Citation Nr: 21011064 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-54 326 DATE: February 26, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for asbestosis is reopened. As new and material evidence has not been received, the previously denied claim of service connection for a left leg disability is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a left hip disability, including as due to a left leg disability, is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for bilateral hearing loss is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, is not reopened. Entitlement to service connection for skin cancer is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for asbestosis is remanded. FINDINGS OF FACT 1. In a rating decision dated on July 17, 2013, and issued to the Veteran and his service representative on July 19, 2013, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, the Veteran’s claims of service connection for a left leg disability and for a left hip disability, including as due to a left leg disability, and for bilateral hearing loss and also denied the Veteran’s requests to reopen previously denied claims of service connection for asbestosis and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability; this decision was not appealed and became final. 2. The evidence received since July 2013 is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claims of service connection for a left leg disability and for a left hip disability, including as due to a left leg disability, and for bilateral hearing loss and the request to reopen a previously denied claim of service connection for a cervical spine disability, including as due to a service-connected lumbosacral spine disability. 3. The evidence received since July 2013 relates to an unestablished fact necessary to substantiate the claim of service connection for asbestosis because it shows that the Veteran experiences current disability which may be related to active service. 4. The record evidence shows that the Veteran does not experience any current disability due to his claimed skin cancer which could be attributed to active service. CONCLUSIONS OF LAW 1. The July 2013 rating decision, which denied the Veteran’s claims of service connection for a left leg disability and for a left hip disability, including as due to a left leg disability, and for bilateral hearing loss and also denied the requests to reopen previously denied claims of service connection for asbestosis and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 2. Evidence received since the July 2013 rating decision in support of the claims of service connection for a left leg disability and for a left hip disability, including as due to a left leg disability, and for bilateral hearing loss and in support of the request to reopen a previously denied claim of service connection for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, is not new and material; thus, these claims are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. Evidence received since the July 2013 rating decision in support of the claim of service connection for asbestosis is new and material; thus, this claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for entitlement to service connection for skin cancer have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1961 to April 1965. The Board observes that, in a July 2013 rating decision, the AOJ denied, in pertinent part, the Veteran’s claims of service connection for a left leg disability and for a left hip disability, including as due to a left leg disability, and for bilateral hearing loss and also denied the Veteran’s requests to reopen previously denied claims of service connection for asbestosis and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability. This decision was not appealed and became final. See 38 U.S.C. § 7104 (2012). The Veteran also did not submit any relevant evidence or argument within 1 year of the July 2013 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, asbestosis, and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, are as stated on the title page. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the AOJ in December 2019. A videoconference Board hearing was held in January 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran’s hearing testimony, the Board finds that the issues on appeal should be characterized as stated above. Service Connection 1. Whether new and material evidence has been received to reopen the previously denied claims of service connection for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, or for a cervical spine disability, including as due to a service-connected lumbosacral spine disability The Board finds that the preponderance of the evidence is against granting the Veteran’s request to reopen his previously denied claims of service connection for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran essentially requested that these claims be reopened in statements on a VA Form 21-0820 dated on September 8, 2014. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied service connection claims for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, the evidence before VA at the time of the prior final AOJ decision in July 2013 consisted of his service treatment records, his post-service VA outpatient treatment records and examination reports, and his lay statements. The AOJ concluded that the record evidence did not show any current disability due to the Veteran’s claimed left leg or left hip disabilities which could be attributed to active service. The AOJ also concluded that, although the Veteran experienced bilateral hearing loss for VA adjudication purposes, a VA examiner specifically opined that it was less likely than not that this disability is related to active service. The AOJ finally concluded that, although the record evidence showed that the Veteran experienced a current cervical spine disability, a VA examiner specifically opined that it was less likely than not that this disability is related to active service or was caused or aggravated (permanently worsened) by a service-connected lumbosacral spine disability. Thus, all of these claims were denied. The newly received evidence still does not show that the Veteran experiences any current disability due to his claimed left leg disability or left hip disability which could be attributed to active service. It also does not show that either the Veteran’s bilateral hearing loss or his cervical spine disability is related to active service. The evidence received since July 2013 consists of additional VA outpatient treatment records and examination reports and additional lay statements and Board hearing testimony. His lay statements asserting an etiological link between any of these claimed disabilities and active service are duplicative of statements previously considered by the AOJ. Critically, there is no new evidence that any of these claimed disabilities is related to active service. The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s request to reopen his previously denied service connection claims for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, or for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening any of these claims. Unlike in Shade, there is no new evidence in this case either previously considered in the July 2013 AOJ decision or received since that decision became final which demonstrates that any of these claimed disabilities is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s request to reopen these previously denied service connection claims. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a left leg disability, a left hip disability, including as due to a left leg disability, bilateral hearing loss, and for a cervical spine disability, including as due to a service-connected lumbosacral spine disability, are not reopened. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for asbestosis The Board finds that the evidence supports reopening the Veteran’s previously denied claim of service connection for asbestosis. The Board acknowledges that new and material evidence has been received since the prior final AOJ decision in July 2013 sufficient to reopen the previously denied claim. The Board again notes initially that claims of service connection may be reopened if new and material evidence is received. See Manio, 1 Vet. App. at 140. As noted above, the Veteran essentially requested that this previously denied service connection claim be reopened in statements on a VA Form 21-0820 dated on September 8, 2014. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s application to reopen the previously denied service connection claim for asbestosis, the evidence before VA at the time of the prior final AOJ decision in July 2013 consisted of his service treatment records, his post-service VA outpatient treatment records and examination reports, and his lay statements. The AOJ concluded that the evidence did not indicate that the Veteran’s asbestosis is related to active service. Thus, the claim was denied. The newly received evidence shows that the Veteran experiences current disability due to asbestosis which may be related to active service. Specifically, the evidence shows that the Veteran was diagnosed as having early asbestosis by a private pulmonologist in approximately 2005. (The Board notes parenthetically that it is not clear why this record was not reviewed by the AOJ at the time of the July 2013 rating decision given the date of this evidence. Nevertheless, the record evidence listed in the July 2013 rating decision does not include the 2005 diagnosis of early asbestosis.) The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156 (a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the evidence submitted since July 2013 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to an unestablished fact necessary to substantiate the claim of service connection for asbestosis and raises a reasonable possibility of substantiating this claim. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for asbestosis is reopened. 3. Entitlement to service connection for skin cancer The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for skin cancer. Contrary to the Veteran’s lay assertions, the record evidence shows that he does not experience any disability due to his claimed skin cancer which could be attributed to active service. The Board notes initially that the available service treatment records show no complaints of or treatment for skin cancer at any time during active service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for skin cancer. It shows instead that the Veteran does not experience any disability due to his claimed skin cancer which could be attributed to active service. A review of the Veteran’s post-service VA and private outpatient treatment records shows that he has not complained of or sought treatment for skin cancer in the decades since his service separation. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced skin cancer at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s unsupported lay assertions and hearing testimony – that he experiences disability due to his claimed skin cancer which could be attributed to active service or any incident of service. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for skin cancer. Thus, the Board finds that service connection for skin cancer is not warranted. REASONS FOR REMAND Entitlement to service connection for COPD, hypertension, and for asbestosis is remanded. The Veteran finally contends that he incurred COPD and hypertension during active service and experienced continuous post-service disability. As discussed above, the Board has reopened the previously denied service connection claim for asbestosis. The record evidence shows that the Veteran has current diagnoses for each of these claimed disabilities. To date, however, the AOJ has not obtained medical nexus opinions concerning the nature and etiology of these disabilities. Thus, the Board finds that, on remand, the AOJ should obtain these opinions. The AOJ also should obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Forward the claims file to a clinician for opinions concerning the nature and etiology of the Veteran’s COPD and asbestosis. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that COPD is related to active service. The clinician next is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that asbestosis is related to active service. A rationale must be provided for any opinion(s) expressed. The clinician is advised that, following his service separation, the Veteran worked for many years in a naval shipyard. 3. Forward the claims file to a clinician for an opinion concerning the nature and etiology of the Veteran’s hypertension. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension is related to active service. A rationale must be provided for any opinion(s) expressed. (Continued on the next page)   4. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.