Citation Nr: 18142084 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 14-33 840 DATE: October 16, 2018mORDER The request to reopen a claim for service connection for respiratory disability is denied. FINDINGS OF FACT 1. In a July 2003 rating decision, the RO denied entitlement to service connection for a lung disorder as a result of asbestos exposure to include mesothelioma and asbestosis. 2. Evidence received since the July 2003 rating decision does not relate to an unestablished fact necessary to substantiate the claim, or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 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. New evidence is defined as 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). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim for service connection for asbestosis The Veteran’s original respiratory disability claim was denied in July 2003. He specifically identified the disability as mesothelioma. His 2012 claim to reopen was denied in 2013. He disagreed with that decision, but passed away in 2014. His surviving spouse has been substituted for the Veteran and she perfected an appeal of the denied claim to reopen. The basis for the July 2003 rating decision that denied the Veteran’s claim for benefits was asbestos exposure during military service had not been established, he did not have mesothelioma, and the record did not show a chronic lung disorder started during service. The Veteran did not initiate an appeal of this decision and the rating decision is final. 38 U.S.C. § 7104 (West 2012); 38 C.F.R. § 20.1100 (2018). At the time of the July 2003 rating decision, the Veteran’s service records were reviewed. These did not show the onset of a chronic lung disorder, or establish any asbestos exposure during service. A September 2002 statement from a private physician contained the comment it was quite likely the Veteran had asbestos exposure while in the service (there was x-ray evidence of pleural plaques consistent with asbestos exposure), however, the same provider noted in a March 2002 phone call record with the Veteran that he suspected the Veteran’s asbestos exposure was from brake linings with which the Veteran worked in a car repair facility. Thus, the RO concluded asbestos exposure in service was not established, and that a chronic lung disorder did not begin during service. It also was noted the Veteran had not been diagnosed to have mesothelioma. Evidence received since the 2003 decisions includes records of treatment for respiratory disability, and a statement from one of the Veteran’s former employers to the effect that facility would not have had any asbestos during the course of the Veteran’s career (1995-2008). Although new, this evidence does not address un-established fact necessary to substantiate the claim – which is, evidence that would suggest asbestos exposure during active duty, or the onset of a respiratory disability during service. Specifically, while the Board notes that the statement submitted by the Veteran’s former employer tends to establish that he was not exposed to asbestos during his employment there, it does not establish that the Veteran was thereby exposed during active service. Likewise, the records of current treatment do not address whether current disability began during service. The Board therefore finds that the submitted evidence is not new and material, and that it does not raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. § 3.156 (2017). Therefore, the claim is not reopened. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel