Citation Nr: 1338246 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-30 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for asbestosis has been received. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from March 1959 to February 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for asbestosis on the basis that no new and material evidence had been received to reopen a previously denied claim that has become final. By way of history, the Board notes that an April 2001 rating decision from the Cleveland RO initially denied service connection for asbestosis on the merits. No timely Notice of Disagreement was filed, therefore the April 2001 decision became final. The Veteran submitted the current claim to reopen in November 2009. Later, the aforementioned March 2010 rating decision was issued. The Veteran filed a timely Notice of Disagreement in July 2010, and a Statement of the Case was issued in September 2011 denying service connection, finding that although new, no material evidence had been received. Although the RO has declined to reopen the Veteran's claim of entitlement to service connection for asbestosis, the Board has a jurisdictional responsibility to review on appeal that threshold determination prior to a review of the resulting "down stream" claim of entitlement to service connection for asbestosis. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Accordingly, the Board will review the issue of whether new and material evidence has been received. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are substantively duplicative of the evidence in the paper claims file. FINDINGS OF FACT 1. In April 2001, the Cleveland RO originally denied the claim of entitlement to service connection for asbestosis finding that there was no nexus to service. No timely Notice of Disagreement was filed in response to the April 2001 rating decision. 2. In July 2008, the Board denied the claim of entitlement to service connection for asbestosis finding that no new and material evidence had been received to reopen the previously denied claim. No timely appeal was filed in response to the July 2008 Board decision, therefore it is final. 3. The evidence received and associated with the claims file since the July 2008 Board decision is cumulative and redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for asbestosis, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2001 rating decision that denied service connection for asbestosis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The July 2008 Board decision that denied whether new and material evidence had been received to reopen a previously denied claim is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2013). 3. As new and material evidence has not been received, the claim for service connection for asbestosis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A December 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a September 2011 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Specific to requests to reopen, a claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Additionally, the December 2009 letter provided the Veteran with notice in accordance with Kent. As this letter was sent prior to the March 2010 adjudication of the claim, the Board finds that the duty to notify was satisfied. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records, private treatment records, and personnel records have been obtained; he did not identify any VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability records reveal a 1997 determination of disabled and the associated records have been associated with the claims file. 38 C.F.R. § 3.159(c)(2). The newly submitted evidence does not show a nexus between the Veteran's current diagnosis of asbestosis and his military service, consequently, no VA examination is necessary under the circumstances of this case. See 38 C.F.R. § 3.159 (c)(4)(iii) (stating that VA is not required to secure a medical examination or opinion in a claim to reopen a previously denied claim unless it is determined that new and material evidence has been submitted and the claim is reopened). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Accordingly, the Board will address the issue on the merits. New and Material Evidence Analysis In April 2001, the Cleveland RO denied the Veteran's original claim of entitlement to service connection for asbestosis, finding that there was no evidence of a nexus between the current diagnosis and service. In July 2003, the Veteran filed a claim to reopen. In a September 2003 rating decision, the St. Petersburg RO determined that the requisite new and material evidence had not been received to reopen the Veteran's previously denied claim for entitlement to service connection for asbestosis. The Veteran submitted a timely Notice of Disagreement in response to the September 2003 rating decision. The Board issued a decision determining that no new and material evidence had been received in September 2005. The Court of Appeals for Veteran's Claims (CAVC) issued a Joint Motion for Remand in December 2006, which vacated the previous September 2005 Board decision due to proper notice requirement issues. The claim was remanded by the Board in June 2007 in order to comply with the notice requirements. In July 2008, the Board determined that the evidence submitted was cumulative and that it did not raise a reasonable possibility of substantiating the claim. The Veteran did not appeal the July 2008 and therefore it became final. In November 2009, the Veteran submitted a new claim to reopen. The St. Petersburg RO again denied the claim in a March 2010 rating decision finding that no new and material evidence had been received. In July 2010, the Veteran filed a timely Notice of Disagreement to the March 2010 rating decision. The evidence considered by the Cleveland RO in April 2001 consisted of service treatment records from March 1959 to February 1963 that were negative for any complaints, treatment, or diagnosis of asbestosis. Furthermore, they did not show that the Veteran worked with asbestos, although he may have been exposed to it during service because it was used on all the ships that the Veteran served on. The evidence also consisted of a July 2000 lay statement from the Veteran, alleging his initial exposure to asbestos while aboard multiple naval ships (USS Enterprise, USS DeMoines, and the USS Benewah), his 1986 diagnosis, his post-service employment as an asbestos worker from 1964 to 1991, which is negative evidence directly against his claim, and his receipt of Social Security Disability payments for his disabilities. Additionally, the evidence of record included medical records from the St. Vincent Medical Center from 1966 to 1997, which indicated treatment for coronary artery disease and noted asbestosis as an impression. Records from The Industrial Commission of Ohio confirmed the 1986 diagnosis of asbestosis and documented his award of disability benefits, effective in 1999. Finally, the evidence consisted of records from the Navy regarding the inability to determine the extent to which the Veteran may have been exposed to asbestos during service. The records noted that the Veteran was a seaman and that such occupation has a minimal probability of exposure. The basis for the denial was that there was no record of a nexus linking the diagnosis to military service for service connection purposes. The Veteran was provided notice of that decision in April 2001, but did not submit a Notice of Disagreement within one year of that notice. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d) (2012). The evidence considered during the July 2008 Board decision consisted of additional lay statements from the Veteran wherein he emphasizes his initial exposure to asbestos while aboard the USS DeMoines during decommissioning. The Veteran claimed that his duties included working in areas where asbestos was present. Furthermore, he stated that he lived aboard the USS Enterprise and the USS Benewah and was exposed to asbestos on those ships as well. Private medical treatment records from Dr. H.K. confirmed a diagnosis of asbestosis several years post service. Lastly, additional Social Security Disability evidence was submitted indicating a diagnosis of asbestosis and an award of benefits effective 1999 for a spine disability and chronic obstructive pulmonary disease (COPD). The basis for the denial was that although some of the evidence was "new"; such evidence did not raise a reasonable possibility of substantiating the claim by showing a nexus between the current asbestosis and service. Therefore it was not deemed "material", but instead duplicative of the evidence already of record. In November 2009, the current claim to reopen was received by the RO. The evidence received since the last final denial in July 2008 consisted of private medical evidence from Oregon Pulmonary and Sleep Specialist from August 2009, private medical evidence from Dr. K from August 2003 to June 2008, private medical evidence from Radiological Associates, Inc. from June 2004, and multiple written lay statements from the Veteran. In addition, a letter received in July 2010 from Dr. K indicated that the Veteran was regularly seen for asbestosis based upon a history of exposure to asbestos and that chest radiographs show extensive restrictive disease from calcified pleural plaques. The basis for the RO's denial was that none of the newly received evidence provided a link between the current diagnosis of asbestosis and the Veteran's military service, therefore it was not considered to be "new and material" evidence which is required to reopen a previously denied claim. An RO determination as to whether evidence is "new and material" for purposes of reopening is subject to de novo adjudication by the Board. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Under 38 C.F.R. § 3.156(a), as amended, 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 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 prior denials of the claim had been essentially based upon the finding that there was no evidence of a nexus between the current diagnosis of asbestosis and the Veteran's military service. Accordingly, for evidence to be new and material in this matter, it would have to tend to show that the Veteran's asbestosis disability is related to service. Assuming its credibility, all the evidence received since the July 2008 Board denial is cumulative and redundant. All of the written lay statements submitted by the Veteran included the same exposure to asbestos while aboard US Naval ships and initial 1986 diagnosis allegations. The private medical records from Radiological Associates, Inc. reveals x-ray findings that the Veteran's postoperative lung impressions are consistent with previous asbestos exposure. Further, the private medical records submitted regarding the treatment from Dr. H.K. and Dr. K indicate the existence of a diagnosis of asbestosis and ongoing treatment and testing for such, but all fail to positively relate the current diagnosis to the Veteran's military service. At best, they show that at some point in the past, the Veteran was exposed to asbestos, that the Veteran is still receiving active treatment for his asbestosis disability, and the severity of such. When considered with previous evidence of record, including the Veteran's previously considered admission of post-service employment as an asbestos worker for several years, the evidence cannot be considered new and material to the question of whether the asbestos exposure that led to the Veteran's current asbestosis was from his military service. No further evidence has been received. None of the new evidence relates to the unestablished fact necessary to substantiate the claim-a nexus between the current diagnosis of asbestosis and the Veteran's military service; nor does it raise a reasonable possibility of substantiating the claim of entitlement to service connection. The Board finds that the noted evidence received subsequent to the Cleveland RO's April 2001 rating decision is not new and material as it does not provide a nexus between the current asbestosis disability and military service. As a result, the requirements to reopen the claim of entitlement to service connection for asbestosis have not been met. Accordingly, the Veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. & 2012); 38 C.F.R. § 3.156, 3.159, 3.304 (2013). ORDER New and material evidence has not been received to reopen a claim for service connection for asbestosis; the appeal is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs