Citation NR: 9630274 Decision Date: 10/24/96 Archive Date: 11/08/96 DOCKET NO. 95-01 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for asthma. REPRESENTATION Appellant represented by: Thomas H. Bannigan, Attorney ATTORNEY FOR THE BOARD Robert W. Legg, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a November 1994 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought on appeal. The veteran, who had active service from July 1969 to July 1971, appealed that denial, and the case was referred to the Board for appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he has submitted new and material evidence subsequent to the last BVA decision which denied service connection for asthma. As such the veteran is seeking to reopen his previously denied claim. A favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has submitted new and material evidence sufficient to reopen his claim for service connection for asthma. FINDINGS OF FACT 1. A BVA decision dated September 1991 denied service connection for asthma. 2. The evidence submitted since the September 1991 BVA decision is new and material, and the claim for service connection for asthma is reopened. CONCLUSIONS OF LAW 1. The BVA decision dated September 1991 which denied service connection for asthma is final. 38 U.S.C.A. §§ 1110, 7104 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.102, 3.303, 20.1100 (1995). 2. New and material evidence has been received since the September 1991 BVA decision, and the claim for service connection for asthma is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.156(a), 20.1105 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran originally sought service connection for asthma in January 1990. The veteran claimed that his asthma originated during his active service. The Board, in a September 1991 decision, denied service connection, and that decision is final. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995); 38 C.F.R. § 20.1100 (1995). A final decision under the provisions of 38 U.S.C.A. § 7105(c)(West 1991 & Supp. 1995) cannot be reopened and reconsidered by the VA unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1995); Suttman v. Brown, 5 Vet.App. 127, 135 (1993). When it is determined that new and material evidence has been submitted, the VA must reopen a previously denied claim. See Spencer v. Brown, 4 Vet.App. 283, 286-287 (1993); see also 38 U.S.C.A. § 7104(b)(West 1991 & Supp. 1995). “Evidence is new when not ‘merely cumulative of other evidence on the record,’ and material when both ‘relative to and probative to the issue at hand’ and of sufficient weight to present a reasonable possibility that the new evidence, when viewed in conjunction with the old, will chance the disposition of the claim. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Colvin v. Derwinski, 1 Vet.App. 171,174 (1991); see also Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).” Mintz v. Brown, 6 Vet.App. 277, 280 (1994). A more recent Court of Veterans Appeals (Court) case has further refined the determination of when new and material evidence has been submitted. In Evans v. Brown, the Court held that there is a three question analysis in determining the first step under Manio. Evans v. Brown, No. 93-1220, slip op. at 13-14 (U.S. Vet.App. Aug. 1, 1996). Under Evans the analysis to determine whether new and material evidence has been submitted to reopen a claim is 1) whether the evidence submitted is new, that is, not of record; 2) whether the evidence submitted is probative of the issue which was a specific basis for the last disallowance; and 3) whether there is a reasonable possibility that the outcome of the claim would be different. Id. The Court in Evans held that these three questions form the first step under the Manio two-step analysis. (The second step is to review the former disposition of the claim. Id.) Evidence submitted to support the veteran’s claim since the September 1991 Board decision includes VA treatment records dated December 1972 and September 1976 which noted, in the former, that the veteran’s lungs showed a few scattered bronchial secretion rales, and in the latter, that the veteran had chronic bronchitis. Other evidence submitted subsequent to the September 1991 Board decisions includes treatment records from a private treating physician, Theodore Bash, M.D., which disclose that the veteran was seen in October 1971 for what was then described as asthmatic bronchitis, and a letter received October 1994 from that physician which reiterated that the veteran was treated in October 1971 for asthmatic bronchitis. In addition, Dr. Bash stated that the veteran again received treatment in February 1977 for asthmatic bronchitis, and that in July 1978 the veteran had wheezing respirations. Further evidence includes a letter from a Gita Vaidya, M.D., which was received by the RO in October 1994. Dr. Vaidya stated that after review of some of the veteran’s medical records, including the veteran’s separation examination report and VA treatment records dated in December 1972 and September 1976, he was of the opinion that the veteran had bronchial asthma since his active service. The Board finds that the above evidence is new, in that it was not physically present at the time of the September 1991 Board decision. Further, the Board now finds such to be probative, in that apparently the central rationale behind the September 1991 Board decision was that the veteran’s separation examination findings were not chronic, and that the earliest diagnosis of asthma was in 1980. The new evidence now shows that the veteran had treatment prior to 1980 for asthma, including treatment shortly following separation. As well, Dr. Vaidya rendered the opinion that the veteran’s current asthma had its onset during the veteran’s service. Finally, the Board is of the judgment that available evidence now indicates that a reasonable possibility exists that the new evidence, in conjunction with the old, would indicate that the disposition of the claim would be changed. Accordingly, the Board finds this additional evidence is both new and material, and the claim for service connection for asthma is reopened. ORDER New and material evidence has been submitted to reopen the veteran’s service connection claim for asthma, and accordingly, the veteran’s claim is reopened. REMAND To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. After obtaining the necessary authorizations, the RO is requested to secure all treatment records pertaining to the veteran’s treatment for asthma from both Dr. Bash and Dr. Vaidya. Copies of all documents received should be associated with the claims file. 2. Thereafter, the RO is requested to afforded the veteran a VA pulmonary examination by a pulmonary specialist. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be conducted. That specialist is requested to give an opinion as to whether it is at least as likely as not that the veteran’s current asthma had its onset during the veteran’s service. In particular, the Board would like to draw attention to the veteran’s diagnosis and history of asthma since October 1971, and as well, the veteran’s separation examination report which showed that the veteran had a respiratory wheeze at the time of his separation. Since it is imperative "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1995), copies of all pertinent medical records in the veteran’s claims file or, in the alternative, the claims file itself, must be made available to the examiner for review. 3. When the development requested has been completed, the claim for service connection for asthma should be adjudicated de novo by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his attorney should be furnished a Supplemental Statement of the Case, and be afforded the appropriate opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case at this time. The veteran is free to submit any additional evidence he desires to be considered in connection with his current appeal. No action is required until he is notified. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -