Citation Nr: 21067313 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-49 896 DATE: November 3, 2021 ORDER The application to reopen a previously denied claim of entitlement to service connection for asbestosis is granted. Entitlement to service connection for major depressive disorder is dismissed. Entitlement to service connection for mood disorder is dismissed. REMANDED Entitlement to service connection for a respiratory disorder, to include asbestosis, chronic obstructive pulmonary disease (COPD) and asthma, is remanded. FINDINGS OF FACT 1. In a November 2011 decision, the RO denied service connection for asbestosis. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the November 2011 decision includes evidence that relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for asbestosis. 3. At the July 2021 Board hearing, the Veteran withdrew from appeal the issues major depressive disorder and mood disorder. CONCLUSIONS OF LAW 1. The November 2011 decision that denied the Veteran's claim for entitlement to service connection for asbestosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. 2. New and material evidence has been received to warrant reopening the claim for service connection for asbestosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for withdrawal of the issue of service connection for major depressive disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of service connection for mood disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to April 1977. This case comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision which denied applications to reopen claims for service connection for asbestosis, mood disorder, and depression. In August 2014 the Veteran filed a notice of disagreement (NOD) and in September 2016 the RO issued a statement of the case (SOC). In September 2016 the Veteran filed a substantive appeal (via VA Form 9). In July 2021 the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Withdrawal of the Veteran's claim for service connection for major depressive disorder and mood disorder The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal and may be made by the appellant or the authorized representative. 38 C.F.R. § 19.55(a). Unlike 38 C.F.R. § 20.204, its predecessor regulation, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. With regard to such oral withdrawals, "withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his appeal must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). In this case, at the July 2021 Board hearing, the undersigned VLJ asked the Veteran if he understood that he withdrew his appeal, he could change his mind and file a new claim but that he would have to start over from the beginning and if benefits were eventually awarded, they would not be awarded as far back as they would have had he not withdrawn the appeal. The Veteran indicated that he understood. Thus, the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Moreover, even in the absence of explicit language allowing for withdrawal of an appeal, there is no prohibition against such withdrawal. Dismissal of this appeal is therefore appropriate in these circumstances. Therefore, the Veteran has withdrawn his appeal from the denial of the claim for service connection for major depressive disorder and mood disorder. Accordingly, the Board does not have jurisdiction to review the appeal of that claim, and the appeal is dismissed. The application to reopen the claim for service connection for asbestosis is granted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that 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 that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a November 2011 decision, the RO denied service connection for asbestosis. The denial was based both on lack of a diagnosis and also lack of evidence of exposure to asbestos. The Veteran did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the decision. Thus, the November 2011 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The evidence received since the November 2011 decision includes lay testimony from the Veteran at the July 2021 Board hearing in which he stated he has recently been diagnosed with COPD and asthma. Because a veteran is competent to report a contemporaneous diagnosis, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis), this constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a), and reopening of the claim is therefore warranted. REASONS FOR REMAND Entitlement to service connection for a respiratory disorder, to include asbestosis, COPD, and asthma, is remanded. At the July 2021 Board hearing the Veteran indicated there were outstanding relevant treatment records not included in his claims file. It is unclear whether these are private treatment records or VA treatment records. The Board notes that any VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). Accordingly, the claim must therefore be remanded to retrieve any outstanding private or VA medical records and to afford the Veteran a VA examination, if warranted, as to the nature and etiology of his respiratory disorder. The matters are REMANDED for the following action: Ask the Veteran to complete VA Form 21-4142 and identify the location and name of any VA or private medical facility where he has received treatment for asbestosis, COPD, or asthma, to include the dates of any such treatment. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. After the above development, and, if warranted, a VA examination as to the nature and etiology of the Veteran's respiratory disorder, readjudicate the issue of entitlement to service connection for a respiratory disorder, to include asbestosis, COPD, and asthma. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence received and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.