BVA9504596 DOCKET NO. 93-01 267 ) DATE ) ) On appeal from the decision of 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 of entitlement to service connection for bronchial asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from June 1946 to September 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1992 by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that new and material evidence sufficient to reopen his claim of entitlement to service connection for bronchial asthma has been submitted. He maintains that service connection for bronchial asthma is warranted because this condition was incurred during service, or in the alternative, it was aggravated during active service. In addition, the veteran asserts that he was never notified of the original rating decision that denied his claim of entitlement to service connection for bronchial asthma. Therefore, he requests a favorable determination by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 new and material evidence has been submitted to reopen a claim of entitlement to service connection for bronchial asthma. That evidence, however, when considered with all other evidence of record, does not provide a basis for allowance of this claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. In a November 1946 rating decision, the RO determined that the veteran was not entitled to service connection for bronchial asthma. The veteran did not appeal that determination. 3. The additional evidence associated with the claims file subsequent to the November 1946 rating decision is not cumulative and provides information that was not already of record which is relevant and probative of the issue at hand. 4. The veteran had bronchial asthma prior to his entrance into active service. 5. The veteran's bronchial asthma did not increase in severity during active service. CONCLUSIONS OF LAW 1. The November 1946 rating decision that determined that the veteran was not entitled to service connection for bronchial asthma is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (1993). 2. The evidence received since the RO denied entitlement to service connection for bronchial asthma is new and material and the veteran's claim for that benefit is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 3. Bronchial asthma was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that in Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993), the United States Court of Veterans Appeals (Court) held that when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question. The Court further found that the Board must also consider whether the claimant has been given the opportunity to submit such evidence and argument and to address that question at a hearing, and if not, whether the claimant has been prejudiced thereby. Id. at 394. It is acknowledged that the RO has reached a conclusion contrary to the one the Board has reached regarding whether new and material evidence has been submitted to reopen the veteran's claim. Nevertheless, the Board finds that the veteran will not be prejudiced by a decision on the merits of his appeal as the veteran and his representative have consistently presented and argued the veteran's claim on the merits, rather than on whether new and material evidence to reopen the previously denied claim had been submitted. Service connection for bronchial asthma was denied in a November 1946 rating decision. The relevant evidence of record at that time consisted of the veteran's service medical records. These records indicate that the veteran complained of bronchial asthma in July 1946 at which time this condition was noted to have existed prior to service. In September 1946, the veteran was diagnosed with severe bronchial asthma of an undetermined cause and was hospitalized. During his hospitalization, the veteran reported that he had experienced asthmatic attacks all of his life and that his current attacks were no more severe than his previous ones. The veteran was discharged from the hospital after approximately two weeks and he was subsequently separated from service due to his bronchial asthma. If a notice of disagreement is not filed within the prescribed period, an RO decision on a claim becomes final, the claim may not thereafter be reopened and allowed, except on the basis of new and material evidence. See 38 U.S.C.A. §§ 5105, 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If it is determined that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers 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. 38 C.F.R. § 3.156(a). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). When determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Once the evidence is found to be new and material, however, the presumption that it is credible and entitled to full weight no longer applies. Id. at 513. The evidence that has been added to the record since the November 1946 rating decision includes VA hospital summaries dated in 1947, 1948, and 1955; a February 1947 statement from P.M. Sherrill, M.D.; a March 1947 statement from O.L. Raines; a June 1947 statement from the veteran; a July 1947 statement from G.C. Rierson; a January 1980 statement from W.O. Whetsell, M.D.; VA outpatient treatment records dated from November 1980 to April 1992; and the transcript of the veteran's November 1992 personal hearing. The February 1947 VA hospital summary indicates that the veteran was hospitalized from January 1947 to February 1947. This summary notes that since the veteran's discharge from service, he had experienced a number of attacks of dyspnea, wheezing, and tightness of his chest with accompanying cough and expectoration. Upon examination, the veteran was undernourished and evidence of a mild expiratory dyspnea was noted. In addition, a number of musical rales were scattered over both aspects of his chest. Diagnoses of chronic bronchial asthma and malnutrition were recorded. The February 1947 statement from Dr. Sherrill reveals that he treated the veteran for bronchial asthma in September 1944 and February 1945. The March 1947 statement from O.L. Rains indicates that the veteran did not experience any asthma attacks from April 1944 to September 1944 as well as during other unspecified periods. The March 1947 VA hospital summary shows that the veteran was hospitalized due to numerous symptoms including cough, fever, and tightness of his chest. The veteran was noted to have scattered and sonorous rales with deep rhonchi over both aspects of his chest. Diagnoses of acute influenza, chronic bronchial asthma, and malnutrition were recorded. The veteran submitted a statement dated in June 1947 that indicates that he was not sick or attended to by a physician from August 1945 to June 1946. The July 1947 statement from G.C. Rierson indicates that the veteran did not have any asthma attacks from August 1945 to June 1946. The October 1948 VA hospital summary shows that the veteran was hospitalized due to complaints of recurrent asthma attacks. Upon examination, expiration was prolonged and there were wheezes and rhonchi throughout both lung fields. The pleura was thickened at the right base and the lungs were clear. The veteran's asthma cleared promptly with the administration of adrenalin, ephedrine, and mild sedation. Diagnoses of asthma and malnutrition were recorded. The March 1955 VA hospital summary indicates that the veteran was hospitalized from February 1955 to March 1955 for an ulcer and malnutrition. The January 1980 statement from Dr. Whetsell reveals that the veteran sought treatment for a respiratory infection with complaints of dyspnea, weakness, and pain in the lower part of his back and joints. Dr. Whetsell recommended that the veteran be evaluated at a VA hospital. The VA outpatient treatment records dated from November 1980 to April 1992 show that on a number of occasions, the veteran complained of chest congestion and of experiencing difficulty breathing. In 1991, he was diagnosed with chronic obstructive pulmonary disease. During his November 1992 personal hearing, the veteran testified that he did not have bronchial asthma or any other type of respiratory problem prior to his entrance into active service. He further indicated that he had never sustained any type of injury to his chest or lungs. In fact, the veteran stated that he first developed respiratory problems during service when he received training in a gas chamber. Lastly, the veteran noted that he was currently receiving treatment for his respiratory condition. The March 1947 statement from O.L. Raines, the veteran's June 1947 statement, the July 1947 statement from G.C. Rierson, and the transcript of the veteran's November 1992 personal hearing constitute new evidence in that they are not cumulative or redundant of evidence that the RO considered in November 1946. In addition, this evidence is material as it addresses the veteran's asthma condition prior to his entrance into service. Since new and material evidence has been presented, the veteran's case is reopened and the merits of the veteran's claim in light of all the evidence, both new and old, will be evaluated. See Manio, 1 Vet.App. at 145. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the purposes of 38 U.S.C.A. § 1110, every veteran is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment or where clear and unmistakable evidence demonstrates the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (1993). In addition, a preexisting injury or 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The veteran contends that he did not have bronchial asthma prior to his entrance into active service and has submitted statements from O.L. Raines and G.C. Rierson to support this contention. These statements, however, indicate that the veteran did not experience an asthma attack only from April 1944 to September 1944 and from August 1945 to June 1946. In addition, even the veteran's June 1947 statement reveals that he did not experience an asthma attack only between August 1945 and June 1946. As previously mentioned, the veteran was diagnosed with bronchial asthma in July 1946. At that time, it was noted that this condition existed prior to the veteran's entrance into active service. In addition, in September 1946, the veteran reported that he had experienced asthma attacks all of his life and that they were no worse at that time than prior to his entrance into active service. Further, a February 1947 statement from Dr. Sherrill indicates that he treated the veteran for bronchial asthma in September 1944 and February 1946. The Board finds that these statements clearly and unmistakably demonstrate that the veteran's bronchial asthma existed prior to his entrance into active service. Consequently, the "presumption of soundness" afforded by 38 U.S.C.A. § 1111 is rebutted by the evidence of record. The question therefore becomes one of whether the veteran's bronchial asthma was aggravated by active service. The evidence of record does not establish that service connection for bronchial asthma is warranted. In this regard, it is noted that although the veteran experienced bronchial asthma attacks during service, these were apparently acute and transitory and did not result in any permanent residuals. In fact, the evidence of record indicates that after seeking treatment for asthma attacks in 1947 and 1948, the veteran did not again seek treatment for this condition until January 1980. Given all the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for bronchial asthma. As such, there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim which would give rise to a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). Lastly, the Board wishes to address the veteran's assertion that he was never provided with notice of the November 1946 rating decision that denied his claim of entitlement to service connection for bronchial asthma. In particular, the Board notes that the claims file contains a copy of a letter dated in November 1946, and mailed to the address provided by the veteran in an October 1946 application for educational benefits, that informed the veteran that his claim for service connection had been denied. In addition, the veteran was notified in April, October, and November 1947 that the previous denial of his claim of entitlement to service connection for bronchial asthma had been confirmed and continued. ORDER Service connection for bronchial asthma is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.