Citation Nr: 18153746 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-31 982 DATE: November 28, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for lower back condition is granted. Service connection for lower back condition is denied. Service connection for respiratory condition, claimed as scarring of the lungs due to asbestos exposure, is denied. FINDINGS OF FACT 1. In a May 1975 decision, the RO denied service connection for back condition; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. Evidence added to the record since the May 1975 decision denying service connection for back condition, relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 3. The preponderance of the evidence is against finding that lower back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a respiratory condition, claimed as scarring of the lungs, due to asbestos exposure. CONCLUSIONS OF LAW 1. The May 1975 Board decision that disallowed a claim of service connection for back condition is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §20.1100 (2018). 2. The criteria for reopening a claim of entitlement to service connection for back condition have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). 3. The criteria for service connection for lower back condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for respiratory condition, claimed as scarring of the lungs due to asbestos exposure have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to February 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2012 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is associated with the claims file. At the time of the hearing, the undersigned stated that the Veteran’s back claim was a new claim and not a claim to reopen his previously denied claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for aggravation of back pain due to VA surgical treatment in November 1988 and February 1989. Indeed, this is not a claim to reopen that issue. Upon further review, however, the Board notes a May 1975 rating decision did specifically address the issue of service connection for a back condition. As such, the current back claim is a claim to reopen the service connection issue denied in the May 1975 rating decision. As the RO adjudicated this claim on the merits and the Board reopens the issue below, the Veteran is not prejudiced by this error. Service Connection 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for lower back condition Prior to the filing of the current claim of entitlement to service connection for a lower back disability, the AOJ previously denied a claim of service connection for a back condition disability in May 1975. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (1975). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (1975). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (1975). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim 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. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The May 1975 rating decision denied service connection because his claimed back condition was not shown by the evidence of record. Evidence received since that rating decision includes medical treatment records show chronic low back pain. As evidence a current back condition was lacking at the time of the May 1975 rating decision, which was the last decision on the merits, this new evidence relates to an unestablished fact necessary to substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for a lower back disability have been met. 2. Service connection for lower back condition The Veteran contends that his current back condition began during his active duty military service. Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In this case, however, the Veteran has not been diagnosed with arthritis of the lower back and so presumptive service connection is not warranted. Service connection for lower back condition may still be granted on a direct basis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of chronic low back pain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). No examination was provided regarding this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, while the Veteran believes his lower back condition is related to military service, the Board reiterates that the preponderance of the evidence weighs against findings that any in-service lower back injury, event, or disease occurred. His service treatment records are silent with regard to any complaints or diagnosis of or treatment for a lower back condition. Although the Veteran has repeatedly stated that he was hospitalized for a lower back condition in Portsmouth in 1973 or 1974, there is no record of any such hospitalization. Instead, the record shows that the Veteran was hospitalized in May 1974 in Portsmouth for abdominal pain. After five days of treatment, this condition resolved and the Veteran was discharged with a diagnosis of gastritis. The Veteran sustained post-service back injuries in June 1982 and September 1988. Subsequent records refer to these injuries as the onset of the Veteran’s low back pain. Thus, the preponderance of the evidence is against finding that a lower back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The preponderance of evidence is against service connection for lower back condition. Thus, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for respiratory condition, claimed as scarring of the lungs due to asbestos exposure The Veteran contends that he has a current respiratory condition due to in-service asbestos exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of scarring of the lungs or any asbestos-related respiratory condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Indeed, although his recent VA treatment records reflect a reported remote history of asbestos exposure in the Navy, radiographic imaging in January 2015 specifically found no evidence of asbestosis. While the Veteran believes he has a current diagnosis of scarring of the lungs, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing and imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   The preponderance of evidence is against service connection for a respiratory condition. Thus, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel