Citation Nr: 0926337 Decision Date: 07/15/09 Archive Date: 07/22/09 DOCKET NO. 05-41 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for asbestos-related lung disease. 2. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a back disability. 3. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a right leg disability. 4. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for residuals of a head injury. 5. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for an eye disability. 6. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a stomach disability. 7. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for diabetes mellitus. 8. Entitlement to service connection for a right shoulder disability. 9. Entitlement to an increased (compensable) disability rating for service-connected tuberculosis. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1973. This case comes before the Board of Veterans Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Oakland, California (the RO). Procedural history In a March 2005 rating decision, an increased (compensable) rating was denied for service-connected tuberculosis, and service connection was denied for an asbestos-related lung disability and a right shoulder disability. In a July 2005 rating decision, the RO denied the Veteran's claim of entitlement to TDIU. In a November 2006 rating decision, the RO reopened previously-denied claims of entitlement to service connection for a stomach disability, residuals of a back injury, residuals of a right leg injury, residuals of a head injury, an eye disability and diabetes mellitus and denied those claims on a de novo basis. The Veteran perfected an appeal as to all of those denials. In March 2009, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge, a transcript of which has been associated with the claims file. At the hearing, the Veteran submitted additional service treatment records not previously of record. He waived initial agency of original jurisdiction (AOJ) consideration of such evidence. See 38 C.F.R. § 20.1304 (2008). Issue clarification Notwithstanding the fact that the RO adjudicated the claims for service connection for a stomach disability, residuals of a back injury, residuals of a right leg injury, residuals of a head injury, an eye disability, and diabetes mellitus on a de novo basis without determining whether new and material evidence has been submitted to reopen those claims, the Board must first determine whether new and material evidence has been submitted before reopening the claims of entitlement to service connection for a stomach disability, residuals of a back injury, residuals of a right leg injury, residuals of a head injury, an eye disability, and diabetes mellitus, and adjudicating them on the merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for claim, making RO determination in that regard irrelevant.]. See also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. In light of the above, the issues are as stated on the title page. Remanded issues The issues of service connection for a right shoulder disability, an increased (compensable) rating for tuberculosis, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. Issues not on appeal In the November 2006 rating decision, increased ratings for anxiety reaction and hypertension were denied. The Veteran filed a timely Notice of Disagreement (NOD) with those denials. The RO issued a Statement of the Case (SOC) in October 2007. No Substantive Appeal was filed as to those issues. Therefore, those issues are not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a NOD initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The evidence of record does not support a finding that the Veteran was exposed to asbestos in service. 2. In a December 2005 decision, the Board denied the Veteran's claims of entitlement to service connection for a back disability and a right leg disability. 3. The evidence associated with the claims file subsequent to the Board's December 2005 decision does not relate to unestablished facts necessary to substantiate the claims for service connection for back and right leg disabilities. 4. In an unappealed February 2002 rating decision, the RO denied reopening of claims of service connection for residuals of a head injury, an eye disability, and a stomach disability. 5. The evidence received since the February 2002 rating decision does not relate to unestablished facts necessary to substantiate the claims for service connection for residuals of a head injury, an eye disability, and a stomach disability. 7. In an unappealed March 1998 rating decision, the RO denied service connection for diabetes mellitus. 8. The evidence received since the March 1998 rating decision does not relate to unestablished facts necessary to substantiate the claims for service connection for diabetes mellitus. CONCLUSION OF LAW 1. An asbestos-related lung disability was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). 2. The Board's December 2005 decision denying service connection for back and right leg disabilities is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2008). 3. Evidence received since the December 2005 Board decision is not new and material, and the claims for service connection for back and right leg disabilities are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). 4. The February 2002 rating decision denying the reopening of claims for service connection for residuals of a head injury, an eye disability, and a stomach disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2008). 5. Evidence received since the February 2002 rating decision is not new and material, and the claims for service connection for residuals of a head injury, an eye disability, and a stomach disability are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). 6. The March 1998 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2008). 7. Evidence received since the March 1998 rating decision is not new and material, and the claim for service connection for diabetes mellitus is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for asbestos- related lung disease, residuals of a back injury, residuals of a right leg injury, residuals of a head injury, an eye disability, a stomach disability, and diabetes mellitus. As is discussed elsewhere in this decision, the issues of the Veteran's entitlement to service connection for a right shoulder disability, an increased rating for tuberculosis, and TDIU are being remanded for further development. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Assistance Claims Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. However, the VCAA appears to have left intact the requirement that an appellant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of these issues has proceeded in accordance with the provisions of the law and regulations The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review Once all the evidence has been brought together, the Board has the responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance of the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veteran Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. [This standard does not apply to claim to reopen until such claims have been reopened. The standard used in reopening claims will be discussed where appropriate below.] Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The holding of the Court in Quartuccio specifically applies to cases in which the submission of new and material evidence is involved. Letters were sent to the Veteran in November 2004, February 2005, June 2005, September 2006, October 2007, and May 2008 which were specifically intended to address the requirements of the VCAA. The November 2004 letter, the two 2005 letters, and the September 2006 letter informed the Veteran of the evidence necessary to establish service connection. Moreover, the June 2005 and September 2006 VCAA letters informed the Veteran of the need to submit new and material evidence to reopen the previously-denied claims. This advisement satisfied the requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006), which held that claimants must be specifically informed of what is required to reopen their previously-denied claims. Accordingly, the Veteran was informed of the information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As for the evidence to be provided by the Veteran, in the various VCAA letters the RO asked the Veteran to identify and send relevant medical evidence. The RO provided the Veteran with VA Form(s) 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for each private or other non-VA doctor and medical care facility that treated him for his claimed disabilities. Moreover, in the various VCAA letters, the Veteran was informed that VA would provide a medical examination or obtain a medical opinion if it is necessary to make a decision on his claims [A VA examination involving the respiratory system was conducted in October 2006]. In the various VCAA letters, the Veteran was advised that VA was responsible for getting relevant records from any Federal agency, to include records from the military, VA medical centers (including private facilities where VA authorized treatment), and the Social Security Administration. The Veteran was also informed that VA make reasonable efforts on his behalf to get relevant records not held by a Federal agency, including records from state and local governments, private doctors and hospitals, and current or former employers. The various letters told the Veteran that "[i]f you have any evidence in your possession that pertains to your claim, please send it to us" See, e.g., the September 15, 2006 VCAA letter, page 2. This complies with the "give us everything you've got" requirement contained in 38 C.F.R. § 3.159 (b) in that the RO informed the Veteran that he could submit or identify evidence other than what was specifically requested by the RO. [The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353- 56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim, 38 C.F.R. § 3.159(b)(1).] In short, the record indicates that the Veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, with respect to these claims, element (1), veteran status, is not at issue. The various claims were denied based on element (2), existence of a disability, and/or element (3), relationship of such disability to the veteran's service. As explained above, the Veteran has received proper VCAA notice as to his obligations, and those of VA, with respect to these crucial elements regarding these claims. The RO specifically addressed elements (4) and (5) in the September 2006 VCAA letter, page 7, the October 2007 VCAA letter, and the May 2008 VCAA letter. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). As alluded to above, under the VCAA VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board adds that the Veteran herself bears the responsibility for substantiating his claims. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. In this case, the evidence of record includes the Veteran's service medical records, VA and private treatment records, Social Security Administration records, and a report of a VA examination, which will be discussed below. A VA examination regarding the respiratory system was obtained in October 2006. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is more than adequate. The report of this examination reflects that the examiner recorded the Veteran's current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the much of the remainder of the evidence of record. The Veteran has not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of service connection for an asbestos-related lung disability has been met. 38 C.F.R. § 3.159(c) (4). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of these claims has been consistent with the provisions of the VCAA. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2008). He testified at a hearing at the RO before the undersigned Veterans Law Judge. Accordingly, the Board will proceed to a decision on the merits as to seven of the issues on appeal. 1. Entitlement to service connection for asbestos-related lung disease. Pertinent law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a)(2008). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). It is now well settled that in order to be considered for service connection, a claimant must first have a disability. See, e.g., Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) [service connection may not be granted unless a current disability exists]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. However, the Court held in McClain v. Nicholson, 21 Vet. App. 319 (2007), that so long as the veteran had a diagnosed disability during the pendency of the claim, service connection criteria requiring a current disability was satisfied. Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21- 1MR), Part IV, Subpart ii, Chapter 2, Section C. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The applicable section of M21-1MR 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 id. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to the current version contained in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C) of 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 4-2000 (Apr. 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Analysis At the outset of its analysis, the board observes that the Veteran is already service connected for a pulmonary disability, tuberculosis. He now seeks entitlement to service connection for another pulmonary disability, asbestos-related lung disease. Thus, the essential matter for consideration os not whether the Veteran has a pulmonary disease, but whether he has two pulmonary diseases. As to the first Hickson element, current disability, namely whether the Veteran currently has asbestos-related lung disease, this is a medical question which the Board cannot answer itself. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. There is conflicting medical evidence as to this crucial point. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has carefully evaluated the medical evidence, and for reasons stated immediately below finds that the evidence against the claim (i.e., the medical evidence showing no current diagnosis of asbestos-related lung disease) outweighs the evidence in favor. A report of a July 1997 private chest x-rays shows an impression of bilateral areas of pleural thickening with plaque formation consistent with asbestos-related pleural disease. This is the only medical evidence which supports the Veteran's contention that he has asbestos-related pulmonary disease. A report of October 1997 private computed tomography (CT) scan of the chest shows an overall impression of no detectable asbestos-related pleural or lung parenchymal disease. Similarly, reports of February 2005, August 1997, and July 1973 VA examinations specifically indicate that the Veteran does not currently have pleural effusion and that any pleural effusion identified in the past would be a residual of the service-connected tuberculosis. [The July 1973 VA examiner also noted that the pleural effusion had cleared.] These examination reports do not reflect a diagnosis of asbestos-related lung disease. Other VA examinations in June 1991, November 2001, and October 2006 reveal no diagnosis of asbestos-related lung disease. The November 2001 VA examiner specifically noted that there was no evidence of any pleural scarring or parenchymal fibrosis. Moreover, numerous VA chest x-rays taken from July 1973 to April 2007 were normal, with no finding of asbestos-related pleural disease. The Board places great weight of the reports of the VA examinations because the examiners recorded the Veteran's current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses consistent with much of the other medical evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."]. In that regard, these VA examination reports and VA chest x-rays along with the report of the CT scan are consistent with the five volumes of treatment records showing no diagnosis of asbestos-related lung disease except for the above-mentioned report of July 1997 private chest x-rays. As such, the Board finds the VA examination reports, VA chest x-rays, and the report of the CT scan to be highly probative. The July 1997 private chest x-rays is completely at odds with the remainder of the medical tests, examination reports, and treatment records of record. Based on the entire record, the Board finds that the July 1997 private chest x-ray is an outlier and assigns it virtually no weight of probative value. The Veteran is contending that he has an asbestos-related lung disease. See, e.g., VA Form 21-4138 (statement in support of claim) received in October 2004. It is now well established that as laypersons without medical training they are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) [lay persons without medical training are not competent to comment on medical matters such as diagnosis and etiology]; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Any such statements offered in support of the Veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The law is clear that in order to be considered for service connection, a claimant must first have a disability. See the Court cases cited by the Board above, as well as the decision of the Federal Circuit in Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) and Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In the absence of evidence of a diagnosed left elbow disability, Hickson element (1) is not met and service connection may not be granted for this disorder on this basis alone. The lack of a current disability is dispositive of this appeal. However, for the sake of completeness, the Board will briefly address the remaining two Hickson elements. With respect to Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the Veteran's service treatment records do not show a diagnosis of asbestos-related lung disease. On the March 1973 separation examination, the lungs and chest were normal. Similarly, his service treatment records do not indicate that the pleural effusion noted in service was due to asbestos exposure. Thus, Hickson element (2) is not satisfied as to disease. Concerning in-service injury, the Veteran contends that the he was exposed to asbestos in service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. In this case, the Veteran's DD Form 214 indicates that his primary military occupational specialty (MOS) was a missile crewmember. A missile crewmember is not one of the occupations noted to have involved exposure to asbestos. Furthermore, the Veteran's service treatment records do not refer to any asbestos exposure. The Veteran has presented no evidence, other than his own statements, that he was exposed to asbestos. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. All references to an in-service asbestos exposure emanates from the Veteran himself. The Board places far greater weight of probative value on the utterly negative service treatment records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact]. In short, the contention that the Veteran was exposed to asbestos in service amounts to mere speculation on his part and is not substantiated by any objective evidence in the file. The Board accordingly finds that the Veteran was not exposed to asbestos in service. Hickson element (2) is not satisfied as to injury. Hickson element (2) has therefore not been met, and the claim fails on this basis also. Finally, with respect to Hickson element (3), medical nexus, in the absence of both a diagnosis of current disability deemed to constitute asbestos-related lung disease, and an in-service injury or disease, there cannot be a medical nexus, and there is none of record with regard to this claim. The report of the July 1997 chest X-rays, which is the only evidence indicating asbestos exposure, pertinently does not relate such to in-service asbestos exposure. In summary, for reasons and bases expressed above, the Board concludes that service connection may not be granted for the Veteran's claimed asbestos-related lung disease, in view of a preponderance of medical evidence indicating that such disability does not exist. The benefits sought on appeal as to that claim are accordingly denied. 2. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection a back disability. 3. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a right leg disability. Because these two issues involve the application of identical law to similar facts, for the sake of economy the Board will address them together. Relevant law and regulations The law and regulations generally pertaining to service connection have been set out above and will not be repeated. Finality/new and material evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised on August 29, 2001, to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present a reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2008)]. The change in the law pertains only to claims filed on or after August 29, 2001. Because the Veteran's current claims to reopen were initiated in March 2006, his claims will be adjudicated by applying the revised section 3.156, which is set out in the paragraph immediately following. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a) (2008). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Initial comment 38 C.F.R. § 3.156(c) (2008) provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: service records that are related to a claimed in- service event, injury, or disease. The Veteran has recently submitted additional service treatment records not previously of record. However, these service treatment records do not pertain to a back or right leg injury. Specifically, these treatment records pertain to a hospitalization for pleural effusion. Therefore, these service treatment records are not relevant to whether the Veteran had an in-service back or right leg injury. Thus, 38 C.F.R. § 3.156(c) (2008) is not applicable to these claims, and the claims will be reviewed on a new and material basis. Factual background The "old" evidence The evidence of record at the time of the Board decision in December 2005 included the Veteran's service treatment records, VA and private treatment records, Social Security Administration records, and a report of an October 2004 VA examination. The Veteran's service treatment records reflect that he sprained his right ankle in July 1969 and injured his low back in January 1970. The report of the October 2004 VA examination reflects a diagnosis of severe degenerative disc disease, L5-S1. The examiner opined that it was more likely than not that the degenerative disc disease is unrelated to in-service injuries. The examiner opined that there was no objective evidence of organic pathology in the Veteran's right knee, leg, or ankle. The examiner also opined that it was more likely than not that the symptoms in the right lower extremity were the result of radicular pain from the low back, specifically pointing to the existence of a ruptured disc in 1993 [many years after service]. The December 2005 decision In its December 2005 decision, the Board determined that the evidence of record did not demonstrate medical nexus between the Veteran's military service and his current lumbar spine disability, Hickson element (3), and that the evidence of record did not demonstrate medical evidence of a current right leg disability, Hickson element (1), and medical evidence of a nexus between the Veteran's military service and any current right leg disability. The Board's decision is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2008). The Veteran filed to reopen his claims in March 2006. The RO declined to reopen the claims, and the Veteran appealed. Additional evidence which has been received since December 2005 will be discussed below. Analysis The Veteran's claim of entitlement to service connection for a back disability was denied by the Board in December 2005 due to a lack of competent medical nexus evidence between the Veteran's service and his current lumbar spine disability, Hickson element (3). The evidence then of record demonstrated the existence of a current lumbar spine disability, element (1), and an in-service injury, element (2). The Veteran's claim of entitlement to service connection for a right leg disability was denied by the Board in December 2005 due to a lack of competent medical evidence of a current right leg disability, Hickson element (1), and lack of competent medical nexus evidence between the Veteran's service and any current right leg disability, Hickson element (3). The evidence then of record demonstrated the existence of an in-service right leg injury, element (2). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). Evidence added to the record since the Board's denial in December 2005 includes additional service treatment records, duplicate copies of 1993 VA treatment records, VA treatment records from 2005 to 2007, and the Veteran's contentions. Additional service treatment records which have been added to the record manifestly do not show that the Veteran has a current right leg disability or that any current right leg or back disability is related to his active service. The recently added service treatment reports, although new, are not material. Duplicate copies of 1993 VA treatment records showing a diagnostic impression of back pain are not new; that evidence was previously considered by the Board. The VA treatment records from 2005 to 2007 show that the Veteran has a history of a herniated disk. These treatment records are new in the sense that these particular records had not been previously associated with the Veteran's claims file. However, these reports at best merely continue to document the current presence of a lumbar spine disability. The existence of a lumbar spine disability was known at the time of the Board's decision in December 2005; that matter was not in dispute. The medical evidence received since November 2007 merely reflects that a lumbar spine disability arguably still exists. Such evidence, although new, is not material, since it does not establish in-service incurrence or aggravation of such disability. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. The recent VA treatment records also document peripheral edema of the lower extremities. Arguably, this is new and material as to the existence of a current disability. In order for the claim to be reopened there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans, supra. In that regard, the VA treatment records do not show that the peripheral edema of the right lower extremity is related to the in-service right leg injury. In fact, the VA treatment records reflect that it is probable that the peripheral edema is due to medication. Thus, the VA treatment records are evidence against the claim. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to the appellant is not new and material]. With regard to the Veteran's various statements and his testimony about his lumbar spine and right leg disabilities, these in essence duplicate previous contentions, and accordingly they are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, lay statements of the Veteran cannot be considered material as to the medical question presented, whether service caused or aggravated the lumbar spine and right leg disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2008) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. See also Moray v. Brown, 5 Vet. App. 211 (1993) [lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection]; Routen v. Brown, 10 Vet. App. 183, 186 (1997) ["[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108."]. In short, the Board concludes that new and material evidence has not been received to reopen either claim. The evidence does not relate to an unestablished fact necessary to substantiate the claims, medical nexus. The claims are not reopened, and the benefits sought on appeal remain denied. (CONTINUED ON NEXT PAGE) 4. Whether new and material evidence has been received which is sufficient to reopen a previously-denied claim of entitlement to service connection for residuals of a head injury. Initial comment The recently submitted service treatment records do not pertain to a head injury. Therefore, these service treatment records are not relevant to whether the Veteran had an in- service head injury. Thus, 38 C.F.R. § 3.156(c) (2008) is not applicable to this claim. Factual background The "old" evidence The evidence of record at the time of the final RO decision in February 2002 included the Veteran's service treatment records, VA and private treatment records, and reports of VA examinations. The Veteran's service treatment records show that in March 1972 the Veteran suffered a superficial laceration to the left temporal area in a motor vehicle accident. A May 1972 skull series was considered to be normal. In July 1972, the Veteran again complained of headaches; the impression was probable atypical post-traumatic-type migraine headaches. In connection with the Veteran's March 1973 separation examination, a headache disorder was not diagnosed. Post-service VA and private treatment records and reports of VA examinations showed no residuals from the in-service head injury. The February 2002 decision In the February 2002 rating decision, the RO denied service connection for residuals of a head injury on the basis of no current disability [Hickson element (1)], and, by implication, no medical nexus [Hickson element (3)]. The Veteran did not appeal that decision. That decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The Veteran filed to reopen his claim in March 2006. The RO declined to reopen the claim, and the Veteran appealed. Additional evidence which has been received since February 2002 will be discussed below. Analysis The Veteran's claim to reopen entitlement to service connection for residuals of a head injury was denied by the RO in February 2002 due to a lack of competent medical evidence of a current residuals of the in-service head injury, Hickson element (1); and lack of competent medical nexus evidence between the Veteran's service and any current disability, Hickson element (3). The evidence then of record demonstrated the existence of an in-service head injury, Hickson element (2). Evidence added to the record since the RO's denial in February 2002 includes additional service treatment records, VA treatment records from 2002 to 2007, reports of VA examinations from 2004 to 2006, and the Veteran's contentions. The additional service treatment records which have been added to the record do not pertain to the in-service head injury, the existence of which was never in dispute in any event. The recently added service treatment reports, although new, are not material, because they do not relate to an unestablished fact necessary to substantiate the claim and do not present a reasonable possibility of substantiating the claim. The VA treatment records from 2002 to 2007 and reports of VA examinations from 2004 to 2006 do not show that the Veteran has any current residuals of an in-service head injury. These treatment records and reports of VA examinations are new in the sense that these particular records and examination reports had not been previously associated with the Veteran's claims file, but are not material. Moreover, with regard to the Veteran's various statements and his testimony about the etiology of his head injury, these essentially replicate previous contentions and therefore are not new. See Reid, supra. Moreover, the lay statements of the Veteran cannot be considered material as to the medical questions presented, whether the Veteran has a current disability. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1). See also Moray and Routen, both supra. In short, the Board concludes that new and material evidence has not been received to reopen the claim. The evidence does not relate to unestablished facts necessary to substantiate the claim, current disability and medical nexus. The claim is not reopened, and the benefit sought on appeal remains denied. 5. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for an eye disability. Relevant law and regulations Congenital or developmental disabilities It is now well settled that in order to be considered for service connection, a claimant must first have a disability. See, e.g., Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. Congenital or developmental defects, including refractive error of the eye, are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2006). Defects of form or structure of the eye of a congenital or developmental origin, such as astigmatism and presbyopia, will not, in themselves, be regarded as disabilities and may not be service connected on the basis of incurrence or natural progress during service. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B. Initial comment The recently submitted service treatment records do not pertain to an eye injury or eye disability. Thus, 38 C.F.R. § 3.156(c) (2008) is not applicable to this claim. Factual background The "old" evidence The evidence of record at the time of the final RO decision in February 2002 included the Veteran's service treatment records, VA and private treatment records, and reports of VA examinations. The Veteran's service treatment records show that in July 1971 the Veteran complained of episodes of throbbing pain in the left eye associated with blurring of vision. The diagnostic impression was sinusitis. In February 1972, the Veteran's vision was 20/20 bilaterally. His color vision and visual fields were normal. In July 1972, the Veteran complained of flashes of lights and blind spots in the left eye with nausea associated with headaches; the impressions were probable atypical post-traumatic-type migraine headaches. Later in July 1972, the Veteran had yellowed eyes. The impression after a physical examination was a normal examination. On the March 1973 separation examination, the Veteran's distant vision was 20/25 bilaterally; an eye disability was not diagnosed. Post-service VA and private treatment records and reports of VA examinations show that in September 1988 there was a provisional diagnosis of decreased visual acuity. The February 2002 decision In the February 2002 rating decision, the RO in essence denied the claim of entitlement to service connection for an eye disability on the bases of no current disability, no eye disability in service, and no medical nexus [all three Hickson elements]. The Veteran did not appeal that decision, which is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The Veteran filed to reopen his claim in March 2006. The RO declined to reopen the claim, and the Veteran appealed. Additional evidence which has been received since February 2002 will be discussed below. Analysis The Veteran's claim to reopen entitlement to service connection for an eye disability was denied by the RO in February 2002 due to a lack of competent medical evidence of current disability, a lack of evidence of an eye disability or eye injury in service, and lack of competent medical nexus evidence between the Veteran's service and any current disability, all three Hickson elements. Evidence added to the record since the RO's denial in February 2002 includes additional service treatment records, duplicate service treatment records, VA treatment records from 2002 to 2007, and the Veteran's contentions. VA treatment records show that in February 2006 the assessments included simple astigmatism of the right eye, emmetropia of the left eye, presbyopia, and glaucoma suspect. The VA treatment record showing an assessment of suspected glaucoma is new and material, in that there is now of record evidence indicating the possible existence of an eye disability which is not congenital or developmental. As discussed above, in order for the claim to be reopened there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans, supra. In that regard, the VA treatment records do not show that any current eye disability is related to the Veteran's military service. Nor is there any new and material evidence as to in-service incurrence of an eye disability. The additional service treatment records which have been added to the record do not pertain to eye treatment or a vision evaluation. These reports do not refer to an eye disability. The recently added service treatment reports, although new, are not material. Duplicate service treatment records regarding vision testing are not new because that evidence was previously considered by the RO. With regard to the Veteran's various statements and his testimony about the etiology of his eye disability, such are essentially duplicative of previous contentions made by the Veteran. In particular, the Veteran's continuing reporting of an in-service eye injury is essentially a reiteration of similar contentions raised previously. See Reid, supra. The lay statements of the Veteran cannot be considered material as to the medical question presented, whether any current eye disability is related to service. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1). See also Moray and Routen, both supra. In short, the Board concludes that new and material evidence has not been received to reopen the claim. The evidence does not relate to unestablished facts necessary to substantiate the claim - in-service incurrence or aggravation, and medical nexus. The claim is not reopened, and the benefit sought on appeal remains denied. 6. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a stomach disability. Initial comment The recently submitted service treatment records do not pertain to gastrointestinal symptomatology. Thus, 38 C.F.R. § 3.156(c) (2008) is not applicable to this claim. Factual background The "old" evidence The evidence of record at the time of the final RO decision in February 2002 encompassed the Veteran's service treatment records, VA and private medical treatment records, and reports of VA examinations. The Veteran's service treatment records show that in November 1972 he complained of nausea and an upset stomach; the impression was rule out peptic ulcer disease (doubt). A November 1972 upper gastrointestinal series was normal. On the March 1973 separation examination, the abdomen and viscera were normal. VA and private treatment records and reports of VA examinations showed no diagnosis of a chronic gastrointestinal disability. A private treatment record in August 1977 referred to sudden periumbilical pain; no diagnosis was made, and there was no further mention of this. VA treatment records did show that in March 1998 there was a reference to a lower gastrointestinal bleed. No specific diagnosis was made, and there was no further mention of such problem. The February 2002 decision In the February 2002 rating decision, the RO in essence denied the reopening of the claim of service connection for an stomach disability on the bases of no current disability, no gastrointestinal disability in service, and no medical nexus [all three Hickson elements]. The Veteran did not appeal that decision. That decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The Veteran filed to reopen his claim in June 2005. The RO declined to reopen the claim, and the Veteran appealed. Additional evidence which has been received since February 2002 will be discussed below. Analysis The Veteran's claim to reopen entitlement to service connection for an eye disability was denied by the RO in February 2002 due to a lack of competent medical evidence of current disability, a lack of evidence of a chronic gastrointestinal disability in service, and lack of competent medical nexus evidence between the Veteran's service and any current disability, all three Hickson elements. Evidence added to the record since the RO's denial in February 2002 includes additional service treatment records, a duplicate private treatment record, VA treatment records from 2002 to 2007, and the Veteran's contentions. VA treatment records show that in April 2007 the assessments included gastroesophageal reflux disease (GERD). The VA treatment record showing a current diagnosis of GERD is new and material as to the existence of a current gastrointestinal disability. The VA treatment records do not show that the Veteran's GERD is related to his military service. There has been added to the record no competent evidence as to the element of medical nexus. As has been discussed above, the Veteran's various statements and his testimony about the etiology of his gastrointestinal disability are reiterative of previous statements and are not competent. See Reid, Espiritu and Moray and Routen, all supra. With respect to the element on in-service disease or injury, the additional service treatment records which have been added to the record do not refer to a gastrointestinal disability. Also, the Veteran's continuing reporting of an in-service gastrointestinal symptomatology is essentially a reiteration of similar contentions raised previously. See Reid, supra. In short, the Board concludes that new and material evidence has not been received to reopen the claim. The evidence does not relate to unestablished facts necessary to substantiate the claim: in-service incurrence or aggravation and medical nexus. The claim is not reopened, and the benefit sought on appeal remains denied. (CONTINUED ON NEXT PAGE) 7. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for diabetes mellitus. Pertinent law and regulations Service connection - diabetes mellitus For certain chronic disorders, to include diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). Secondary service connection Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2008); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Initial comment The recently submitted service treatment records do not pertain to diabetes mellitus. Thus, 38 C.F.R. § 3.156(c) (2008) is not applicable to this claim. Factual background The "old" evidence The evidence of record at the time of the final RO decision in March 1998 included the Veteran's service treatment records and VA and private treatment records. The Veteran's service treatment records show no diagnosis of diabetes mellitus. Post-service VA and private treatment records show a diagnosis of diabetes mellitus, which evidently began a number of years after service. At the time of the March 1998 RO decision denting service connection for diabetes mellitus, service connection was in effect for hypertension. The March 1998 decision In the March 1998 rating decision, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus because there was no medical evidence of diabetes mellitus in service, no medical nexus evidence of a relationship between diabetes mellitus and service, and no medical nexus evidence of a relationship between diabetes mellitus and the service-connected hypertension [in essence, Hickson elements (2) and (3), and Wallin element (3)]. The Veteran filed a timely Notice of Disagreement (NOD) with that decision. In September 1998, the RO issued a Statement of the Case (SOC). However, the Veteran did not file a Substantive Appeal. Therefore, that decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.301, 20.1103. The Veteran filed to reopen his claim in March 2006. The RO declined to reopen the claim, and the Veteran appealed. Additional evidence which has been received since March 1998 will be discussed below. Analysis The Veteran's claim of entitlement to service connection for diabetes mellitus was denied by the RO in March 1998. The evidence then of record demonstrated the existence of diabetes mellitus, Hickson and Wallin element (1), and a service-connected disability (hypertension), Wallin element (2). The Veteran's claim was denied due to a lack of competent medical evidence as to the existence of diabetes mellitus in service, Hickson element (2); competent medical evidence of a nexus between the Veteran's military service and his diabetes mellitus, Hickson element (3); and competent medical evidence of a nexus between the Veteran's diabetes mellitus and his service-connected hypertension, Wallin element (3). Evidence added to the record since the RO's denial in March 1998 includes additional service treatment records, VA treatment records from 2002 to 2007, and the Veteran's contentions. The additional service treatment records, described above, which have been added to the record do not show that the Veteran had diabetes mellitus in service or that his diabetes mellitus is otherwise related to his active service. The recently added service treatment reports, although new, are not material. The VA treatment records from 2002 to 2007 show that the Veteran still has diabetes mellitus. These treatment records are new in the sense that these particular records had not been previously associated with the Veteran's claims file but are not material. These reports merely continue to document the current presence of diabetes mellitus. The existence of diabetes mellitus was known at the time of the RO's decision in March 1998; that matter was not in dispute. Such evidence, although new, is not material, since it does not establish in-service incurrence or aggravation of such disability, or a relationship between diabetes mellitus and the service-connected hypertension . See Cornele and Mintz, both supra. With regard to the Veteran's various statements and his testimony about the etiology of his diabetes mellitus, lay statements of the Veteran cannot be considered material as to the medical questions presented, whether service caused or aggravated diabetes mellitus and whether his service- connected hypertension caused or aggravated his diabetes mellitus. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1). See also Moray and Routen, both supra. In short, the Board concludes that new and material evidence has not been received to reopen the claim. The evidence does not relate to unestablished facts necessary to substantiate the claim, in-service incurrence or aggravation, and medical nexus. The claim is not reopened, and the benefit sought on appeal remains denied. ORDER Service connection for asbestos-related lung disability is denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for residuals of a back injury is not reopened. The benefit sought on appeal remains denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for residuals of a right leg injury is not reopened. The benefit sought on appeal remains denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for residuals of a head injury is not reopened. The benefit sought on appeal remains denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for an eye disability is not reopened. The benefit sought on appeal remains denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for stomach disability is not reopened. The benefit sought on appeal remains denied. New and material evidence has not been received, and the Veteran's claim of entitlement to service connection for diabetes mellitus is not reopened. The benefit sought on appeal remains denied. REMAND 8. Entitlement to service connection for a right shoulder disability. The Veteran's service medical records reflect that a foreign body hit his right shoulder in September 1970. An October 1993 report of a magnetic resonating imaging (MRI) scan of the right shoulder shows an impingement of the right rotator cuff. A November 1994 statement from a private doctor reflects a diagnosis of right rotator cuff tear. It is unclear whether the Veteran still has a right shoulder disability. The Court has held that, in situations in which there is competent evidence of a current disability and evidence indicating an association between the claimant's disability and his active service, under 38 U.S.C.A. § 5103A VA is to obtain a medical opinion as to whether there is a nexus between that disability and his active service. See Charles v. Principi, 16 Vet. App. 370 (2002). Under the circumstances here presented, the Board finds that a VA examination is necessary to determine the nature of any current right shoulder disability and its etiology. 9. Entitlement to an increased (compensable) disability rating for service-connected tuberculosis. Inactive tuberculosis is rated based on pulmonary function testing. See 38 C.F.R. § 4.97 (2008). A report of September 2006 VA pulmonary function tests shows a DLCO (SB) (Diffusion Capacity of the lung for Carbon Monoxide by the Single Breath Method) test of 80 percent of predicted. If related to the Veteran's service-connected tuberculosis, this may warrant the assignment of a compensable disability rating. Id. The medical evidence, however, does not indicate whether this test result is a residual of the Veteran's tuberculosis. A VA medical opinion on this matter is necessary. 10. Entitlement to TDIU. The issue of entitlement to TDIU is inextricably intertwined with the claims of entitlement to service connection for a right shoulder disability and entitlement to an increased disability rating for the service-connected tuberculosis. In other words, if either of those claims are granted, that may impact the TDIU claim. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) [where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together]; see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Action on the Veteran's TDIU claim is therefore deferred. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should schedule the Veteran for an examination to determine the existence and etiology of a current right shoulder disability The examiner should provide an opinion as to whether it is as least as likely as not that any currently identified right shoulder disability is related to the Veteran's military service. A report of the examination should be associated with the Veteran's VA claims folder. 2. VBA must arrange for a physician to review the medical records in order to determine the etiology of the Veteran's shortness of breath. The reviewer should provide an opinion as to whether it is as least as likely as not that the Veteran's shortness of breath as documented by the abnormal DLCO (SB) test on October 2006 pulmonary function tests is a residual of his service-connected tuberculosis. If physical examination and/or diagnostic testing is deemed to be necessary by the reviewing physician, such should be accomplished. A report of the medical opinion should be associated with the Veteran's VA claims folder. 3. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems to be necessary, VBA should again review the record and readjudicate the Veteran's claims. If the decision remains unfavorable to the Veteran, in whole or in part, a supplemental statement of the case (SSOC) should be prepared. The Veteran should be provided with the SSOC and an appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs