Citation Nr: 0910301 Decision Date: 03/19/09 Archive Date: 03/26/09 DOCKET NO. 07-28 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for left leg trauma, to include as secondary to a low back disorder. 3. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a skin disorder, to include as secondary to radiation exposure. 4. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a lung disorder. 5. Entitlement to service connection for a lung disorder. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1958. He additionally had Reserve service with periods of active duty for training from September 30, 1960 to November 29, 1960, August 11, 1963 to August 24, 1963, March 14, 1965 to March 26, 1965 and November 6, 1965 to November 19, 1965. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of March 2007 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in North Little Rock, Arkansas which determined that new and material evidence had not been submitted to reopen previously denied claims for the enumerated issues. The reopened claim for service-connection for a lung disorder is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. An August 2004 rating decision denied the Veteran's claim for service connection for a low back disorder. The Veteran was provided notification of the rating decision and of his appellate rights later in August 2004 and again in October 2004; however, he did not appeal this determination. 2. New evidence received since the August 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim. 3. A January 2004 rating decision denied the Veteran's claim for service connection for a left leg trauma secondary to his low back disorder. The Veteran was provided notification of the rating decision and of his appellate rights in February 2004; however, he did not appeal this determination. 4. New evidence received since the January 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim. 5. An August 2004 rating decision denied the Veteran's claim for service connection for a skin disorder, to include as secondary to radiation exposure. The Veteran was provided notification of the rating decision and of his appellate rights later in August 2004 and again in October 2004; however, he did not appeal this determination. 6. New evidence received since the August 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim. 7. A May 1999 rating decision denied the Veteran's claim for service connection for a lung disorder. The Veteran was provided notification of the rating decision and of his appellate rights later in May 1999; however, he did not appeal this determination. 8. New evidence received since the May 1999 rating decision does relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2004 rating decision denying service connection for a back disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.302, 20.1103 (2008). 2. New and material evidence has not been received since the August 2004 rating decision, and the claim for service connection for a back disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2008). 3. The January 2004 rating decision denying service connection for a left leg trauma, to include as secondary to a back disorder, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.302, 20.1103 (2008). 4. New and material evidence has not been received since the January 2004 rating decision, and the claim for service connection for a left leg trauma, to include as secondary to a back disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2008). 5. The August 2004 rating decision denying service connection for a skin disorder, to include as secondary to radiation exposure is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.302, 20.1103 (2008). 6. New and material evidence has not been received since the August 2004 rating decision, and the claim for service connection for a skin disorder, to include as secondary to radiation exposure is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2008). 7. The May 1999 rating decision denying service connection for a lung disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.302, 20.1103 (2008). 8. New and material evidence has been received since the May 1999 rating decision, and the claim for service connection for a lung disorder is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the Veteran's claim to reopen was received in September 2006. Prior to adjudication of these issues in March 2007 the RO sent a letter addressing all appellate issues in September 2006 and sent a letter further addressing the radiation claim in January 2007. In regards to the issue of service connection for the lung disorder, the Board is reopening this claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Thus the rest of the discussion regarding the duty to assist pertains to the remaining claims to reopen. The Veteran was provided initial notice of the provisions of the duty to assist as pertaining to entitlement to service connection, which included notice of the requirements to prevail on these types of claims and of his and VA's respective duties. The duty to assist letter notified the Veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The Veteran was also asked to advise VA if there were any other information or evidence he considered relevant so that VA could help by getting that evidence. The January 2007 letter regarding the radiation claim provided an enclosed radiation risk activity sheet which it asked him to fill out and return. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. This notice was provided in the September 2006 letter. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the notice letter provided to the appellant in September 2006 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied for each issue. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the element(s) required to establish service connection that were found insufficient in the previous denial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service treatment records were previously obtained and associated with the claims folder. Furthermore, VA, Social Security and private medical records were obtained and associated with the claims folder. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Notably, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). There is no need for a VA examination in this instance where the records show no evidence sufficient to reopen the claims for a back disorder, left leg trauma and for a skin disorder. In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 5103A have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claim to reopen, avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim decided on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. New and Material Evidence Prior unappealed decisions of the Board and the RO are final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1104 (2008). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2008). 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a back disorder was initially denied by a final Board decision of June 1974 which stated that the back injury shown in service from falling, was acute and transitory without residuals and that mild arthritis of the spine was not manifested until many years after service had ended. There were several subsequent final RO and Board denials of multiple attempts to reopen this claim including Board denials in January 1981, January 1985, December 1987 and a February 1990 Board denial which was upheld by the Court in September 1991. The most recent final denial of this issue was in an August 2004 rating decision which determined that new and material evidence had not been submitted to reopen the previously denied claim. Notice was sent the same month. The Veteran did not appeal and this became final. This final August 2004 rating also denied an original claim for service connection for a skin condition due to radiation exposure on the basis that the evidence did not show exposure to ionizing radiation in service and that there was no evidence that a skin rash had occurred in or was aggravated by service. In regards to the left leg trauma as secondary to a lumbosacral strain, the Board notes that this was originally denied in a January 2004 rating decision on the basis that the evidence did not show the Veteran's back condition was related to service, therefore service connection for the left leg trauma secondary to this condition could not be established. Notice of this decision was sent in February 2004. The Veteran did not appeal this decision and it became final. In regards to the lung condition, service-connection was initially denied by the RO in a January 1999 rating decision with notice sent in February 1999. The basis for the original denial was that there was no evidence of a chronic lung disability in service and that a cold treated in March 1958 had resolved with no evidence of a problem shown on X- rays, and normal lung examination in 1973. The RO reconsidered this decision in May 1999 and determined that additional evidence submitted was not new or material, and the RO confirmed the previous decision. Notice of this was sent in May 1999 and the Veteran did not appeal. Thus the most recent prior final denials are May 1999 for the lung disorder, February 2004 for the left leg disorder and August 2004 for the back and skin disorders. Among the evidence received before May 1999, February 2004 and August 2004 are service treatment records showing that his March 1955 enlistment examination was normal for examination of the chest, lungs, spine and lower extremities. The accompanying report of medical history was negative for any findings significant for any of the claimed issues and he denied having worked with radioactive substances. Likewise, an August 1956 active duty examination was normal and the report of medical history was negative for any findings significant to any of the claimed issues and he again denied having worked with radioactive substances. Service treatment records were significant for complaints of a painful back in July 1956 after he slipped and fell into a door handle aboard ship, striking his back. He was treated with tablets and in August 1956 he felt okay. In March 1958 through April 1958 he was treated for symptoms of a chest cold, with symptoms of coughing and chest pain. In April 1958, the Veteran was said to have a history of asthma and there was no sign of pneumonia, so the impression was bronchial asthma. Findings in April 1958 included wheezing and rhonchi and was believed to be infectious bronchitis with an element of asthmatic bronchitis. By mid-April 1958 his condition had cleared. In June and July 1958 he was seen again for a chest cold with cough, but with chest negative to percussion and auscultation. Chest X-ray was negative in August 1968. A July 1958 separation examination again revealed all normal findings for the spine, chest, lungs and lower extremities. Subsequent physical examinations including an April 1963 reenlistment examination and August 1964 Reserve annual physical again revealed all normal findings for the spine, chest, lungs and lower extremities. Again, the associated reports of medical history were negative for any findings significant to any of the claimed issues, with the exception of his having given a history in the 1964 report of having had pain and pressure in his chest in 1957 on active duty, with no recurrence, as well as a superficial laceration of the left knee which had been sutured. He repeatedly denied having worked with radioactive substances. The service treatment records reflect treatment and/or examinations aboard the U.S.S. Iowa in June 1957 and February 1958, the U.S.S. Woodson in November 1960, the U.S.S. Thuban in August 1963, the U.S.S. Crow in March 1965 and the U.S.S. Haynesworth in November 1965. The records do not reflect the duration of time spent aboard ship. Also previously considered in May 1999, February 2004 and August 2004 was the report of a September 1973 VA examination where the Veteran had complaints that included the low back and gave a history of a fall in 1955 which he related the pain to. He indicated that he had done fairly well until March of 1973 when he had further onset of symptoms. He also reported pain in the right leg and numbness in the left leg, described as going to sleep. Following physical examination which showed some loss of motion and left hip pain, but no list, scoliosis or paraspinous muscle spasm or other significant findings, he was diagnosed with lumbosacral strain, chronic. As per the lungs and skin, no significant findings were reported. An August 1973 chest X-ray was normal, but did show some minimal degenerative changes of the lumbosacral spine. Also previously considered by the VA in May 1999, February 2004 and August 2004 were photocopies of private treatment records from 1954 through 1959 which included complaints of a cough in August 1956 and of an upper respiratory infection in August 1958, but otherwise revealed no significant findings. Progress notes from 1959 did show a diagnosis of pneumonitis, left, with complaints of chest pain and cough, but otherwise yielded no significant evidence. Likewise, copies of private records from the 1960's did not reveal any findings significant to the issues on appeal. Private medical records from the 1970's and VA examinations from October 1974 and February 1978 reflected ongoing back problems, with radiation of pain shown into the right lower extremity. He was diagnosed in the October 1974 VA examination with degenerative disc disease (DDD) of L5-S1. The February 1978 examination did note the Veteran to relate a history of a fall in 1956 while in the Navy and of being in the VA hospital in 1959 with recurrent back pain in 1966. He was assessed with ruptured disc at L5. There was no opinion given by the examiners in either October 1974 or in February 1978 regarding the etiology of the back problems. Also previously considered in May 1999, February 2004 and August 2004 were records obtained in conjunction with a September 1985 Social Security decision, including a December 1982 examination which noted low back pain several years after a fall in 1956 and a July 1983 Social Security examination noting DDD without sciatic nerve involvement. Also received prior to May 1999, February 2004 and August 2004 were private records from the 1990's including an April 1995 note where he was said to be taking Cipro for a lung infection, and was noted to be getting most of his care at a VA hospital. He was said to apparently have some sort of chronic lung disease as per the medication he was taking. He had decreased breath sounds on objective examination but was otherwise normal. The assessment was pleurisy. A July 1996 record revealed treatment for chronic back pain which sounds like spinal stenosis but without pain or numbness going down the leg and was assessed as acute back strain superimposed on chronic spinal stenosis. In September 1996 he was seen for complaints of a rash on both wrists, under both arms and on the groin. He said he washed his hands often in diesel fuel. Physical examination was negative for a rash in the axilla or groin, although there was some dry skin and lichenification. There was a rash noted on both wrists and the assessement was contact dermatitis. In January 1998 he was seen for complaints of painful and swollen joints, including his knees which was assessed as arthralgias, and also was believed to be early seronegative arthritis. This diagnosis of seronegative arthritis was confirmed in a September 1998 record which noted his pain to especially involve his back. Among the records received after May 1999 but prior to February 2004 and August 2004 were additional private records from the 1980's to 2000 showing that in June 1983 he was hospitalized for back pain and gave a history of a back injury in 1973 with back pain ever since. Following examination which showed some decreased sensation in the right foot and decreased right ankle jerk, and review of the computed tomography (CT) and myelogram, the final assessment was degenerative joint disease (DJD) and minimal herniated nucleus pulposus at L4-5 and L5-S1 on the right. Hospital records from July 1999 revealed that he was hospitalized for chronic angina, was diagnosed with coronary artery disease (CAD) and underwent coronary artery bypass graft (CABG). The chest X-rays taken at the time of his July 1999 hospitalization revealed evidence of bibasilar atelectasis status post extubation, with the rest of the findings pertaining to the heart, with cardiomegaly shown. There were no findings showing actual lung disease however. A May 2003 letter from a private doctor stated that the Veteran has had arthritis pain for some time and had a claim due to arthritis pain with spinal stenosis. He claimed trauma to the left leg with surgery as a result of the arthritis pain. He currently treated at the VA medical center Also submitted after the 1999 decision regarding the lungs claim but before both 2004 decisions regarding the skin, back and leg claims were VA records from 1998 to 2003 which were received in December 2003. These records reflect ongoing treatment for low back complaints and DJD. Also lung complaints were documented, including a September 1998 routine followup which revealed ongoing complaints of pleurisy type pain on the back and on deep breathing, as well as pain in the back and legs. There was said to be chest pain that occurs quickly and disappears, which seemed muscular in nature, and he was said to be using inhalers with good results. He was assessed with chronic obstructive pulmonary disease (COPD) along with DJD and other diagnoses which did not pertain to the claims at issue. The diagnosis of COPD was seen again in a September 2001 record which documented complaints of multiple medical problems including low back pain, DJD, muscle spasms and occasional chest pain without shortness of breath. His lungs were clear to auscultation with no rales or wheezes. In January 2003, the Veteran was seen for complaints of cyclobenzeprine (Flexeril) causing itching and rash with little white bumps on the arms and legs. He was listed as being allergic to this medication. In May 2003 he again complained of generalized itching and "twishing" sensation, with the itch treated with cream. There was no rash visible and no lung complaints or significant pulmonary findings. He also continued with back complaints being about the same in May 2003. Among the evidence received after May 1999 and January 2004 addressing the lung disorder and left leg injury claims, but prior to the August 2004 rating decision addressing the back and skin disorder claims, were some private medical records from the 1980's to 1999, which included duplicates of the earlier records. Among the non duplicate records were some records from September and October 1999 where the Veteran was seen for respiratory complaints including wheezing in the chest and feeling unable to get a good breath in September 1999 when he was assessed with allergic rhinitis, and in October 1999 when he continued with "ill feeling" in his chest especially with inspiration and spoke of pleurisy in the past, but review of the record showed no pulmonary disease to consider. He was assessed at the time with perhaps mild pleurisy. The records from November through December 1999 revealed continued joint complaints in the back with an assessment of serum negative rheumatoid arthritis and spinal stenosis. Also among the evidence received after May 1999 and January 2004 addressing the lung disorder and left leg injury claims, but prior to the August 2004 rating decision addressing the back and skin disorder claims, were records of private treatment from 2000 through 2004 which showed ongoing treatment for the claimed disorders. A March 2000 record indicated the Veteran had COPD and treated at the VA every 3 months for it, with a prescription of Theophylline for it. In April 2000, he was seen for transient alterations of consciousness, later determined to be transient ischemic episodes, with review of systems reflecting a history of pneumonia in 1958 and 1959, but with no respiratory difficulties recently. The rest of this record addressed cardiac and other problems unrelated to the issues at hand, but did note him to have complaints of soreness on his left leg where the veins had been stripped for his CABG, and a scar on this leg from this procedure was noted. He also had complaints of knee pain, but with no significant findings. In June 2000 he complained of sore joints, as well as some anterior chest pain, with examination revealing no significant lung findings, and degenerative changes in the extremities, with the left knee having pain on flexing and extension. He is noted to have given a history of surgery on the left knee in 1957. Subsequent records are noted to have included the history of pneumonia in 1958 and 1959, the left knee surgery in 1957 and of spinal stenosis. In July 2000, the Veteran was seen for complaints of soreness in the left anterior chest with findings of a moist area just to the left of the sternum about the 3rd of the 4th rib and enlarged glands under the left arm. This was assessed as an infection of the skin and subcutaneous tissue of the left just. A follow-up later the same month noted on return that he had lesions resembling herpes zoster on the left chest and axillae nodes of the left sternum and was assessed with herpes zoster. This continued to be diagnosed in August 2000. At the end of that month he was noted to have soreness in the left axilla and difficulty abducting his left arm, the same side he had herpes zoster. Physical examination revealed clear lungs and some herpes scars in the axilla. He was assessed with postherpetic neuralgia. In September 2000, he was seen for complaints of knots under his right arm and irritation of both axillae, with examination showing the skin of both axillae were reddened and irritated. The assessment was monilial dermatitis under the arm. By October 2000, his dermatitis had improved, but he had complaints of pain in the right sided lumbar and thoracic area, and pain on taking deep breaths. He was assessed with lumbosacral strain and pleurisy. He continued with back pain through December 2000, and that month he had chest congestion, shortness of breath and back pain. Review of systems included a history of angina, chest tightness but no cough or sputum with lungs clear on physical examination. The assessment which included cardiac assessments of ASHD and congestive heart failure (CHF) included in pertinent part lumbosacral strain. He was noted to use albuteral for wheezing in January 2001. The records from 2001 reflected ongoing treatment for persistent low back pain, as well as pain encompassing the left knee. Also in March 2001 he was diagnosed with gout with elevated uric acid noted as well as multiple joint pain. In April 2001 he was again seen for and assessed with pleuritic pain. These records also noted the Veteran's significant history of cardiovascular pathologies. In August 2002 he was seen for chest pain and muscle spasms affecting his arms and legs. He was assessed with costochronditis and chest pain, in addition to the continued diagnosis of spinal stenosis. In September 2002 he complained of bone aches mostly in the left knee with pain from this knee to the calf, said to be going on for a while. He related a history of leg trauma and surgery and his left knee had some joint line tenderness and crepitus. There was no laxity or effusion of the knee, and X-ray showed decreased joint space. He continued to be assessed with spinal stenosis as well as osteoarthritis, CAD and hypertension. In January 2003, he was followed for gastroesophageal reflux disease with pertinent findings of decreased air sounds and few crackles of the lungs on physical examination, but no diagnosis given for the lungs. He was seen in April 2003 with leg claudication symptoms and was on Tylenol for arthritis. He continued treatment for back pain and for persistent cough and shortness of breath in July 2003. He was noted to have treatment for the lung condition with Keflex and examination revealed wheezes and rhonchi in the lungs. He was assessed with acute bronchitis. Another July 2003 note addressing treatment for bronchitis gave a diagnosis of COPD in addition to acute bronchitis. The records from the rest of 2003 to 2004 reflect continued treatment for osteoarthritis pain and spinal stensois. Among the evidence received after all the prior final decisions from May 1999, January 2004 August 2004 was the Veteran's claim in September 2006, wherein he for the first time raised contentions that his lung disorder was related to asbestos exposure. Pursuant to this claim, service-personnel records were obtained both from his period of active duty between 1956 and 1958 as well as for periods of active duty for training outside of these periods. These records do not clarify the specific duties he engaged in during his active periods of service, but do confirm extended periods of service aboard World War II era ships. See Dictionary of American Naval Fighting Ships, Department of the Navy, Naval Historical Center, 805 Kidder Breese SE, Washington Navy Yard, Washington, DC 20374. This includes records showing that he reported for duty on the U.S.S. Iowa following enlistment and was aboard this ship when it crossed the equator in June 1957 as well as when it crossed the Arctic Regions in February 1958. He is also shown to have had Active Duty for Training where he served aboard the U.S.S. Woodson from September 30, 1960 to November 1960, served aboard the U.S.S. Thuban from August 11, 1963 to August 24, 1963, aboard the U.S.S. Crow from March 14, 1965 to March 26, 1965 and aboard the U.S.S. Haynesworth from November 6, 1965 to November 19, 1965. These identical records were also sent pursuant to his petition to reopen his claim for a skin disorder based on radiation exposure. In addition, in support of his petition to reopen his radiation claim he submitted a Radiation Risk Sheet in February 2007 in which his sole allegation for radiation exposure was his service aboard the U.S.S. Iowa BB- 61. Also received after the May 1999, January 2004 and August 2004 final decisions were copies of medical records from 1965 to 1966 which had previously been considered in these final decisions. The Veteran submitted no additional medical evidence. Based on a review of the evidence, the Board finds that the Veteran has submitted new and material evidence to reopen his claim for a lung disorder. However, he has not submitted any new and material evidence to reopen his previously denied claims for service connection for a back disorder, for a left leg trauma secondary to a back disorder or for a skin disorder due to radiation exposure. As for the lung disorder, the new evidence consists of his allegations that he had been exposed to asbestos during active service, in addition to the service personnel records which detail his extended service aboard World War II era ships. When his lung disorder had previously been denied in May 1999 he had not alleged any asbestos exposure at that time. Thus these new allegations along with the personnel records detailing his service aboard World War II era ships, coupled with recent medical evidence showing a continued diagnosis of a chronic lung disease of COPD are new in that they have not been previously considered, and are so significant that this evidence relates to an unestablished fact necessary to substantiate his lung disorder claim and raises a reasonable possibility of substantiating his claim. Thus the claim for service connection for a lung disorder is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As far as the remaining claims to reopen his previously denied claims for service connection for a back disorder, for a left leg trauma secondary to a back disorder or for a skin disorder due to radiation exposure, the Veteran failed to submit any new and material evidence to reopen these claims, as he did not submit any new medical evidence pertaining to these claims. The only medical evidence submitted after the prior final decisions of January 2004 and August 2004 were duplicates of medical records previously considered. Absent any new medical evidence that pertains to these claims, much less absent any medical evidence that could potentially suggest a link to these claimed disorders to service the Board is unable to reopen any of these claims. In regards to the previously denied radiation claim, the Board notes that the Veteran had submitted a Radiation Risk Activity Sheet which had not been previously considered and which alleges radiation exposure aboard the U.S.S. Iowa. He also submitted new evidence of service personnel records detailing service aboard this ship, as well as other World War II era ships, although there is no evidence in these records to rule in or rule out radiation exposure. Nevertheless, absent any new medical evidence showing any current skin disorder, there is no basis to reopen this claim based on radiation exposure. As to the lay statements by the Veteran, they cannot be accepted as competent evidence to the extent that they purport to establish a medical nexus or the presence of a disability, see Espiritu v. Derwinski, 2 Vet. App. 492, or provide a sufficient basis for reopening the previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1995). In sum the Veteran has failed to submit any new and material evidence to reopen these claims for service connection for a back disorder, for a left leg trauma secondary to a back disorder or for a skin disorder due to radiation exposure. ORDER New and material evidence has been not received to reopen a claim for service connection for a back disorder and the appeal is denied. New and material evidence has been not received to reopen a claim for service connection for a leg disorder and the appeal is denied. New and material evidence has been not received to reopen a claim for service connection for a skin disorder and the appeal is denied. New and material evidence has been received to reopen a claim for service connection for a lung disorder and to this extent, the appeal is granted. REMAND Having reopened the Veteran's claim for service connection for a lung disorder, the Board finds that further development is necessary. The Veteran has alleged that he has a respiratory disorder as a result of inservice asbestos exposure. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In this case, the RO indicated that the Veteran had no inservice asbestos exposure. However, the service personnel records reflect service aboard World War II ships. The RO did not consider such shipboard service in light of the above described provisions from the M21-1, which suggest that asbestos was used in the construction of World War II era ships. Instead, the RO simply determined in the September 2007 statement of the case, that the Veteran's military occupational specialty (MOS), as shown in the service personnel records was of ordinary seaman which was said to have been described by the Navy as having a minimal potential for asbestos exposure, which is the lowest threat level established by the Navy, similar to a musician or pharmacist. A review of the records in the claims file to include the service personnel records did not reveal this statement from the Navy as to the minimal exposure level for asbestos to be of record. VA's failure to allow the Veteran to review this evidence apparently from the Navy as per the threat level of asbestos exposure for his MOS, which it relied upon in its decision, constituted a violation of the fair process principles set forth by the Court decision in Thurber v. Brown 5 Vet. App. 119 (1993). Accordingly, the case is REMANDED for the following action: 1. The AOJ should consider the service personnel records showing active service aboard the U.S.S. Iowa including in June 1957 and February 1958, in addition to his Active Duty for Training where he served aboard the U.S.S. Woodson from September 30, 1960 to November 1960, served aboard the U.S.S. Thuban from August 11, 1963 to August 24, 1963, aboard the U.S.S. Crow from March 14, 1965 to March 26, 1965 and aboard the U.S.S. Haynesworth from November 6, 1965 to November 19, 1965. This service aboard World War II era ships should be considered in conjunction with the provisions of the VBA Manual M21-1, Part VI, pertaining to asbestos exposure, and a determination should be made as to whether it is as likely as not such shipboard service caused asbestos exposure. If further investigation is necessary to make such a determination the AOJ should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the Veteran's claimed in- service asbestos exposure from working aboard the above described ships. Copies of the Veteran's available service treatment records and service personnel records, and his contentions regarding exposure to asbestos should be forwarded to the JSRRC. If indicated by the JSRRC, the AOJ should contact the United States Navy and/or the National Archives and request copies of the ship logs to help answer these questions. 2. If the AOJ continues to determine that asbestos exposure is not shown in this case, it must provide to the Veteran a copy of the determination from the Navy which it based its determination that asbestos exposure had not taken place, wherein the MOS of ordinary seaman was described as having a minimal potential for asbestos exposure, which is the lowest threat level established by the Navy, similar to a musician or pharmacist. It should be clearly indicated in writing that the Veteran was given copies of this determination. Documentation thereof should be associated with the claims folder. 3. After the above development is completed and only if asbestos exposure in service is confirmed, the AOJ should arrange to have the Veteran undergo a pulmonary disorders examination by an appropriate VA specialist. The claims file, along with all additional evidence obtained pursuant to the instructions above, must be made available to and reviewed by the physician. The reviewer should examine the entire claims file and provide opinions on the following questions: (a) Does the Veteran currently suffer from any pulmonary pathology, and if so, what is the correct diagnosis for each such disorder? (b) Is any of the Veteran's current pulmonary pathology etiologically related to exposure to asbestos? (c) If there is current pulmonary pathology caused by exposure to asbestos, is it at least as likely as not that said pathology is etiologically related to exposure to asbestos occurring during the Veteran's periods of active military service, to include Active Duty for Training? The reviewer should discuss the Veteran's lifetime history of exposure to asbestos. (d) Is there is current pulmonary pathology that is not related to exposure to asbestos? If so, is it at least as likely as not that said pathology is etiologically related to any incident of the Veteran's period of active military service. 4. Thereafter, the AOJ should consider all of the evidence of record and re- adjudicate the appellant's claim for service connection for a lung disorder. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may result in adverse consequences. 38 C.F.R. § 3.655 (2008). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs