Citation Nr: 1317023 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 06-33 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence to reopen a service connection claim for asthma has been received. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to October 1983. A service connection claim for asthma was previously denied by the RO in Albuquerque, New Mexico in April 1990. Although notified of the denial in April 1990, the Veteran did not appeal that decision. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO in New York, New York declined to reopen the Veteran's claim for service connection for asthma. In May 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2006. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Winston-Salem, North Carolina, which certified the appeal to the Board. However, currently, the RO in New York, New York, has jurisdiction of the case. The Veteran failed to appear for a Board hearing scheduled for August 2007. In October 2009, pursuant to the Veteran's request, the Board remanded the claim on appeal to schedule the Veteran for a Board hearing at the Winston-Salem RO. An April 2010 letter informed the Veteran that his hearing was scheduled in May 2010. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not since requested rescheduling of the hearing. As such, his Board hearing request has been deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In December 2010, the Board remanded the request to reopen the claim for service connection for asthma to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing further action, the AMC continued to deny the claim (as reflected in a January 2012 supplemental SOC (SSOC), and returned the matter to the Board for further appellate consideration. In April 2012, the claim on appeal was again remanded to the RO, via the AMC, for compliance with due process matters and for additional evidentiary development. After accomplishing further action, the AMC continued to deny the claim. A May 2013 review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the present appeal. The Board notes that the Veteran was previously represented by Disabled American Veterans and North Carolina Division of Veterans Affairs (NCDVA). However, the claims file includes a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative in favor of American Legion, signed and excecuted in 2010. That organization has submitted argument on the Veteran's behalf. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In an April 1990 rating decision, the RO denied service connection for asthma, on the basis that it was a pre-existing condition which was not aggravated in or by service; although notified of the denial in April 2006, the Veteran did not initiate an appeal. 3. Evidence associated with the claims file since the April 1990 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the previously denied claim for service connection at issue, and/or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 1990 decision in which the RO denied service connection for asthma is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. As evidence received since the April 1990 final decision is not new and material, the criteria for reopening the previously denied claim for service connection are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A (f). To provide adequate notice with regard to a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his claim on appeal requiring the presentation of new and material evidence (and the underlying service connection claim), in letters dated in February 2005, December 2010, and April 2012. Therein, he was advised of the provisions relating to the VCAA. Specifically, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. Collectively, the letters also provided the proper former definition of new and material evidence and explained the reasons and bases for the prior denial of the claim. Accordingly, the Board concludes that this satisfied the notice requirement with regard to the application to reopen the previously denied claims. Kent, 20 Vet. App. at 10. The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, this information must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. This specific notification was furnished in this case pursuant to the 2010 and 2012 duty to assist letters. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the claim on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service VA records were obtained. The file contains a formal finding of unavailability of VA records from the El Paso Health Care System and the Veteran was advised of this fact in December 2011. VA has no specific duty to conduct an examination with respect to the claim on appeal requiring the presentation of new and material evidence to reopen it, because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence). Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the Veteran's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). The Board finds that as to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, the Veteran has not specifically identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Background The Veteran seeks to reopen a claim for service connection for asthma. Historically, the RO denied an original service connection claim for asthma in an April 1990 rating action which was not appealed, reasoning that asthma was a pre-existing condition which was not aggravated in or by service. The Veteran was advised of the denial of the claim in April 1990 correspondence; he did not appeal the decision and it became final. The pertinent evidence of record at the time of April 1990 decision consisted of the Veteran's STRs. These include an induction examination report of October 1976 which revealed that clinical evaluation of the lungs and chest was normal; however a childhood history of asthma was noted by the examiner. Complaints of an asthma attack were noted in a May 1978 record. In July 1978, the Veteran was put on a limited profile due to exercise-related bronchospasms. In September 1981, the Veteran was seen due to complaints of dyspnea and wheezing; a history of asthma was noted. An October 1981 entry indicates that the Veteran was seen for symptoms of shortness of breath, and that he had a history of bronchitis. In January 1983, the Veteran was treated for bronchospasms. A separation examination was not conducted. Also on file was a statement from the Veteran indicating that his initial post-service treatment by VA began in March 1990. In January 2005, the Veteran filed to reopen the claim. Evidence added to the file April 1990 rating action includes VA records dated from 1995 forward. In February 1995, the Veteran was seen on a emergent basis due to an asthma attack. A history of asthma since 1980 was noted. Pulmonary function tests were performed in November 1998 which showed a predicted FEV1 of 86 percent. An April 2000 record revealed that the Veteran used Albuterol daily. An April 2001 record notes that the onset of the Veteran's asthma was prior to his discharge from the Army in 1983. Asthma by history was diagnosed. An entry dated in May 2002, indicates that the Veteran was seen for complaints of cough and fatigue. A history of asthma was noted and it was also reported that the Veteran had quit smoking 6 months previously. Bronchitis was diagnosed. The Veteran continued to be treated for bronchitis throughout 2002, and a history of possible occupational exposure to lead was recorded in a September 2002 entry. In March 2006, the Veteran was treated by critical care due to an acute asthma exacerbation, with a noted history of asthma since childhood. In a March 2006 addendum, a history of asthma since age 21 was noted. VA records dated to 2011 show continued treatment for asthma. Analysis Under the legal authority in effect in 1990 and presently, service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so determine, regardless of any previous determination as to the presentation of new and material evidence made by the RO. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). With respect to requests to reopen filed after August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decision makers which, by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim. Such evidence must also raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent, 20 Vet. App. at 1. Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, in an April 1990 rating decision , the RO denied service connection for asthma. As noted, the evidence then of record consisted of the Veteran's STRs and the Veteran's statements. The denial of the Veteran's asthma claim was primarily based on reasoning to the effect that asthma existed prior to service (as reflected on the entrance examination report) and was not aggravated therein. Although notified of the denial later in April 1990, the Veteran did not initiate an appeal. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Hence, the April 1990 denial of service connection for asthma is final (38 U.S.C.A. § 7105 and 38 C.F.R. §§ 3.104, 20.302, 20.1103) and is not subject to revision on the same factual basis (38 U.S.C.A. § 5108 and 38 C.F.R. § 3.156). Accordingly, the pertinent inquiry in this case is whether new and material evidence has been presented since that decision, warranting reopening of the claim. In the present case, evidence added to the record includes VA post-service treatment records reflecting treatment for asthma since at least 1995, and going forward to 2011. In Morton v. Principi, 3 Vet. App. 508 (1992), the United States Court of Appeals for Veterans Claims (Court) held that medical records merely describing the Veteran's current condition are not material to the issue of service connection and are not sufficient to reopen a claim for service connection based upon new and material evidence. In a related case, the Court held that medical evidence which merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of nexus evidence (i.e., a connection to a service-related event or condition), does not constitute new and material evidence. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994). Essentially, while the VA treatment records added to the file since April 1990 are new, they do not address or relate to the matter of evidence of service-related aggravation of pre-existing asthma; and therefore, that evidence is not material. Some of the VA records added to the file since April 1990 document a lay history provided by the Veteran of asthma since childhood; others reflect that the Veteran reported having asthma in service. However, both of these facts are already established by the STRs which were on file at the time of the April 1990 final decision, which show a history of childhood asthma on enlistment examination of 1976, and reflect treatment on several occasions during service for symptoms/conditions including shortness of breath, asthma, and bronchitis. Hence, these lay statements of history provide no new information. In addition to the medical evidence discussed above, the Board has considered the written assertions of the Veteran, as well those advanced by his representative, on his behalf. However, no such evidence provides a basis In this regard, the Board points out that statements simply reemphasizing the position previously considered in the prior final decision are not new or sufficient to reopen the claim. Reid v. Derwinski, 2 Vet. App. 312 (1992). To the extent that any new contentions and arguments have been raised since the April 1990 rating decision, the Board is mindful that the Court has held that presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence under 38 U.S.C. § 5108. See also Untalan v. Nicholson, 20 Vet. App. 467 (2006). As indicated, no additional, pertinent evidence has been presented. In any event, the Board points out that, in this case, the Veteran simply cannot reopen the claim on the basis of lay assertions, alone. As laypersons lack appropriate medical training and expertise, such individuals generally are not competent to render a probative (i.e., persuasive) opinion on a medical matter such as the etiology of a complex medical disability (to include the one here at issue). See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). See also Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Therefore, where, as here, resolution of the appeal turns upon a medical matter that cannot be established by lay evidence, unsupported lay statements, alone, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998). Under these circumstances, the Board concludes that the criteria for reopening the service connection claim for asthma are not met, and the RO's April 1990 denial of the claim remains final. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received to reopen the service connection claim for asthma, the appeal is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs