Citation Nr: 22016277 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-54 422 DATE: March 21, 2022 ORDER New and material evidence has not been received to reopen the claim for service connection for an asthma disability (also claimed as respiratory condition, to include hay fever) and relevant official service department records have not been received to reconsider the claim, and therefore, it is denied. New and material evidence has not been received to reopen the claim for service connection for chronic obstructive pulmonary disease (COPD) and relevant official service department records have not been received to reconsider the claim, and therefore, it is denied. FINDINGS OF FACT 1. A May 2007 rating decision denied the claim of entitlement to service connection for asthma. No new material evidence and no relevant official service department records have been received since the last, final rating decision that denied service connection for an asthma disability. 2. An October 2009 rating decision denied the claim of entitlement to service connection for COPD. No new material evidence and no relevant official service department records have been received since the last, final rating decision that denied service connection for COPD. CONCLUSIONS OF LAW 1. New and material evidence has not been received and relevant official service department records have not been obtained with respect to the previously denied claim of entitlement to service connection for an asthma disability, and the criteria for the petition to reopen the claim have not been met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(b), (c). 2. New and material evidence has not been received and relevant official service department records have not been obtained with respect to the previously denied claim of entitlement to service connection for a chronic obstructive pulmonary disease disability, and the criteria for the petition to reopen the claim has not been met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(b), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1978 to November 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his November 2016 substantive appeal to the Board on VA Form 9, the Veteran requested a hearing before a Veterans Law Judge by live videoconference. The hearing was scheduled for July 8, 2021. However, the Veteran, through his attorney appointed in July 2020, requested to cancel the hearing in a July 6, 2021, letter. Therefore, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.702. In the July 2021 letter, the Veteran's attorney also requested an extension of 90 days through October 4, 2021. In October 2021, VA received another request for an extension of 90 days through January 6, 2022, of which the extension was specifically requested for issues of entitlement to service connection for posttraumatic stress disorder (PTSD)/military sexual trauma (MST) and depression. Those issues are currently on a separate appeal stream and not presently before the Board. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board notes that the RO requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. Thus, the Board finds that VA has satisfied the duty to assist. In this regard, the Board notes that the duty to assist is not a one way street and that if a veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Given that VA has requested records for which the Veteran submitted a proper release, further notice or assistance to the Veteran is not required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Under the legacy system, irrespective of whether the RO has reopened a finally adjudicated claim, the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). As such, the Board must first determine whether new and material evidence has been received to reopen the finally adjudicated decisions. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing 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(b). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Further, VA regulation provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c) (emphasis added). To be "relevant" means that the record addresses a dispositive issue and, therefore, affects the outcome of the case. Kisor v. Wilkie, 995 F.3d 1316, 1321 (2020). Factual Background and Analysis 1. New and material evidence has not been received to reopen and relevant official service department records have not been obtained to reconsider the claim for service connection for an asthma disability (also claimed as respiratory condition, to include hay fever) 2. New and material evidence has not been received to reopen and relevant official service department records have not been obtained to reconsider the claim for service connection for COPD The VA originally received the Veteran's claim for entitlement to service connection for asthma in August 2006. The claim was denied in a December 2006 rating decision. The RO found that while there was a clinical diagnosis, there was no evidence of record which documented treatment for or diagnosis of asthma during service, the September 1981 separation examination was negative for any chronic disabling respiratory condition, and there was no evidence of record providing a diagnosis within of year of discharge. The VA notified the Veteran of the denial of the claim in a December 2006 letter. The record reflects that the Veteran did not submit a Notice of Disagreement (NOD); however, new Houston VA medical center (VAMC) from September 2002 to March 2003 showing the Veteran's treatment for disabilities including tobacco use disorder and COPD material evidence was not received. The VA then received the Veteran's claim for bronchial problems in December 2006. In a February 2007 development letter to the Veteran, the VA notified the Veteran that evidence was requested that showed the condition existed from military service to present. The RO confirmed and continued the previous denial of service connection for asthma (claimed as bronchial problems) in a May 2007 rating decision. The VA notified the Veteran of the denial of the claim in a May 2007 letter. The record reflects that the Veteran did not submit a NOD nor was new and material evidence received prior to the expiration of the appeal period of the notification; as such, the May 2007 rating decision became final. 38 C.F.R. § 19.52. In May and November 2007, the VA received the Veteran's informal claim for entitlement to service connection for COPD. The claim was denied in a June 2008 rating decision. The RO found that while the Houston VAMC treatment records dated February 2006 to February 2008 revealed treatment for mild COPD, the service treatment records reviewed were completely negative for any complaints, findings, or treatment for the claimed condition of COPD or any related symptoms during military service and the September 1981 separation examination was negative for any evidence of a chronic condition of the respiratory system. The VA notified the Veteran of the denial of the claim in a June 2008 letter. The record reflects that the Veteran did not submit a NOD nor was new and material evidence received prior to the expiration of the appeal period of the notification, as such, the June 2008 rating decision became final. 38 C.F.R. § 19.52. The VA received the Veteran's informal claim for service connection for COPD in July 2009. In an August 2009, a VA letter was provided to the Veteran informing him that he was previously denied service connection for COPD in the June 2008 rating decision. The letter also informed the Veteran that the appeal period had expired and that in order for the claim to be reopened, new and material evidence was required. The RO denied the claim in an October 2009 rating decision. The RO noted that the evidence from the Houston VAMC submitted in connection with the current claim did not constitute new and material evidence because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The RO further noted that although the VA treatment records showed a diagnosis and treatments for COPD, the treatment records did not link the condition to military service. The VA notified the Veteran of the denial of the claim in an October 2009 rating decision. The record reflects that the Veteran did not submit a NOD nor was new and material evidence received prior to the expiration of the appeal period of the notification. 38 C.F.R. § 19.52. The VA then received the Veteran's informal claim for COPD in September 2013. In October 2013, the VA received the Veteran's informal claim for a respiratory condition including asthma and COPD. In April 2014, the VA provided a notification letter to the Veteran explaining that he was previously denied service connection for COPD in the June 2008 rating decision. The letter also informed the Veteran that the appeal period for that decision expired and in order for the claim to be reopened, new and material evidence was required. In an October 2014 VA notification letter, the VA informed the Veteran that he was previously denied service connection for asthma in the May 2007 rating decision. The letter also informed the Veteran that the appeal period for that decision expired and in order for the claim to be reopened, new and material evidence was required. The claims were denied a November 2014 rating decision. With respect to COPD, the RO found that the evidence from Houston and Palo Alto VAMC's submitted in connection with the claim did not constitute new and material evidence because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The RO noted that although VA treatment records showed a diagnosis and treatment for COPD, there was no evidence it is related to military service. With respect to the asthma claim, the RO found that there is a November 8, 1985, treatment record from Pal Alto VAMC, which stated that the Veteran has a past history of asthma as a child. The RO also noted that the Veteran's military entrance examination was negative for diagnosis of complaint of asthma and there was no treatment for asthma in service; therefore, service connection based on aggravation was denied and there was still no evidence that the asthma (also claimed as respiratory condition) was caused by military service. The VA notified the Veteran of the decision in a November 2014 letter. Records received since the final May 2007 and October 2009 rating decisions reflect military and service treatment records (STR's) associated with the claims file in October 2014, evidence submitted by the Veteran in October 2019, and VAMC treatment records. First, the above-mentioned military records and STR's were not previously apart of the claims file. However, after a review of these records, the Board finds that they are not relevant as they only demonstrate only the Veteran's service history, record of assignments, and discharge while the STR's reflect a June 1983 accessioning worksheet and personnel category cards. The RO previously denied the claims as there was no evidence of the disabilities being incurred in, caused by or aggravated by service. Here, the above-mentioned records do not cause the Board to consider that more evidence can be gleaned from the records submitted to reasonably substantiate the claim because these military records and STR's do not lead to a showing of more information than was of record in the STR's associated with the claims file in September 2006 which included the Veteran's reports of medical examinations. As these records do not addresses a dispositive issue relating to the claims for asthma or COPD, they do not affect the outcome of the case, and therefore, are not relevant. See Kisor, 995 F.3d at 1321. Accordingly, these records cannot form the basis for reconsideration. Evidence submitted by the Veteran is his statement that he traveled to Korea received in October 2019, service immunization record received in October 2019, a July 2009 VAMC active problems list and Houston VAMC treatment records printed on July 16, 2009, showing problems including COPD, tobacco use disorder and bronchitis, received in October 2019 and a September 2007 chest x-ray taken by private provider St. Luke's Episcopal Hospital received in October 2019. Here, while the Veteran's statement that he traveled to Korea is new, the Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7105(c), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this regard, the Board finds that all the records submitted by the Veteran with the statement were previously associated with the claims and are thus cumulative. Illustratively, the immunization record was a part of the claims file in September 2006 as a record in the Veteran's STR's. The July 2009 active problems list and September 2007 to March 2009 Houston VAMC treatment records were made part of the claims file in July 2009. Finally, the September 2007 chest x-ray was previously associated with the claims file in July 2009. Hence, these records are not new and material. 38 C.F.R. § 3.156. The Board also acknowledges the Veteran's statement in his NOD received in June 2015 that "[He] was told as a private that [his] asthma condition would not be made record of, and [h] did not know what to say at that time or now except why! [sic]." While this statement is new, the Board does not find it constitutes evidence; his childhood asthma condition was clearly noted on his entrance documents, and he has not claimed that he experienced or was treated for asthma during service. Thus, to the extent he is confused that he was told it would not be in his records, the Board is also confused and does not find this evidence material. As such, although the above-mentioned lay statements constitute new evidence, they are not material because they do not relate to an unestablished fact from the May 2007 and October 2009 rating decisions, specifically, proof of a causal relationship between the Veteran's active service and his asthma and COPD. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. New VAMC records from January 1984 to December 2019 have also been associated with the claims file. After a review of these records, the Board finds that these records demonstrate only that the Veteran's has clinical diagnoses and received treatment for asthma and COPD, which has already been established. As such, although the above-mentioned medical evidence constitutes as new evidence, because the medical evidence was not previously submitted and/or considered by VA, none of the pieces of evidence constitute as material evidence because they do not relate to an unestablished fact from the May 2007 and October 2009 rating decisions, and specifically, proof of a causal relationship between the Veteran's active service and his asthma and COPD. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. (These VAMC records include a September 2007 pulmonary function laboratory report associated with the claims file in November 2007, Houston VAMC treatment records from March 2006 to February 2008 associated with the claims file in February 2008, Palo Alto VAMC treatment records from January 1984 to January 1997 associated with the claims file in August 2014, Memphis VAMC treatment records from December 2014 to August 2016 associated with the claims file in September 2016, Memphis VAMC treatment records from October 2016 to March 2017 associated with the claims file in March 2017, Memphis VAMC treatment records from March 2017 to April 2017 associated with the claims file in April 2017, Memphis VAMC treatment records from October 2015 to April 2017 associated with the claims file in April 2017, Union Avenue VAMC treatment records from January 2016 to October 2017 associated with the claims file in November 2017, Memphis VAMC treatment records from November 2017 to February 2018 associated with the claims file in February 2018, Houston VAMC treatment records from September 2002 to November 2014 associated with the claims file in November 2018, Memphis VAMC treatment records from December 2014 to November 2018 associated with the claims file in November 2018, Union Avenue VAMC treatment records from December 2018 to January 2019 associated with the claims file in February 2019, Memphis VAMC treatment records from February 2019 to April 2019 associated with the claims file in April 2019, Union Avenue VAMC treatment records April 2019 to June 2019 associated with the claims file in June 2019, and Memphis VAMC treatment records from February 2019 to December 2019 associated with the claims file in January 2020). Thus, as no new and material evidence has been submitted, the claims to reopen service connection for asthma and COPD disabilities must be denied. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. Further, as no relevant official service department records have been obtained, the claims may also not be reconsidered. J. O'Connell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.