Citation Nr: 0007826 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-28 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bronchial asthma. 2. Whether the Board of Veterans' Appeals (Board) has jurisdiction over the issue of the veteran's entitlement to nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran served with the United States Armed Forces in the Far East from November 1941 to August 1942, and from August 1945 to November 1945; he was a prisoner of war of the Japanese Government from April 1942 to August 1942. This matter arises from various rating decisions rendered since March 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which denied the benefits sought on appeal. Following compliance with the procedural requirements set forth in 38 U.S.C.A. § 7105 (West 1991), the case was forwarded to the Board of Veterans' Appeals (Board) for appellate consideration. During the pendency of this appeal, the veteran requested a personal hearing before a traveling Member of the Board. Such a hearing was conducted by the undersigned on June 21, 1999; a transcript of that proceeding is of record, as is the veteran's written waiver of RO consideration of the additional evidence that he submitted at the hearing. See 38 C.F.R. § 20.1304(c) (1999). The Board also directs attention of the RO to a statement received from the veteran at the hearing before the Board in regard to a recent RO decision to deny a claim to reopen for service connection for emphysema, particularly the question of whether the document may constitute a Notice of Disagreement. For the reasons that follow, the Board has construed the issues to be those cited on the cover page of this decision. Moreover, during the June 21, 1999 personal hearing, the veteran expressed the desire to claim a total disability rating based upon individual unemployability as a result of his service-connected disabilities. That issue has not been developed or certified for appeal. See 38 U.S.C.A. § 7105. Nor is it "inextricably intertwined" with the issues now on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, it is referred to the RO for all action deemed necessary. FINDINGS OF FACT 1. In an unappealed decision dated in May 1994, the RO denied a claim by the veteran for entitlement to service connection for bronchial asthma. 2. Evidence received since the RO's May 1994 decision is new, is not cumulative of other evidence of record, and is probative of the issue at hand. 3. The veteran has presented a plausible claim that his bronchial asthma is related to his military service. 4. During testimony offered by the appellant on June 21, 1999, and prior to the promulgation of a decision by the Board, the appellant requested to withdraw his notice of disagreement regarding his entitlement to nonservice- connected disability pension benefits. CONCLUSIONS OF LAW 1. The RO's May 1994 decision denying the veteran's claim of entitlement to service connection for bronchial asthma became final. 38 U.S.C.A. § 7105(b). 2. New and material evidence has been received since the RO's May 1994 decision, and the claim for service connection for bronchial asthma is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim of entitlement to service connection for bronchial asthma is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for withdrawal of a notice of disagreement by the appellant have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.204(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence to Reopen a Claim of Entitlement to Service Connection for Bronchial Asthma The RO denied the veteran's claim of entitlement to service connection for bronchial asthma in May 1994. At that time, the RO determined that the veteran had not submitted evidence that linked his bronchial asthma to his military service. The veteran did not appeal that determination, and the RO's May 1994 denial became final accordingly. 38 U.S.C.A. § 7105(b). However, a claim that is the subject of a prior final decision may nevertheless be reopened upon presentation of "new and material" evidence. See 38 U.S.C.A. § 5108. The veteran applied to reopen his claim in February 1997. (The Board notes that the veteran's claim was prior to June 9, 1998, the date after which Section 8202 of Public Law 105- 178, as amended by Public Law 105-206 by addition of section 1103 to title 38, Untied States Code, precludes claims for compensation for disability from diseases or injury due to use of tobacco products by a veteran during service.) When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received as contemplated by 38 C.F.R. § 3.156(a). "New and material" evidence is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. Id. Secondly, if new and material evidence has been presented, then immediately upon reopening the claim, VA must determine whether the claim is well grounded as contemplated by 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Finally, if the claim is found to be well grounded, its merits will be evaluated only after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107 has been met. The veteran has submitted a variety of evidence since the RO entered its May 1994 denial of service connection for bronchial asthma. This includes records of his VA and private medical treatment since 1984. Paramount among these documents is a statement from Noel U. Obedoza, M.D., dated June 16, 1999 and submitted at the veteran's hearing before the Board. Therein, Dr. Obedoza states that, in his opinion, the veteran has chronic pulmonary emphysema as a result of nicotine dependence that began during the veteran's military service. The veteran also submitted a medical certificate reflecting his treatment in 1986 for bronchial asthma, pulmonary emphysema, and chronic obstructive pulmonary disease. Although the veteran has also sought recently to reopen a claim for service connection for emphysema and that claim was denied by the RO in May 1999, a similar medical certificate dated in October 1994 tends to indicate that chronic obstructive pulmonary disease and emphysema are related to chronic bronchial asthma. Thus, the statement from Dr. Obedoza cannot reasonably be disassociated from the veteran's claim involving bronchial asthma when considered in connection with evidence previously assembled. The foregoing evidence is new and material in that it tends to confirm the veteran's assertions regarding continuity of symptomatology indicative of bronchial asthma since military service. As such the veteran's claim for service connection for bronchial asthma is effectively reopened. The next matter to be addressed is whether the claim is well grounded. To be well grounded, a claim for service connection for a given disability must incorporate evidence of a current disability, evidence of incurrence or aggravation of a disease or injury during service, and medical evidence of a nexus between the inservice injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Although the record does not demonstrate that bronchial asthma was present during service, various statements submitted by the veteran tend to indicate that he developed a nicotine dependence in service that, as noted above, gave rise to a pulmonary disability. Such evidence is probative of the issue at hand, and must be evaluated on the merits. In this respect, however, it is uncertain whether the veteran can furnish additional information specific enough in nature to enhance his claim. As such, the Board may not proceed to a "merits" determination without first remanding this issue to the RO for its consideration. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). II. Whether the Board Has Jurisdiction Over the Issue of the Veteran's Entitlement to Nonservice-Connected Disability Pension Benefits An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. A substantive appeal consists of a VA Form 9 or correspondence that sets out specific arguments relating to errors of fact or law made by the [RO] in reaching the determination or determinations being appealed. See 20.202 (1999). The Board may dismiss any appeal which fails to allege specific error of fact or law. 38 U.S.C.A. § 7105(d)(5). Conversely, a notice of disagreement may be withdrawn in writing before a timely substantive appeal is filed. See 38 C.F.R. § 20.204(a). In this case, the veteran was denied nonservice-connected disability pension benefits by the RO in October 1997. He then submitted a notice of disagreement during the following month. In response, the RO sent the veteran a new supplemental statement of the case in 1999 that addressed the issue of his lack of entitlement to that benefit. At his June 21, 1999, personal hearing before the undersigned, the veteran indicated that he had confused nonservice-connected disability pension benefits with a total disability rating based upon individual unemployability as a result of service- connected disability. See 38 U.S.C.A. § 1521; see also 38 U.S.C.A. § 501 (West 1991). The veteran further testified that he did not wish to apply for nonservice-connected disability pension benefits and he did not submit a substantive appeal. The veteran's testimony has been preserved in a transcript and is sufficient to meet the requirements of 38 C.F.R. § 20.204(a). Given the withdrawal of the veteran's notice of disagreement regarding the RO's denial of nonservice-connected disability pension, the Board lacks jurisdiction over this issue. See 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.202. ORDER The veteran's claim of entitlement to service connection for bronchial asthma is reopened; to this extent, the appeal is granted, subject to the directions set forth in the Remand portion of this decision that follows. The appeal regarding the veteran's entitlement to nonservice- connected disability pension benefits is dismissed. REMAND Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, as now limited by Public Law 105-206 amending Public Law 105-178, service connection may be granted for disabilities resulting from tobacco use or nicotine dependence. See 38 C.F.R. § 3.310(a) (1999); see also VAOPGCPREC 19-97 (May 13, 1997). In the instant case, the veteran claims that bronchial asthma arose as a result of his chronic use of tobacco which he contends began during military service. He has offered medical and lay evidence in support of this proposition. The Board recognizes that the veteran waived RO review of that evidence when he testified before the undersigned on June 21, 1999. See 38 C.F.R. § 20.1304(c). However, the overriding issue is the veteran's entitlement to a de novo review of this issue by the RO prior to Board consideration, given that his claim has effectively been reopened. See Bernard, 4 Vet. App. at 394. Further, VA has a duty to assist the veteran in well-grounded claims. In view of the foregoing, this case is REMANDED to the RO for action as follows: 1. The RO should conduct a de novo review of the veteran's claim of entitlement to service connection for bronchial asthma. All pertinent laws and regulations should be considered, including those related to nicotine dependence and smoking-related illnesses, and any assistance deemed necessary should be provided to the veteran in the development of his well-grounded claim including any necessary medical examination and opinion. 2. If the benefit sought on appeal remains denied, both the veteran and his representative should be furnished a supplemental statement of the case. They should also be given the appropriate time period in which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no action unless so informed. The purpose of this REMAND is to accord the appellant due process of law. No inference should be drawn regarding the final disposition of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). CHARLES E. HOGEBOOM Member, Board of Veterans' Appea