Citation Nr: 18154782 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 14-42 473 DATE: ORDER The request to reopen the finally disallowed claim of entitlement to service connection for a left lung condition is denied. FINDINGS OF FACT 1. In a June 2000 rating decision, the Regional Office (RO) denied service connection for a left lung condition; the Veteran did not perfect a timely appeal and that decision became final. 2. The additional evidence received since the June 2000 rating decision is cumulative or redundant of the evidence previously of record at the time of the prior decision, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claim of service connection for a left lung condition. CONCLUSIONS OF LAW 1. The June 2000 rating decision denying service connection for a left lung condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a left lung condition has not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R §§ 3.156, 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1972 to March 1974. The Veteran originally requested a Board hearing, but later withdrew this request in February 2018. In a February 2018 Statement in Support of Claim, the Veteran via his representative, requested that his appeal be expedited because of the Veteran’s poor health. The Board has reviewed the motion and grants the request to advance on the docket based on this medical concern. See 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which declined to reopen a claim of service connection for a lung disability. The Veteran filed a Notice of Disagreement with this decision in April 2011, and the denial was continued in a September 2012 Statement of the Case. See April 2011 Statement in Support of Claim; September 2012 Statement of the Case. Subsequently in September 2012, the Veteran via his representative, submitted a statement in response to the September 2012 Statement of the Case via a Statement in Support of Claim. Therefore, this September 2012 correspondence can be liberally construed as a timely “in lieu of” Form 9, which was never acted upon. As such, the March 2011 rating decision has not become final and is the subject of the instant appeal, as noted. New and Material Evidence. Rating decisions that have not been timely appealed are binding and final based on the evidence of record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence that either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. § 3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final disallowance of a claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vet. App. 216 (1995). Whether new and material evidence has been received to reopen the finally disallowed claim of entitlement to service connection for a left lung condition. In the June 2000 rating decision, the RO denied service connection for a left lung condition. The RO notified the Veteran of the decision and of the Veteran’s appellate rights in a letter dated July 2000. See July 2000 Notification Letter. While the Veteran filed a notice of disagreement, he did not perfect a timely appeal following the August 2002 Statement of the Case, nor did the Veteran submit new and material evidence within one year of that June 2000 rating decision. Thus, the June 2000 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In the March 2011 rating decision, the RO denied the request to reopen the claim for a left lung condition because the evidence submitted was not new and material. Notwithstanding the RO’s actions, the Board has a legal duty to determine whether new and material evidence has been presented to reopen the finally disallowed claim of service connection for a left lung condition. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The relevant evidence that was considered at the time of the June 2000 rating decision was: service medical records spanning the Veteran’s service from December 1971 to May 1974; a July 1992 VA examination; May 1992 reports from the VA Medical Center in Sioux Falls; and a letter from April 2000 that was sent to the Veteran requesting medical evidence to support the claim. The Veteran did not respond to this request. See June 2000 Rating Decision. The RO denied service connection for a left lung condition in the June 2000 rating decision because there was no demonstrated in-service incurrence of a left lung condition. The RO observed that in the May 1974 report of medical history that was administered at separation, the Veteran denied ever having shortness of breath, tuberculosis, asthma, or pain or pressure in the chest. See March 2000 Rating Decision; see also May 1974 Report of Medical History. The RO also noted that the service medical records contain no reports relating to treatment for a left lung condition. The RO’s conclusion further relied upon the July 1992 VA examination where no lung disability was diagnosed and where the Veteran’s lungs were clear and devoid of tenderness in the chest wall. See July 1992 Compensation and Pension Exam Report. In sum, the RO was able to accordingly determine that the evidence then of record showed that there was no in-service incurrence of a left lung condition. Accordingly, the Board finds that new and material evidence would consist of evidence that relates to demonstrating in-service incurrence of a left lung condition. The evidence received since the June 2000 rating decision consists of VA medical records that span from 1972 to 2018. In October 1972, the Veteran was diagnosed with an unspecified virus infection in the upper respiratory tract; however, there is no subsequent elaboration or additional treatment records that expound on this. A month earlier, in September 1972, the Veteran received a physical examination and the Veteran’s lungs were found to be clear and with a clear cough. See September 1972 and October 1972 Clinical Records. The Veteran reported treatment for an upper respiratory condition at Fort Gordon in 1974 and requested these records in June 2010; however, the Veteran was advised in an August 2010 letter that a search was unable to locate any records relating to this condition. See August 2010 Formal Finding on Unavailability of Clinical Records; see also August 2010 Request for Information. In February 2013, the Veteran met with a primary care physician with complaints of a sore throat. In this examination, the Veteran’s lungs were found to have clear auscultation. No lung or chest pain issues were noted. See February 2013 Primary Care E & M Note. VA medical records from August 2013 show that the Veteran met with a resident physician to go over several chronic medical issues. These records go on to note, however, that an examination of the Veteran is negative for any chest pain or shortness of breath, that the Veteran has normal breath sounds, symmetric expansion, and no rales or rhonchi. See August 2013 Primary Care Outpatient Note. In a January 2016 visit to the emergency department, VA medical records show that the Veteran reported left flank pain, although an examination of the Veteran’s lungs yielded no adventitious breath sounds. Further, these records show that the Veteran first noted this pain shortly after lifting heavy bags of sand a few weeks prior to the evaluation. See January 2016 Nursing Emergency Dept. Discharge Note. In June 2017, VA medical records of a primary care visit for oral pain show that the Veteran’s lungs were also evaluated. No lung or chest issues were noted and clear auscultation was reported. See June 2017 Primary Care Note. Following this examination, but also in June 2017, VA medical records note a phone call pertaining to medications being mailed out. In this phone call, the Veteran stated that his lung was damaged in service, and that he has had rhinitis, wheezing, and left lung pain since his separation from service. See June 2017 Addendum. The weight of these subsequent VA medical records do not contain any evidence that provides an etiological nexus between the claimed left lung condition and the Veteran’s service. Further, the more recent VA medical records do not indicate the presence of any left lung condition. These VA medical records do not contain any information that is germane to the matter of whether the Veteran’s claimed left lung condition is of service origin. Therefore, those records do not relate to an unestablished fact necessary to substantiate the claim; that is, whether the Veteran’s claimed left lung condition is of service origin. Accordingly, the Board finds that the evidence submitted subsequent to the June 2000 rating decision provides no relevant information as to the question of whether there was in-service incurrence of a left lung condition. Thus, the evidence is not material evidence under 38 C.F.R. § 3.156(a) and the Board finds that the evidence cited above does not constitute material evidence sufficient to reopen the Veteran’s claim for service connection. As material evidence has not been received, the previously denied claim of entitlement to service connection for a left lung condition is not reopened. The benefit of the doubt doctrine is not applicable in this case since the Veteran has not met the threshold burden of submitting material evidence necessary to reopen a claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Voight, Associate Counsel