated for a chronic lung disability. Therefore, the submitted evidence is new, insofar as it was not previously submitted to the VA. The physician’s statement is also material, in that it goes to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). For these reasons, the claims for entitlement to service connection for rheumatoid arthritis, as well as service connection for a lung disability will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Thus, the appeals have been reopened, and the Veteran’s claims now turns to the question of entitlement to service connection on the merits. 2. Entitlement to service connection for a lung disability (previously claimed as bilateral pneumonitis inflammatory lung disease), to include as secondary to rheumatoid arthritis. The Veteran is claiming that she has a current lung disability, and that that lung disability is related to service. Alternatively, she has argued that her claimed lung disability is secondary to her rheumatoid arthritis. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To begin, the Veteran does not have a current diagnosis of a lung disability. Regarding the evidence in favor of the Veteran’s claim, the Veteran’s claim file includes an October 2015 note from her private physician, Dr. S.C. The note states that the Veteran is seen by that private facility to treat her “multiple medical conditions, including … chronic lung disease (for which she also sees a pulmonologist.” The statement does not specify the Veteran’s lung disability, only that she has one. The Veteran’s claims file also includes consultations and treatment from a VA Medical Center. These notes often involve the input from a VA pulmonologist. A record from January 2015 indicates that the Veteran was seen for a “persistent cough,” and the impression of “rheumatoid lung disease” was listed. A pulmonary consultation was ordered, in addition to a nebulizer and cough syrup. One month later in February 2015, a treatment note indicates “persistent cough [status post] hospitalization for pneumonia in [January 2015] – symptoms resolved.” A VAMC note from March 2015 states that there was “concern for inflammatory disease … or cryptogenic organized pneumonia.” A lung biopsy was cancelled “as bronchoscopy was felt to not have a significant yield at the time.” The Veteran “was not sent out on steroid. Currently patient reports she feels much better. Occasional non-productive, cough in morning. Negative infectious ROS. Things are back to normal.” A further follow up that month indicated that everything had “resolved … patient back to baseline now … no need for intervention at this time.” The Veteran was given a VA examination in April 2015. The examiner saw the Veteran in person and conducted a review of the Veteran’s claims file. The VA examiner noted that the Veteran did not have a current diagnosis of a lung disability. The VA examiner noted that the Veteran did have a persistent cough in January 2015, and “cavitary lesions noted on her 2009 chest CT [which] resolved after treatment with multiple medications.” They further stated that “no diagnosis was found to explain the pathology.” In the final remarks section, the examiner noted that “there is no diagnosis because there is no pathology to render a diagnosis.” An April 2017 statement reads that the Veteran “did have a lung CT,” and despite the “concern of inflammatory lung disease,” the x-ray here was negative.” The Veteran was also “told she had pulmonary cavitary lesions in 2009 but they resolved after [antibiotic] treatment.” During this exam, the Veteran noted no further symptoms related to her lung disability. There is no evidence that any of the VA examiners or VAMC staff were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the lack of a current diagnosis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the Veteran’s claims file contains no further evidence of a current diagnosis of any lung disability. Neither the Veteran, nor her Representative have offered a substantial complaint alleging the claimed disability. Additionally, the Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) (“pain alone can serve as a functional impairment and therefore qualify as a disability”). That Federal Circuit decision qualified that holding, however: “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity.” Id. at 1365. In this case, however, during the pendency of the appeal, the Veteran did not claim that she had a lung disability that caused her pain, which then resulted in a functional limitation. In fact, the evidence demonstrates that the Veteran may have had a persistent cough and/or a pulmonary disability in January 2015, but that it had resolved later that month. Follow up examinations indicate that the Veteran had no further symptoms, to include pain, and that the issue had fully resolved. Thus, the Veteran also does not have a present disability pursuant to Saunders. Moreover, the times at which a present, acute respiratory problem existed fall outside the appeal period and are shown to have resolved with treatment. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the first criteria for service connection is not met for the claimed disability, as there is no evidence that the Veteran has a current diagnosis of a lung disability. As far as the second and third criteria for service connection, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, in the absence of competent evidence showing a current diagnosis of any diagnosed lung disability, it is unnecessary to address the remaining elements of the claims for entitlement to service connection. See Brammer, 3 Vet. App. at 225. Thus, the Board finds that entitlement to service connection for the lung disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for a lung disability is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. REASONS FOR REMAND The Board incorporates its discussion from the sections above by reference. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for rheumatoid arthritis is remanded. The Veteran is claiming that her rheumatoid arthritis is due to her active duty service. To begin, the Veteran does have a current diagnosis of rheumatoid arthritis. A VAMC note from January 2015 states “rheumatoid arthritis, newly diagnosed.” A November 2015 statement from a private rheumatologist, Dr. A.T., states that the Veteran “is followed in Rheumatology Clinic for diagnosis of rheumatoid arthritis.” An April 2017 VA consultation continued the impression of rheumatoid arthritis, and this was followed up with a VAMC confirmation in November 2018. Most recently, a January 2019 VAMC note gave the impression of “rheumatoid arthritis, unspecified.” As such, the Veteran’s diagnosis has been confirmed, and she has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the second criteria, the Veteran wrote in her VA Form 9 from September 2019, indicated that her rheumatoid arthritis was due to her military occupational specialty (MOS) of being a flight attendant. It states that, “as a flight attendant, she was required to load and unload heavy baggage, storage containers and other articles that were to be stored in the cargo bay inside the aircraft; weighing anywhere from twenty to fifty pounds. During loading/unloading, the Veteran was required to do excessive bending, experience excessive pressure on her hands, wrists, shoulders, and back.” The Veteran’s NOD, and a March 2020 Appellate Brief from the Veteran’s Representative makes a similar argument. The Veteran is competent to report the general duties of her MOS, as well as her in-service experiences. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board has confirmed that the Veteran’s MOS was as a flight attendant. Specifically, she served as a flight attendant superintendent for over 4 years, as a flight attendant craftsman for over 19 years, and as a traffic management journeyman for over 3 years. As such, the Board has confirmed the Veteran’s MOS, and the duties assigned to her as a flight attendant. Thus, she has met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). An October 2015 etiological statement from a private physician, Dr. S.C. raises at least the possibility of a nexus. The Veteran has not been afforded a VA examination for her rheumatoid arthritis, and an adequate etiological opinion has not been rendered. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. at 83. As a result, and in consideration of the VA’s duty to assist, a remand is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated her for rheumatoid arthritis, including Dr. S.C. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records herself. 2. Associate with the claims file updated VA treatment records. 3. Schedule the Veteran for a VA Arthritis/Rheumatology examination. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s rheumatoid arthritis is related to her active duty service? All findings should be reported in detail and all opinions must be accompanied by a clear rationale. The examiner must consider the Veteran’s military occupational specialty of flight attendant, which she held for nearly three decades. The examiner must consider the Veteran’s lay statements regarding onset of symptomatology and/or continuity of symptomatology, as well as any other pertinent evidence, as appropriate. 4. After undertaking the development above, the Veteran’s claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case (SSOC) and be given an appropriate period to respond before the case is returned to the Board for further review. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.