Citation Nr: 0002065 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-08 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active naval service from April 1944 to June 1945. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Oakland Regional Office (RO) April 1997 rating decision which denied a request to reopen a claim of service connection for a respiratory disability. REMAND Subsequent to the last supplemental statement of the case issued in November 1998, a statement from the veteran and a computer printout were associated with the claims folder. The foregoing were furnished in conjunction with testimony provided at a video conference hearing in September 1999. The RO has not yet issued another supplemental statement of the case in connection with this pertinent evidence of record in this case. 38 C.F.R. §§ 19.31, 19.37, 20.1304 (1999). In June 1986, the RO denied the veteran's claim of service connection for a respiratory disability. In denying service connection, the RO indicated that the veteran's service medical records were negative for asthma and showed treatment for acute bronchitis which resolved. She contends that she has a respiratory disability of service origin, and she maintains that she has submitted new and material evidence to warrant reopening of her claim of service connection for a respiratory disability. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially on 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) (1998). This definition was recently endorsed by the U.S. Court of Appeals for the Federal Circuit. See Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). By May 1997 statement, the veteran's sister indicated that the veteran had incurred bronchial asthma during her naval service. At the September 1999 video conference hearing, the veteran testified that she was treated for respiratory problems in service at Coronado Island, that a military doctor advised her that the ocean air was not good for her, and she was transferred to the Naval Ordnance Testing Station at China Lake, California, because of the dryer climate there. She reported that she continued to have problems with bronchitis, causing her service discharge, and that she now had asthma. At the hearing in September 1999, a county veterans service representative indicated that he had known the veteran since approximately 1996. He stated that he helped her in connection with her claim by speaking to a "John Castle (VAMC 5243)" who reportedly located at a records repository in San Bruno the veteran's records of treatment at the Fresno VA Hospital, dating back to 1953. If available, such records could be pertinent to this claim. In this case, the Board is required to satisfy a pre-duty-to- assist requirement imposed pursuant to Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam) (records in constructive possession of VA). In view of the foregoing, the case is REMANDED for the following development: 1. The RO should contact John Castle (or another similarly situated individual, if he is unavailable) at the Fresno VA Medical Center (MC) and request that copies of any clinical records be provided relative to the treatment of the veteran's respiratory disability, dating back to 1953 or earlier. If such information is unavailable at the Fresno VAMC, the RO should request copies of all records identified by the veteran and her representative at the September 1999 hearing from the records depository in San Bruno for association with the claims folder. 2. After the above development has been completed, the RO should review the record to ensure compliance with this remand. If any development requested above has not been furnished, or additional development is deemed warranted, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disability. If the benefit sought on appeal is not granted, the veteran and her representative should be provided another supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J.F. GOUGH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the U.S. Court of Veterans Appeals. This 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) (1998).