Citation Nr: 0006530 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-14 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for asthma. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran had active service from February 1983 to February 1986, and September 1990 to August 1991. During the latter period of service, he served in the Persian Gulf theater during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, dated in September 1997 and March 1998 which denied the veteran's application to reopen his claim for service connection for asthma. FINDINGS OF FACT 1. An unappealed June 1995 RO decision denied the veteran's claim for service connection for asthma based on aggravation. 2. Since that rating decision, a medical statement has been submitted which indicates that the veteran was treated for bronchitis rather than asthma prior to service, and multiple hospital reports have shown recurrent asthma attacks since service; that evidence was not previously of record when the last final decision denying the claim was made, it bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran was treated for asthma in service following exposure to chemicals. The signs and symptoms of asthma reflected in the post service hospital reports indicate continuity of symptomatology since service and there is medical evidence relating those symptoms to a current disability. CONCLUSION OF LAW 1. An unappealed June 1995 RO decision which denied the veteran's claim for service connection for asthma is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. The evidence received since the June 1995 rating decision is new and material; thus, the claim for service connection for asthma is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 20.1105, 3.156 (a) (1999). 3. The claim of entitlement to service connection for asthma is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Regulations provide that a preexisting injury or disease will be considered to have been aggravated by active duty service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). In this case, the RO denied the veteran's claim of entitlement to service connection for asthma in a June 1995 rating decision. That decision was based on a finding that the veteran had preexisting asthma which was not aggravated by service. The RO found that the veteran's asthma followed a natural progression both during and after service. The veteran was notified of the June 1995 decision and of his appellate rights that same month but failed to seek appellate review within one year of notification. Therefore, that decision is final and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. The veteran filed a claim in September 1997 requesting that his claim for service connection for asthma be reopened. RO decisions rendered in September 1997 and March 1998 found that no new and material evidence had been submitted to reopen the veteran's claim for service connection for asthma. Reviewing a final decision based on new and material evidence is potentially a three-step process. See Elkins v. West, 12 Vet. App. 209, 214-9 (1999). First, the Board must determine whether the evidence submitted since the prior decision is new and material, which will be discussed below. If "the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). Second, if new and material evidence has been presented, the claim is reopened and must be considered based upon all the evidence of record, to determine whether it is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Finally, if the claim is well grounded, and if VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled, the Board may evaluate the merits of the claim. See Winters v. West, 12 Vet. App. 203, 206-7 (1999). The question of whether evidence is "new and material" is analyzed under 38 C.F.R. § 3.156(a), and also requires a three-step analysis. The first step requires determining whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Cox v. Brown, 5 Vet. App. 95, 98 (1993). Evidence is probative when it "tend[s] to prove, or actually prov[es] an issue." Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing Black's Law Dictionary 1203 (6th ed. 1990). Second, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made. See Struck v. Brown, 9 Vet. App. 145, 151 (1996). The third and final question is whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir., 1998), citing 38 C.F.R. § 3.156(a). This need not mean that the evidence warrants a revision of the prior determination, but is intended to ensure the Board has all potentially relevant evidence before it. See Hodge, 155 F.3d at 1363, citing "Adjudication; Pensions, Compensation, Dependency: New and Material Evidence; Standard Definition," 55 Fed. Reg. 19088, 19089 (1990). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. In the instant case, the June 1995 rating decision which declined to reopen the veteran's claim for service connection for asthma is final, as it was the last disposition in which the claim was finally disallowed on any basis. The relevant evidence at that time consisted of the veteran's service medical and personnel records; VA medical records dated through November 1994; and the veteran's own lay statements. Consequently, the evidence that must be considered in determining whether the claim may be reopened based on new and material evidence is that added to the record since the June 1995 rating decision. Since that rating decision, the veteran has submitted an undated written statement from Herbert Varn Rast, M.D., in July 1998. That statement indicates that the veteran was treated for bronchitis as a child. The veteran submitted an explanation with Dr. Rast's statement, indicating that the veteran himself had sought clarification of whether he had asthma as a child. He stated that he had recently been told by his mother that he was actually treated for bronchitis as an infant or toddler. The veteran added that he had essentially been misinformed as a child that he had asthma as an infant, which resulted in his inaccurate report of personal medical history. Additionally, VA hospitalization reports show multiple periods of treatment for severe asthma since 1991. The Board finds Dr. Rast's opinion to be new, as it was not of record at the time of the June 1995 rating decision and not cumulative of any other evidence at that time. In addition, as the statement is offered, in conjunction with the veteran's explanation of his reported history, to demonstrate that asthma did not pre-exist service, it is probative of the central issue in this case and is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board finds that new and material evidence has been submitted since the June 1995 rating decision, and thus, the claim for service connection for asthma must be reopened. II. Well-Grounded Analysis Turning to the second step of the Winters analysis, the Board must determine whether the veteran's claim for service connection for asthma is well grounded. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In this case, the same evidence which served to reopen the veteran's claim for service connection for asthma, in combination with evidence of chronic asthma since service, also serves to well ground the claim. In this respect, Dr. Rast indicated in essence that the veteran did not receive treatment for asthma prior to service. Further, the veteran explained that he had mistakenly thought and reported that he had asthma as a child. Finally, the various post service inpatient hospitalizations indicate that the veteran has had fairly severe asthma since service. Hence, the veteran has presented evidence to show that he currently has asthma and that this chronic condition has been symptomatic since service. Based on this evidence, the Board has determined that there is competent evidence of current asthma, as well as medical evidence relating that disability the veteran's continued symptomatology. The Board finds that this evidence is sufficient to render the claim plausible and capable of substantiation; thus, the claim is well grounded. See 38 U.S.C.A. § 5107(a); Caluza v. Brown, 7 Vet. App. 498, 505- 06 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (per curiam). The Board further notes that, as the claim is well grounded, the VA has a duty to assist under 38 U.S.C.A. § 5107(a) before evaluating the merits of the claim. For the reasons set forth in the Remand section following the Order, the Board finds that further development must be accomplished by the RO before the Board may consider the merits of the veteran's claim for service connection for asthma. ORDER New and material evidence has been presented to reopen the claim of entitlement to service connection for asthma, and that claim is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for asthma is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The evidence which appears to be supportive of the veteran's claim is outlined above. It is unclear, however, as to whether the current asthma is likely related to exposure in service. Dr. Rast's opinion does not appear to have been based on a review of the entire record, nor does it offer an actual opinion as to etiology of the present asthma. In Swann v. Brown, 5 Vet. App. 177, 180 (1993), the Court held that, without a review of the claims file, an opinion as to etiology of an underlying condition can be no better than the facts alleged by the veteran. See also Black v. Brown, 5 Vet. App. 177, 180 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting a medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis). Accordingly, the Board finds that the veteran should be afforded a VA evaluation to determine whether, based on a review of the entire record, the veteran's current asthma is likely related to service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not refute expert medical conclusions in the record with its own unsubstantiated medical conclusions; if the medical evidence of record is insufficient, or of doubtful weight or credibility, the Board may supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises in its decisions). Furthermore, the veteran testified at a December 1998 RO hearing that additional treatment reports concerning his asthma may exist which have not been associated with the claims file. These include reports of VA inpatient treatment in 1998. The Board notes further, that in the veteran's original application for benefits, he indicated that he had been treated for asthmatic bronchitis by Drs. Herbert Rast, Robert Vante Stowe, and Michele Spero. Further, on July 1991 report of medical history, the veteran indicated that he had been hospitalized and treated for asthma by Dr. Spero at Lexington County Hospital on March 21, 1987. Although, Dr. Rast has indicated that his records of treatment of the veteran as a child are unavailable, the RO should attempt to obtain the other medical records. Therefore, further development is required to obtain any such pertinent medical records. See Chaffrey v. Brown, 6 Vet. App. 377, 381 (1994); Schafrath v. Derwinski, 1 Vet. App. 589, 594-95 (1991) (holding that VA's duty to assist includes securing medical records to which a reference has been made). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the veteran identify all sources of medical treatment received by the veteran both prior to and since service which pertain to his asthma, and that he furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies, which are not currently of record, should then be requested and associated with the claims folder. Specific requests should be made for the medical records of Robert Vante Stowe, M.D., and Michele Spero, M.D. as well as records documenting the veteran's hospitalization at Lexington County Hospital in March 1987. 2. The veteran should be afforded a VA examination to ascertain the nature and etiology of any current asthma. The examiner is requested to review the veteran's claims folder, including the service medical records. Based on this review, the examiner is requested to provide an opinion as to whether it is at least as likely as not that the veteran's asthma preexisted either period of active military service, and if so, whether such was aggravated by that military service. If it is determined that asthma did not preexist either period of service, the examiner is requested to express an opinion as to whether it is at least as likely as not that the veteran's asthma is related to service in the Persian Gulf and particularly to his smoke exposure therein. A complete rationale should be given for all opinions and conclusions expressed. 3. Thereafter, the RO must review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and, if not, the RO should implement corrective procedures. 4. When the development requested has been completed, the RO should readjudicate the claim of entitlement to service connection for asthma on the merits. If the benefit sought is not granted, the veteran should be furnished a supplemental statement of the case, and be afforded the applicable 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, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals