Citation Nr: 1332629	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  12-23 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for disability of the left shoulder.

2.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for asbestosis, and if so, whether the claim should be granted.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Schechter, Counsel



INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  

The Veteran served on active military duty from March 1951 to March 1953. 

This appeal comes before the Board of Veterans' Appeals (Board) from October 2008 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

Although the RO determined in a September 2010 decision that new and material evidence had been submitted to reopen the claim of entitlement to service connection for asbestosis, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The issue of entitlement to service connection for asbestosis is addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  In August 2012, prior to the promulgation of a decision in the appeal, the VA received a signed statement from the Veteran expressing his desire to withdraw his appeal for service connection for disability of the left shoulder.

2.  The claim of entitlement to service connection for asbestosis was denied in a rating decision issued in August 2002; the Veteran did not perfect an appeal of the decision or submit any pertinent evidence within the appeal period.

3.  The evidence received since the expiration of the appeal period includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for asbestosis.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for service connection for disability of the left shoulder have been met.  38 U.S.C.A. § 7105(b) (2), (d) (5)  (West 2002); 38 C.F.R. § 20.204  (2012).

2.  New and material evidence has been presented to reopen a claim of entitlement to service connection for asbestosis.  38 U.S.C.A. § 5108  (West 2002); 38 C.F.R. § 3.156  (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal of Left Shoulder Appeal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105  (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204  (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a statement received by the RO in August 2012 and subsequently forwarded to the Board, the Veteran expressed his desire to withdraw his appeal for service connection for disability of the left shoulder.  Therefore, there remains no allegation of error of fact or law for appellate consideration.  Consequently, the Board does not have jurisdiction to review the appeal for this benefit, and the appropriate action by the Board is dismissal.  


II.  Claim to Reopen

Legal Principles

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108 , which provides that 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a)  as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Analysis

The RO denied a claim of entitlement to service connection for asbestosis in a rating decision issued in August 2002.  The Veteran was notified of the denial by a letter dated in August 2002, and submitted a notice of disagreement in November 2002.  However, the Veteran did not submit a substantive appeal in response to a statement of the case (SOC) issued in July 2003.  Consequently, the appeal was not perfected.  38 C.F.R. § 20.200 (2012).  

The bases for the denial of the claim of entitlement to service connection for asbestosis in August 2002 was that the evidence failed to show that the Veteran was exposed to asbestos in service. 

The evidence of record in August 2002 consisted of the Veteran's statements, service treatment records, and private treatment records, containing diagnoses of respiratory conditions.

No pertinent evidence was received within the appeal period following the August 2002 decision.  Evidence received after the expiration of the appeal period includes statements from the Veteran asserting that he was exposed to asbestos in service as follows:  (1) exposure to asbestos for a year period in barracks while stationed stateside, when contractors reportedly tore out asbestos insulation while the soldiers were residing in the barracks; (2) exposure to asbestos in powder bags while loading cannons during the Korean Conflict, with the asbestos in the bags to avoid misfiring due to the heat of the cannons; and (3) exposure while being transported aboard troop ships.  

The Veteran's statements are not cumulative or redundant of the evidence previously of record.  Moreover, they relate to an unestablished fact necessary to substantiate the claim.  Accordingly, they are new and material, and reopening of the claim is in order. 


ORDER

The appeal for entitlement to service connection for disability of the left shoulder is dismissed. 

New and material evidence having been received, reopening of the claim for service connection for asbestosis is granted.


REMAND

Evidentiary development is in order before the Board decides the claim for service connection for asbestosis.  

The Veteran has contended that he was exposed to asbestos through exposure to powder bags containing asbestos when loading cannons during the Korean Conflict.  The Veteran's service form DD 214 reveals that the Veteran received the Occupation Medal (Germany), and does not reflect service in Korea during the Korean Conflict.  Service treatment records reflect that in 1952 he was attached to the Artillery B Battery, 465th FA Battalion.  The DD 214 reflects that he had eleven months and twelve days of overseas service.  The Veteran's service personnel records should be sought, in an attempt to verify his asserted service in Korea.

Additionally, the Veteran's scenarios by which he alleges he was exposed to asbestos in service should be addressed though official channels, in an effort to validate such exposure.  

In a March 1987 claim, the Veteran reported having a pending appeal of a Social Security Administration (SSA) disability claim.  Since records in the possession of the SSA could be supportive of the Veteran's claim, further development to obtain those records is in order.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran's claim.

2.  Undertake appropriate development to obtain all available service personnel records.  

3.  Undertake appropriate development to obtain copy of any SSA disability determinations for the Veteran and a copy of the records upon which such determinations were based.

4.  Contact the U.S. Army Public Health Command, Office of Toxicology, Army Institute of Public Health, 5158 Blackhawk Road, Aberdeen Proving Ground, MD 21010-5403, for an asbestos exposure modeling.  This institution should be asked to apply its expertise to the question of the likelihood and extent of the Veteran's exposure to asbestos through each of the following scenarios of alleged exposure:  (1) exposure to asbestos for a year period in barracks in service while stationed stateside, when contractors reportedly tore out asbestos insulation while the soldiers were residing in the barracks; (2) exposure to asbestos in powder bags while loading cannons during the Korean Conflict, with the asbestos in the bags to avoid misfiring due to the heat of the cannons; and (3) exposure while being transported aboard troop ships.  The RO or the AMC should cooperate with any assistance or informational needs of this institution for this inquiry.  All requests, responses, and reports received should be associated with the record.

5.  Thereafter, afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of the Veteran's claimed asbestosis.  The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

If it is determined that asbestosis has been present at any time during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated in service or is otherwise etiologically related to the Veteran's active service.  For purposes of the opinions, the examiner should assume that the Veteran is credible.  

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided.

6.  The RO or the AMC should also undertake any other development deemed appropriate.

7.  Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

As noted above this case has been advanced on the Board's docket.  It must also must be handled in an expeditious manner by the RO or the AMC.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs