On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia
THE ISSUES
1. Whether new and material evidence sufficient to reopen a
claim for service connection for residuals of a paratracheal
mass.
2. Entitlement to service connection for residuals of a
paratracheal mass.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran & Dr. C.B.
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1957 to July 1961
and from September 1961 to January 1968.
This appeal comes before the Board of Veterans' Appeals
(Board) from an April 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Huntington,
West Virginia, which found there was not new and material
evidence to reopen the claim for service connection. The
veteran testified at a hearing in April 2008 before the
undersigned Acting Veterans Law Judge.
The veteran provided additional documentary evidence
following an August 2007 supplemental statement of the case.
At the April 2008 hearing, the veteran waived of agency of
original jurisdiction consideration. Therefore, appellate
review may proceed. See 38 C.F.R. § 20.1304 (2007).
At the April 2008 hearing, the veteran clarified that he is
seeking service connection for the residuals of a
paratracheal mass. The Board finds that the issue as stated
on the title page better reflects the veteran's claim.
FINDINGS OF FACT
1. In an April 1973 decision, the Board denied service
connection for a paratracheal mass
2. Evidence added to the record since the April 1973 Board
decision denying service connection relates to an
unestablished fact necessary to substantiate the veteran's
claim.
3. The veteran's paratracheal mass began in service and has
been continually present ever since.
CONCLUSIONS OF LAW
1. New and material evidence pertinent to the claim of
entitlement to service connection for residuals of a
paratracheal mass has been presented and the claim can be
reopened. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156(a) (2007).
2. Resolving the benefit of the doubt in the veteran's
favor, a paratracheal mass was incurred in service. 38
U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking service connection for residuals of a
paratracheal mass.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Here, the Board
is granting the veteran's request to reopen his claim and his
request for service connection. Thus, no further discussion
of the VCAA is required.
New and Material Evidence to Reopen the Claims
A claim that has been denied, and not appealed, will not be
reopened. See 38 U.S.C.A. §§ 7104(b), 7105(c), 38 C.F.R. §§
3.104(a), 3.160(d), 20.302(a). The exception to this rule
provides that if new and material evidence is presented or
secured with respect to the disallowed claim, the Secretary
shall reopen the claim and review the former disposition of
the claim. See 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156.
"New evidence" means existing evidence not previously
submitted to agency decisionmakers. "Material evidence"
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. See 38 C.F.R. §
3.156. When determining whether a claim should be reopened,
the credibility of the newly submitted evidence is to be
presumed. See Justus v. Principi, 3 Vet. App. 510 (1992).
The claims file contains a November 2007 specialist's opinion
which opines that the veteran's paratracheal mass began in
service. This evidence was not previously submitted, and is
therefore "new." As the evidence shows the paratracheal mass
began in service and has been continuous ever since, a fact
not previously established, it is considered "material." New
and material evidence has therefore been submitted, and the
claim for service connection for residuals of a paratracheal
mass is reopened. Here, the Board finds that development is
complete and the Board can therefore make a decision on the
merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Service Connection
The veteran seeks service connection for residuals of a
paratracheal mass. Having carefully considered the claim in
light of the record and the applicable law, the Board is of
the opinion that the evidence is at an approximate balance
and the appeal will be allowed.
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease contracted in the line of duty
in the active military, naval or air service. 38 U.S.C.A. §
1110; 38 C.F.R. § 3.303. That an injury incurred in service
alone is not enough. There must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Service connection may also be granted for certain chronic
diseases when such disease is manifested to a compensable
degree within one year of separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307,
3.309. In addition, service connection may be granted for
any disease diagnosed after discharge, when all of the
evidence, including that pertinent to service, establishes
that a disease was incurred in service. 38 C.F.R. §
3.303(d). Generally, to prove service connection, the record
must contain: (1) medical evidence of a current disability,
(2) medical evidence, or in certain circumstances, lay
testimony of an inservice incurrence or aggravation of an
injury or disease, and (3) medical evidence of a nexus
between the current disability and the inservice disease or
injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v.
Brown, 7 Vet. App. 498 (1995).
The veteran has a current diagnosis of a paratracheal mass,
as reflected in the November 2007 opinion of Dr. Craig Bash,
who based his diagnosis, in part, on a 2006 computed
tomography (CT) scan of the chest which is not associated
with the claims file. The remaining question, therefore, is
whether there is evidence of an inservice occurrence of an
injury or disease and medical evidence of a nexus or
relationship between the current disability and the inservice
disease or injury.
Radiologic examination at the time of the veteran's entry
into service in July 1957 was negative for any abnormalities.
The veteran was seen in February 1960 for chest pain, and
calcified hilar and paratracheal nodes on the right side were
noted. Shortly after discharge, in February 1968, the
veteran was advised by the United States Navy that radiologic
reports from the time of his separation show a condition
which should be further evaluated. The veteran was advised
to obtain further radiologic examination of the chest and
further studies. A March 1972 radiologic examination of the
chest showed a nodular formation in the right upper
mediastinal margin, which could have been due to lymph nodes
or granulation. In a VA discharge summary, dated July 1972,
a VA doctor states that he compared the March 1972 radiologic
film with the one from separation, and that there was no
difference in the size of the mass. The VA doctor was unable
to identify specific granulomatous disease and tuberculosis
tests were negative. The veteran was diagnosed with a
paratracheal mass, etiology undetermined but probably
granulomatous in type.
Subsequent medical records clearly show a paratracheal mass
on the right side from the time of service up until the
present. Radiologic examination many years later, in July
1990, still showed a right paratracheal mass. According to
Dr. Bash, a 2006 CT scan also showed a right paratracheal
mass. Dr. Bash also noted at the veteran's April 2008
hearing that the veteran experienced a lot of pain,
tenderness, and weakness in his upper right shoulder,
probably due to the large mass on the right side.
The November 2007 opinion of Dr. Bash is of great import in
this matter. Dr. Bash states that it is impossible that the
mass pre-existed service, as radiologic examination of the
chest at that time was negative. Dr. Bash opines that the
veteran may have had tuberculosis in service, despite a
sample not showing tuberculosis. Based on the available
imaging, Dr. Bash found that the veteran's paratracheal mass
began in service. Dr. Bash testified at the April 2008
hearing that he had reviewed all of the available medical
records, including chest films and CT scans, service medical
records, lay statements, recent rating decisions, other
medical opinions, and relevant medical literature. He also
performed a physical examination on the veteran.
The Board finds the opinion of Dr. Bash is credible evidence
that the veteran's paratracheal mass began in service and has
been continually present ever since. See Guerrieri v. Brown,
4 Vet. App. 467, 470-71 (1993) (the probative value of a
medical opinion is based on the medical expert's personal
examination of the patient, knowledge and skill in analyzing
the data, and medical conclusion). Also favorable to the
veteran's claim is the July 1972 discharge summary comparing
the March 1972 radiologic film with the one from separation
and noting there was no difference in the size of the masses.
Taken together, the Board finds that this is sufficient
evidence upon which to grant the veteran's claim.
There can be no doubt that further medical inquiry could be
undertaken with a view towards development of the claim,
particularly with regards to the exact medical cause of the
veteran's paratracheal mass; however, such development would
not materially assist the Board in this determination. Under
the "benefit-of-the-doubt" rule, where there exists "an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter," the veteran shall prevail upon
the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see
also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).
The mandate to accord the benefit of the doubt is triggered
when the evidence has reached such a stage of balance. In
this matter, the Board is of the opinion that this point has
been attained. As a state of relative equipoise has been
reached in this case, the benefit of the doubt rule will
therefore be applied and service connection for residuals of
a paratracheal mass will be granted. See Alemany v. Brown, 9
Vet. App. 518, 519 (1996). Accordingly, service connection
for residuals of a paratracheal mass is warranted.
ORDER
New and material evidence having been submitted, the claim
for service connection for residuals of a paratracheal mass
is reopened.
Service connection for residuals of a paratracheal mass is
granted.
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
