Citation Nr: 0004438 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-13 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems. 2. Whether there was clear and unmistakable error in a June 1977 Regional Office rating decision which denied entitlement to service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had active duty from January 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") was known as the United States Court of Veterans Appeals prior to March 1, 1999. Regarding the claim for new and material evidence, the Board notes that the United States Court of Appeals for the Federal Circuit has held that the Court erred in adopting the test articulated in Colvin v. Derwinski, 1 Vet. App. 171 (1991). See Hodge v. West, 155 F.3d 1356, 1363-64 (Fed. Cir. 1998). In Colvin, the Court adopted the following test with respect to the nature of the evidence which would constitute "material" evidence for purposes of reopening of a previously denied claim: "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome of the claim on the merits." Colvin, 1 Vet. App. at 174. In light of the holding in Hodge, the Board in its decision below will instead analyze the evidence submitted in the instant case according to the standard articulated in 38 C.F.R. § 3.156(a). In view of the fact that the Court has held in Fossie v. West, 12 Vet. App. 1 (1998), that the standard articulated in 38 C.F.R. § 3.156(a) is less stringent than the one previously employed by Colvin, the Board determines that no prejudice will result to the veteran by the Board's consideration of this matter. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). FINDINGS OF FACT 1. In a June 1977 decision, the RO denied service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems. 2. Evidence added to the record since the RO's June 1977 decision is not new and material. 3. The June 1977 rating decision was reasonably supported by the evidence then of record, and was consistent with VA law and regulations then in effect. CONCLUSIONS OF LAW 1. The RO's June 1977 decision, which denied service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems, is final. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156(a) (1999); 38 C.F.R. §§ 19.112, 19.118 (1976). 2. Evidence received since the June 1977 rating decision is not new and material to reopen the claim for service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The June 1977 rating decision, which denied service connection for a respiratory disorder characterized as chronic bronchitis, sinusitis, and breathing problems, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. § 105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will first discuss the issue of whether the veteran has submitted new and material evidence to reopen a previously denied claim for service connection. A discussion of clear and unmistakable evidence follows thereafter. New and Material An action or determination on a claim by the agency of original jurisdiction shall become final if an appeal is not initiated and perfected as prescribed in Rule 18 (§ 19.118) and the claim cannot thereafter be reopened or allowed, except as may be otherwise provided by Veterans Administration regulations in Title 38, Code of Federal Regulations. 38 U.S.C. § 4005(c)); 38 C.F.R. § 19.153 (1976). 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. 38 C.F.R. § 19.112 (1976). A notice of disagreement shall be filed within 1 year from the date of mailing of notification of the initial review or determination; otherwise, that determination will become final. 38 U.S.C. § 4005(b)(1); 38 C.F.R. § 19.118 (1976). The RO denied the veteran's claim for service connection for chronic bronchitis, sinusitis, and breathing problems, by a rating decision of June 1977. The decision was predicated on the fact that there was no evidence of chronic bronchitis; that the veteran had a history of sinus before service and the one time treatment in service was considered acute and no residuals were shown of an aggravation of that condition; and that the veteran's breathing problem was considered part of his post operative nose surgery and not aggravated by service. On June 15, 1977, the veteran was provided notice of the decision and his appellate rights. He failed to file a timely appeal. 38 C.F.R. §§ 19.112, 19.118 (1976); see also 38 U.S.C.A. §§ 7105(a), (b)(1) (West 1991); 38 C.F.R. § 20.200, 20.302(a) (1999). Therefore, the June 1977 rating decision became final when the veteran did not file a notice of disagreement within one year of the date he was notified of that unfavorable determination. 38 C.F.R. §§ 19.118, 19.153 (1976). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopen and allowed. The exception to this rule is 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New and material evidence" means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under construction, which is neither cumulative or 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. 38 C.F.R. § 3.156(a) (1999). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a three-step analysis. Winters v. West, 12 Vet. App. 203 (1999) (explaining the holding in Elkins v. West, 12 Vet. App. 209 (1999)). First, the Board must determine whether the appellant has submitted new and material evidence under 38 C.F.R. § 3.156(a). If the Board determines that the submitted evidence is not new and material, then the claim cannot be reopened. Second, if new and material evidence has been presented, then immediately upon reopening the claim the Board must determine whether, based on all the evidence of record in support of the claim, presuming the credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well-grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well-grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters and Elkins, both supra; see also Manio v. Derwinski, 1 Vet. App. 140 145-46 (1991). The Court has held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). Below the Board reviews veteran's request to reopen his claim for service connection for a respiratory disorder, characterized as chronic bronchitis, sinusitis, and breathing problems. The evidence of record at the time of the June 1977 rating decision, included the veteran's service medical records, and VA medical records showing the veteran's hospitalization from February 1977 to March 1977. As recited in the June 1977 rating decision, the RO included review of these records in its findings. The RO indicated that the service medical records showed that at the time of enlistment, the veteran's medical history included surgery on the nose at age 16 and sinus problems at age 16. Examination at enlistment showed nasal septum deviated with some compromise of breathing, and that the veteran was seen on February 10, 1975 and February 16, 1975 for complaint of sinus problem. Nasal mucosa was pale, swollen, and nasal breathing somewhat restricted. The Board notes here that its review of the service medical records also shows that on January 3, 1975 the veteran continued to have a bad cough, for which cough syrup was prescribed. On a subsequent January entry, it was noted that the veteran presented for persistent symptoms. The impression was chronic respiratory allergies with chronic bronchitis, and nasal obstruction, chronic. The February 16th record also indicated "sinusitis." VA hospitalization records show that the veteran was hospitalized from February 8, 1977 to March 4, 1977 for possible cyst or mucocele of the left maxillary sinus and that head, ear, nose, and throat revealed normal nasal mucosa with no evidence of polyp in either naris. The throat was unremarkable and the lungs were clear. X-ray facial sinuses revealed possible evidence of cyst or mucocele of left maxillary sinus. In a letter dated June 15, 1977, the RO notified the veteran that chronic bronchitis and sinusitis were not service- connected. As previously stated, the veteran did not thereafter initiate an appeal on this determination, and it became final. In June 1993, the veteran initiated another claim for entitlement to service connection for bronchial and respiratory problems. In August 1993, the RO notified the veteran that his claim for service connection for bronchitis was previously considered and denied, and that he needed to submit evidence showing that his disability was incurred in or aggravated by his military service. Additional records were received to reopen the veteran's claim. Additional records received for the record since the June 1977 rating decision, include VA hospital and treatment medical records, private medical records, Social Security Administration records, and personal hearing testimony. VA hospital and treatment medical records show that the veteran was hospitalized from April 1993 to July 1993, for the admission of polysubstance abuse. June 1993 records, therein, show that the veteran underwent pulmonary function testing. Severe airway obstruction was present. The preliminary pulmonary function diagnosis was severe obstructive airways disease-reversible. The discharge diagnoses included, in part, for asthma and chronic obstructive pulmonary disease. Later in July 1993, the veteran was seen on an outpatient basis for adjustment of his inhaler dosage/type. Included in a September 1993 psychological evaluation was a diagnosis of Axis III-asthma, and chronic obstructive pulmonary disease. Private medical records show that the veteran underwent a series of pulmonary functions tests at St. Clare Hospital, on November 26, 1994. Graphs showing the forced velocity parameters and all other readings are of record. There is no corresponding interpretation of the graphs and charts submitted. The veteran was hospitalized at VA for a year, from February 1994 to February 1995. He was admitted for lack of psychosocial supports and homelessness. The discharge diagnoses included, chronic obstructive pulmonary disease, with asthma, and chronic bronchitis and chronic sinusitis, with surgery done on the sinuses in 1977. Chronic obstructive pulmonary disease was included in an August 1995 outpatient treatment record. The veteran was seen in July 1996 and August 1996 for control of the respiratory disorders. He received a refill prescription in January 1997. Social Security Administration records show that the veteran became entitled to monthly disability benefits beginning July 1995. In September 1998, the veteran testified at a personal hearing at the RO. He testified that he had a surgical procedure with his sinuses or nasal septum when he was 16 years old. He said that he had no history of bronchitis, asthma, or any lung disorder prior to service. While in service, he worked in the engine rooms in high temperatures and went to sick call often with problems about breathing. The representative highlighted that service medical records showed that the veteran was seen in January 1975, shortly before his discharge, for chronic upper respiratory symptoms with nasal congestion, eyes watering, chronic cough, and occasional dyspnea on extertion, and impression at the time was chronic respiratory allergies with chronic bronchitis. The representative emphasized that the rating decision in June 1977 failed to mention an inservice finding, shown in the service medical records, of chronic bronchitis; and, that rather, the RO found that there was no evidence of chronic bronchitis. The Board has considered the veteran's case and determines that the additional evidence submitted in this case is not new and material because it does not bear directly and substantially upon the specific matter under construction; here, it does not bear directly and substantially upon whether the veteran had a chronic respiratory disorder which began in service, and continued post-service. While the veteran and his representative argue that the veteran was first diagnosed with chronic bronchitis in service, that he had no preexisting respiratory disorders, and that the RO did not consider the notation in the service medical records showing a diagnosis of chronic bronchitis, the issue on appeal is whether he has presented new and material evidence to reopen the claim that in June 1977 denied that he had a chronic respiratory disorder which began in service. It was at that time, after he received notification of the denial, that the veteran should have appealed his claim and made these arguments if he believed that the medical evidence of record was in his favor. It was at that time that the representative should have argued that the service medical records supported the veteran's theory of having a chronic condition. Since the veteran did not appeal the June 1977 rating action, it became final. The only way to reopen that claim is to present new and material evidence; or to argue that clear and unmistakable error was made in the prior rating action, which the veteran has also asserted on this appeal. The veteran must present evidence that is new and material to reopen the finally denied June 1977 rating decision, and, as indicated above, the additional evidence received for the record pertains to the veteran's treatment and hospitalizations during the 1990's, as well as the fact that he receives Social Security Administration benefits. In sum, the additional evidence received for the record does not pertain to whether the veteran's inservice manifestations of bronchitis, sinusitis and respiratory disorders were other than acute and transitory, and were in fact chronic, and linked to post-service medical disorders; which is what the additional evidence presented for the record needs to show in order to be considered new and material. The Board determines that the newly submitted evidence is cumulative and redundant in the sense that in June 1977, the RO considered the veteran's post- service medical condition, as it was shown in the 1977 VA hospitalization records. The additional records received also chronicle the veteran's post-service disorders. Those records do not show a nexus between the current disorders diagnosed and service, or that any current respiratory disorders had their onset in service. Therefore, the Board must conclude that the newly submitted evidence taken by itself or in connection with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. That being the case, the veteran's claim is denied. With regard to the representative's request in an April 1999 statement, for a medical examination and an opinion as to the etiology of the veteran's inservice and post-service respiratory conditions, the Board determines that medical examination of the veteran is not warranted at this time, as he has not crossed the initial procedural threshold in this case of presenting new and material evidence. Clear and Unmistakable Error (or CUE) The Court has propounded the following three-part test to determine whether clear and unmistakable error is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; 2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). Generally, the regulatory authority for reversing or remanding a prior adjudication on the basis of clear and unmistakable error is found at 38 C.F.R. § 3.105(a) (1999). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). To establish a valid claim of CUE, the "appellant must show that '[e]ither the correct facts, as they were known at the time, were not before the adjudicator[,] or the statutory or regulatory provisions extant at the time were incorrectly applied. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.'" Luallen v. Brown, 8 Vet. App. 92, 94 (1995) (quoting Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc)). Furthermore, in order for a claim of CUE to be reasonably raised, "the [appellant] must provide some degree of specificity as to what the alleged error is, and, unless it is the kind of error that, if true, would be CUE on its face, 'persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error.'" Eddy v. Brown, 9 Vet. App. 52, 57 (1996) (quoting Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Luallen, supra. The veteran, who is the "appellant" in this case, essentially contends that he was first diagnosed with chronic bronchitis while on active duty, and that chronicity and continuity of the condition subsequent to release of active duty, to include chronic obstructive pulmonary disease, is of record (see representative's statement, April 27, 1999). More specifically, in the veteran's other contention documents and personal hearing testimony of September 1998, the veteran argues that there was clear and unmistakable error in the RO's June 1977 decision, because the RO did not consider the service medical records in their entirety. Namely, the veteran contends that the RO did not consider a January 1975 entry showing that the veteran had chronic bronchitis. Evidence of record at the time of the June 1977 rating decision consisted of service medical records, and VA post- service hospitalization records from 1977. These records were discussed in detail above and are referenced herein. The law extant at the time of the June 1977 rating decision was essentially predicated on the same principles used for service connection today. The principles relating to service connection at the time of the June 1977 rating decision were codified at 38 C.F.R. § 3.303 (1976). Therein, it was noted that service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. Id. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date however remote, are service connected, unless clearly attributable to intercurrent causes...For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."....38 C.F.R. § 3.303(b). A pre-existing injury disease will be considered to have been aggravated by active military, naval or air 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 C.F.R. § 3.306 (1976). Based upon the evidence of record at the time of the June 1977 rating decision, the Board finds that it was not clear and unmistakable error for the RO to deny service connection for a chronic respiratory disorder, whether it be bronchitis, sinusitis or the breathing problems. In this regard, objective medical evidence showed that when the veteran was evaluated in December 1973, for enlistment purposes, he underwent an ear, nose and throat consultation. At that consultation, the impression after evaluation of the veteran, was that he had nasal septum deviated, with some compromise of breathing . It was determined that under Army regulations, the veteran was fit for enlistment. The remainder of the service medical records show occurrences of the veteran being seen for a cough in January 1975, later that month said to be chronic respiratory allergies with chronic bronchitis and nasal obstruction, chronic; and sinus problems shown in February 1975, including one notation of sinusitis. The post-service hospital record showed that the veteran was hospitalized two years after service for cough and difficulty breathing through the nose. Those records did not indicate that the veteran had a chronic respiratory condition which stemmed from service. Nor are there any records showing that the veteran had the alleged condition within the one year presumptive period. Rather, the 1977 post service medical records showed only that the veteran had an unremarkable history, except for possible operation on frontal nasal sinus at age 16. Furthermore, at the time of his hospitalization it was certainly not indicated that his current symptomatology and corresponding diagnoses, of possible cyst or mucocele on the left maxillary sinus, status post sinus problem by history and accelerated conduction with unknown significance, were related to the inservice occurrences. Therefore, the Board finds the evidence of record, was consistent with the denial of service connection. As the evidence then of record did not satisfy the criteria for the entitlement of service connection, it was not clear and unmistakable error for the RO to have denied the veteran's claim. Accordingly, the Board does not find clear and unmistakable error in the June 1977 rating decision as the correct facts were before the adjudicators and the law was properly applied. That being said, it appears as though the veteran's contentions are that the correct facts were not before the adjudicators, and that the RO somehow "missed" a pertinent fact. That is, the veteran has strongly insisted, in the context of his claim, that the RO failed to consider all of the service medical records that were in their possession at the time of the decision. It is alleged that the RO found in it's rating decision that there was no chronic bronchitis, even though there is an entry in the service medical records showing "chronic bronchitis." In the decision section of the June 1977 rating decision, the RO stated: There is no evidence of chronic bronchitis...the veteran had a history of sinus before service and the one time treatment in service is considered acute and no residuals (are) shown of an aggravation of this condition. The veteran's breathing problem is considered part of his post-operative nose surgery and not aggravated by service. Indeed, elsewhere in the rating decision, the RO did not reference the January 1975 treatment records, as the Board has noted in its the above discussion. However, the RO stated that it had reviewed the service medical records. Just because the RO did not cite to the January records, does not mean that it did not consider them, as, again, the RO stated that it had reviewed the service medical records. More importantly, is that the post service records did not show evidence of chronic bronchitis or that any of the alleged respiratory disorders were related to service. The omission of a cite to the January 1975 records which indicted "chronic bronchitis," does not show that the correct facts, as they were known at the time, were not before the adjudicator. The veteran's argument is more akin to a simple disagreement as to how the facts were weighed or evaluated. The veteran has not alleged, nor does the Board find that the statutory or regulatory provisions extant at the time were incorrectly applied. Therefore, the first prong of the test for clear and unmistakable error is not met. The second prong, that the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made" is not shown simply because, even if the RO failed to see or consider the January 1975 entry of "chronic bronchitis," there were no post- service medical records at the time of the June 1977 decision to link and show that the disorder was other than acute and transitory. The RO based its analysis on the law extant at that time, 38 C.F.R. §§ 3.303, 3.306 (1976), effective in June 1977. In conclusion, the Board notes that the essence of a claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo, at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). On the basis of the above analysis, the Board finds that the veteran has not met this burden, and, therefore, the June 1977 RO decision did not involve clear and unmistakable error and is final. 38 U.S.C.A. §§ 1155, 5107, 5108, 7105; 38 C.F.R. §§ 3.303, 3.306 (1976), § 3.104, 3.105(a) (1999). ORDER New and material evidence having not been submitted to reopen a claim for entitlement to service connection for a chronic respiratory disorder, the claim remains denied. Clear and unmistakable error having not been found in a June 1977 RO rating decision, entitlement to service connection for a chronic respiratory disorder remains denied. Deborah W. Singleton Member, Board of Veterans' Appeals