Citation Nr: 1325036 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-13 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD) with asthma, claimed as related to Agent Orange Exposure, diesel fuel, and asbestos. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from April 1965 to January 1967. This matter comes before the Board of Veterans' Appeals from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. By way of history, in a December 2006 rating decision the RO denied the Veteran's claims of entitlement to service connection for COPD. The Veteran filed a notice of disagreement (NOD) in December 2007 and a Statement of the Case (SOC) was issued in August 2008. In December 2008 the Veteran filed a VA-9 Substantive Appeal; however, he was notified by the RO in December 2009 and February 2009 letters that his VA-9 Substantive Appeal was not timely as it was received 60 days after the expiration of the appeal period and therefore, the December 2006 rating decision was final. 38 C.F.R. § 20.302(b). The Board notes that in December 2008 the Veteran stated that his VA-9 Substantive Appeal was not timely because he was ill. The Board notes that under 38 C.F.R. § 20.303 an extension of the 60 day period for filing a Substantive Appeal can be granted for good cause; however, a request must be made in writing and prior to the expiration of the time limit for filing the Substantive Appeal. In this case, the Veteran did not file a request for an extension prior to the expiration of the appeal period; therefore, the Board finds that December 2006 rating decision is final. 38 C.F.R. § 20.302(b). As discussed above, the December 2006 rating decision is final. In August 2009 the Veteran filed a petition reopen his claim for entitlement to service connection for COPD. In the October 2009 rating decision the RO denied service connection for COPD. Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first address whether new and material evidence has been presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In his April 2010 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge. In a June 2011 statement, the Veteran, through his representative, submitted written notification indicating that he no longer wished to appear at a hearing before the Board. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In June 2013 the Veteran submitted additional private medical records with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. By way of a December 2006 rating decision, the RO denied the Veteran's claim for service connection for COPD, finding that there was no evidence of COPD within one year of service or a nexus relationship between the Veteran's military service and his COPD with asthma. The Veteran did not timely appeal that decision. 2. The additional evidence received since the December 2006 RO decision is cumulative and redundant of evidence previously of record; it does not relate previously unestablished facts necessary to substantiate the claim, and it does not raise a reasonable possibility of substantiating the claim of service connection for COPD with asthma. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim for service connection for COPD with asthma. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran through a correspondence in August 2009. This letter detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In addition, December 2008, February 2009, and August 2009 letters notified the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require 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, the RO informed the Veteran of the disability rating and effective dates in the August 2009 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issues decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was not afforded a VA examination for his claim for service connection for COPD with asthma since his petition to reopen is herein below denied and the VCAA duty to assist is not triggered until his claim has been reopened. 38 U.S.C.A. § 5103A. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim on appeal. 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). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim on appeal. II. Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision. 38 C.F.R. § 20.1104. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 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). 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). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. In determining if new and material evidence has been received, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium); Justus v. Principi, 3 Vet. App. 510 (1992). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). Here, the RO denied service connection for COPD with asthma in December 2006, finding that COPD with asthma was not shown during service or for years thereafter, and that his COPD with asthma was not related to any aspect of the Veteran's period of service. The RO specifically stated that COPD with asthma was not a diagnosis that fell under the category of those listed as presumptive diseases related to Agent Orange exposure; the list of conditions presumed to be related to Agent Orange exposure is codified at 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, and is based on an analysis of scientific evidence. The presumption of service connection only exists for those diseases listed in 38 C.F.R. §§ 3.307 and 3.309(e). It was noted that the Agent Orange Act of 1991 directed the Secretary of the Department of Veterans Affairs to seek to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). The Secretary of Veterans Affairs has determined that there is no presumptive positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). Thus, since COPD and asthma are not listed in 38 C.F.R. § 3.309(e) the presumption of Agent Orange exposure did not apply. The RO also stated that there was no evidence that the Veteran was diagnosed with any disease associated with asbestos exposure. Service connection was additionally denied because there was no evidence that the Veteran was treated, complained of, or diagnosed with COPD during his military service or within one year of his military service. The RO additionally denied service connection on the basis that there was no evidence of a nexus relating the Veteran's diagnosis of COPD with asthma to his military service; as discussed in the August 2008 SOC. A November 2005 letter by his private physician stated that the Veteran was seen for his COPD after he was discharged from the hospital; his respiratory status was noted to be nearing its baseline and he reported that he discontinued tobacco abuse. In an April 2003 letter by a private physician it was noted that the Veteran worked in a garage and exposed to significant quantities of automotive exhaust and diesel exhaust; the private physician stated that he was concerned that the Veteran was more symptomatic because of workplace fume exposures. The RO then denied service connection on both a direct and presumptive service connection basis. As discussed herein above, the Veteran's a VA-9 Substantive Appeal in December 2008 was not timely as it was received 60 days after the expiration of the appeal period (based on the August 2008 SOC) and therefore, the December 2006 rating decision became final. 38 C.F.R. § 20.302(b). In addition, the RO determined that the Veteran did not warrant an extension under 38 C.F.R. § 20.303 because he did not file a request for an extension prior to the expiration of the appeal period. Thus, the December 2006 RO decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302(b), 20.1103. The Veteran filed a petition to reopen his claim for service connection for COPD with asthma in August 2009. The evidence received since the December 2006 decision includes additional private treatment records and statements made by the Veteran. The Board finds that the evidence submitted since the December 2006 RO decision contains little more than additional documentation of diagnoses and ongoing treatment for the Veteran's COPD with asthma. The Board finds that the new evidence is essentially redundant of that which is already on file, and as such, it provides nothing new or material to the question of service connection. To be new and material, the evidence would have to support one of the unsubstantiated facts necessary to grant service connection. Here that would have to be evidence of a link (such as a medical opinion) relating the Veteran's COPD with asthma to service. However, the Board notes that the additional evidence received pertains to the Veteran's service-connected ischemic heart disease and none of the evidence added to the claims file since the last final denial in December 2006 is a medical opinion relating the Veteran's COPD with asthma to service. The Board has considered whether the Veteran's statements could be accepted as new and material evidence. These statements may not be considered new and material evidence, since they are essentially repetitive of statements he made prior to the last final decision. Furthermore, even if the statements were first made now, and were not repetitive of statements made when he brought his original claim 2006, it remains a fact that the Veteran is only competent to discuss his symptoms and when he recalls them beginning; however, he is not competent to provide a medical diagnosis for his condition or to give a medical opinion as to the etiology of his COPD with asthma. See Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). New and material evidence to reopen the claim for service connection for COPD with asthma has not been received, and the RO decision of December 2006 remains final. As new and material evidence has not been received, the claim to reopen is denied. ORDER As new and material evidence has not been received to reopen the claim for service connection for COPD with asthma, the appeal to this extent is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs