Citation Nr: 21022391 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-25 771 DATE: April 15, 2021 ORDER New and material evidence has been submitted and the claim to reopen service connection for bronchitis is granted. REMANDED Service connection for chronic bronchitis is remanded. Service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT New and material evidence submitted since the last, final July 2007 rating decision, includes lay and medical evidence showing a current bronchitis diagnosis. CONCLUSION OF LAW The criteria for reopening service connection for bronchitis have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. New & Material Evidence to Reopen the Claim for Bronchitis VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). Also filed as a claim for a lung condition, the claim for bronchitis was previously denied in October 1967 and July 2007 rating decisions. Each time, this claim was denied because the RO determined that the Veteran did not have a current diagnosis of bronchitis. Following these decisions, the Veteran did not perfect an appeal of the rating decisions. Thus, the rating decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. Probative to this claim, evidence received since the last, final July 2007 rating decision, includes and is not limited to, a June 2019 diagnostic radiology report from a private medical provider, which indicates a diagnosis of chronic bronchitis; and the Veteran’s testimony at his February 2021 Board virtual hearing, in which he testified about the onset, duration and recurrence of his bronchitis. This evidence is new, as it was not previously submitted and/or considered by VA; and the evidence is material because they provide a clearer picture of the history of the Veteran’s disability. Thus, as new and material evidence has been submitted, the service connection claim for chronic bronchitis is reopened. REASONS FOR REMAND Additional development is necessary before a decision may be rendered on the remaining issue on appeal. The Veteran asserts that his diagnosed COPD and bronchitis are the result of environmental exposures due to service in Louisiana and in Alaska. See November 2019 Appellate Brief. In June 2019, he was afforded a VA examination for respiratory conditions (other than tuberculosis and sleep apnea). In the VA examination report, a VA examiner indicated that the Veteran is diagnosed with COPD, and that he had a diagnosis of bronchitis, which has resolved. In a corresponding June 2019 VA opinion, the VA examiner opined that the Veteran’s “currently diagnosed lung conditions of COPD [and] bronchitis, resolved were less likely than not incurred in or caused by the treatment of bronchitis and pharyngitis during service.” As the rationale for this opinion, the VA examiner reasoned, in pertinent part, that “[one] episode of bronchitis which is resolved without any residual symptoms does not constitute chronic bronchitis.” While this medical opinion constitutes competent and probative evidence against the claim, here, in a June 2019 private treatment record from Brookwood Baptist Health reflects an occupational exposure to silica dust. Moreover, during his hearing the Veteran described residual polyps in the lungs. The Board is precluded from speculating as to the significance of such and further precluded from exercising its own independent medical judgment. As such a supplemental opinion is required to obtain medical findings. The matters are REMANDED for the following action: 1. Prior to scheduling the Veteran for a new VA examination, contact the Veteran and obtain all pertinent information about his claimed exposure to environmental hazards in Alaska; and thereafter, undertake the requisite steps to verify the Veteran’s claimed exposure, including and not limited to, any exposure to silica dust. a. All attempts to obtain the information, including the mandatory response to the request, must be documented in the claims file. b. If any information is unavailable, provide the Veteran with a memorandum of unavailability, and associate a copy with the claims file. 2. After, undertaking the above-mentioned developments, obtain an addendum opinion for a clarification of the Veteran’s COPD and bronchitis. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. For each disability, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent disability is the result of an in-service injury, illness, disease, or event; his environmental exposures in Alaska; and/or is otherwise related to his active service. b. In rendering an opinion, consider the Veteran’s lay statements about onset and symptomatology. c. For purpose of determining this claim, a current diagnosis is present if the Veteran was diagnosed with the disability at any time since this claim was filed, even if the disability has resolved. d. In rendering an opinion for each disability, the VA examiner must discuss the June 2019 private treatment record from Brookwood Baptist Health which reflects an occupational exposure to silica dust. With a clear rationale for each disability, opine whether it is at least as likely as not the pertinent disability is related to the Veteran’s exposure to silica dust. Please also discuss the significance of any findings pertaining to residual lung polyps. (Continued on the next page)   e. If there are discrepancies with any findings from medical treatment records, please explain why, with a clear rationale. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.