Citation Nr: 9833984 Decision Date: 11/18/98 Archive Date: 11/24/98 DOCKET NO. 93-26 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a lung condition, including asbestosis. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from December 1964 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for asbestosis. The appellant has since moved to the jurisdiction of the RO in Montgomery, Alabama. In June 1995, the Board remanded the claim relating to service connection for a lung condition for additional evidentiary development. As the requested development has been completed, the Board will now proceed to decide this case. In August 1998, the appellant submitted evidence directly to the Board, consisting of a personal statement, DA Form 19-24, a medical record from Manatee Memorial Hospital, a letter from Keith Ivey, M.S.W., C.R.C., dated in October 1988, and lay statements from G.R., R.V., R.R., and W.M. The appellant has not waived the RO’s consideration of this evidence. However, the case need not be remanded to the RO for consideration and the issuance of a supplemental statement of the case in accordance with 38 C.F.R. § 20.1304(c) (1998) for the following reasons. First, with the exception of one statement from R.V. and the letter from Mr. Ivey, the rest of the evidence submitted by the appellant were duplicates of evidence already associated with the file and considered by the RO. The appellant’s personal statement was also essentially duplicative of his prior contentions. Second, the letter from Mr. Ivey and the new lay statement from R.V. contained no information regarding a lung disorder and are therefore not pertinent to this claim. Accordingly, it is not necessary to remand the appellant’s claim to the RO for consideration of this additional evidence. In several of the appellant’s statements, he indicated his belief that his discharge from the military was incorrectly processed. He has been informed on more than one occasion by the RO that it is not within VA’s jurisdiction to address any of his claims regarding the nature of his discharge. He is again reminded that he must contact the Department of the Army with respect to these allegations. The issue of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is the subject of the remand herein. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he currently has a lung condition, including asbestosis, as a result of his military service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the appellant’s claim for service connection for a lung condition, including asbestosis. FINDINGS OF FACT 1. In a June 1973 rating decision, the RO denied service connection for a lung condition. The appellant was notified of that decision in June 1973, and he did not appeal. 2. In a May 1978 rating decision, the RO denied service connection for a lung condition, including bronchitis. The appellant was notified of that decision in June 1978, and he did not appeal. 3. The evidence received since May 1978 is not new and material and does not present a reasonable possibility that, when considered in conjunction with the evidence that had previously been considered, the outcome of the claim for service connection for a lung condition, including asbestosis, might be different. CONCLUSIONS OF LAW 1. The May 1978 RO rating decision wherein service connection for a lung condition was denied is final. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 3.160(d) (1998). 2. The evidence received subsequent to the May 1978 RO rating decision is not new and material and does not serve to reopen the appellant’s claim for service connection for a lung condition, including asbestosis. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In February 1973, the appellant filed a claim for service connection for a lung condition. In June 1973, his service medical records were forwarded to the RO by the National Personnel Records Center. The June 1973 rating decision referred to the service medical records and indicated that they showed complaints of difficulty breathing and constant cough and treatment for bronchitis with allergic rhinitis in May 1966. The service medical records were apparently removed from the claims file subsequent to the June 1973 rating decision; this may have occurred in January 1977 when the Department of the Army requested that the appellant’s service medical records be returned in connection with an Army Board Review. In September 1976, the appellant filed a claim for pension. He indicated that he had infected lungs in 1965 with wheezing and trouble breathing since that time. The RO requested his medical records from Kings County Hospital. In December 1976, that facility responded that they were unable to locate any records. In January 1977, the appellant underwent a VA examination. He complained of episodes of wheezing and some shortness of breath. Upon examination of his respiratory system, percussion note was normal and occasional scattered rhonchi were heard on expiration. It was noted that the appellant continued to smoke. X-rays of the chest were normal. Diagnoses included history of bronchial asthma. In September 1977, the appellant’s spouse submitted a statement from his mother. His mother indicated that his health was bad, and his wife had reported that she could not sleep with him because of his breathing. The RO obtained the appellant’s VA outpatient records covering the period February to September 1977. In February 1977, a chest x-ray was ordered with a provisional diagnosis of asthma. The chest x-ray showed no evidence of recent infiltrate, atelectasis, or pleural effusion. In September 1977, the appellant’s complaints included dyspnea. Examination of his chest showed it was clear, and a chest x- ray was ordered to rule out bronchitis. The results of the chest x-ray are not of record. In December 1977, the RO requested the appellant’s medical records from Manatee Memorial Hospital, Utah State Hospital, Manatee Guidance Center, Kaplan Aborn Hospital, and Sarasota Guidance Center. Kaplan Aborn Hospital responded that they were unable to locate any records for the appellant. Sarasota Guidance Center forwarded a summary of hospitalization, which contained no information regarding a lung disorder. Memorial Hospital of Sarasota, Florida, located at the address provided by the appellant for Manatee Memorial Hospital, indicated that they were unable to locate any records for the appellant. Treatment records from Manatee County Community Mental Health Center covering the period September 1976 to December 1977 showed no complaints, treatment, or diagnosis of a lung disorder. The RO received hospitalization records from Utah State Hospital covering the period February to March 1970. The appellant was hospitalized for an unrelated condition. He reported a history of being rejected for military service due to an asthmatic condition, and he related a medical history of asthma. Upon physical examination, his chest was clear. In February 1978, the RO received additional military records for the appellant. These records showed no complaints, treatment, or diagnosis of a lung disorder. The RO obtained the appellant’s VA outpatient records covering the period September 1977 to March 1978. In October 1977, it was noted that the appellant was preoccupied with shortness of breath, chest discomfort, and feelings that he might die. The RO obtained additional treatment records from Manatee County Community Mental Health Center covering the period October to November 1976; these records showed no complaints, treatment, or diagnosis of a lung disorder. From October 1977 to March 1978, the appellant was hospitalized at the VA Medical Center (VAMC) in Bay Pines, Florida, for an unrelated condition. It was noted on the hospital summary that a chest x-ray showed no evidence of active pleural- pulmonary disease. A rating decision of May 1978 denied service connection for a lung condition, including bronchitis. In July 1978, the appellant’s spouse submitted lay statements from R.R. and M.M. These statements contained no information regarding a lung disorder. In September 1978, the appellant requested that the RO obtain his medical treatment records from 1966 through 1969 from the Clerk of City Court in Salt Lake City, Utah; the Cacha County Courthouse in Logan, Utah; and the Department of Adult Probation and Parole in Salt Lake City. The RO requested these records. The Cacha County Courthouse indicated that they did not have any medical records in their custody. The Clerk of City Court indicated that they had no information like this in their files. The Department of Adult Probation and Parole indicated that the appellant’s records had been destroyed. In November 1980, the Department of the Army again requested the appellant’s medical records, and a handwritten notation on the letter indicated “send original SMRs” [service medical records]. From February to March 1983, the appellant was hospitalized at the VAMC in Tuskegee, Alabama, for an unrelated condition. His complaints included problems with breathing, and it was noted that physical examination revealed no evidence of active physical illnesses. In June 1984, the RO received a letter from Apalachee Community Mental Health Services dated in February 1983; this letter contained no information regarding a lung disorder. In February 1986 and February 1987, the RO requested the appellant’s medical records from Apalachee Community Mental Health Services; no response was received. The RO also requested his outpatient records from the VAMC in Tuskegee. The response indicated that there were no outpatient records from 1984, and the appellant was last seen in October 1983 for an ears, nose, and throat consultation. From October 1986 to March 1987, the appellant was hospitalized at the VAMC in Tuskegee for an unrelated condition. The hospital summary showed no complaints, treatment, or diagnosis of a lung disorder. In March 1987, the RO received a statement from the appellant’s mother, which contained no information regarding a lung disorder. In September 1987, the RO received a statement from S.M., which contained no information regarding a lung disorder. In February 1986, the RO obtained the appellant’s medical records from Tallahassee Memorial Regional Medical Center dated in January 1984. It was noted that the appellant smoked half a pack of cigarettes per day and had done so for 20 years. These records showed no complaints, treatment, or diagnosis of a lung disorder. The appellant submitted his medical records from Tallahassee Memorial Regional Medical Center covering the period April 1980 to April 1989. In December 1986, it was indicated that the appellant had a history of asthma. These records showed no complaints, treatment, or diagnosis of a lung disorder. The appellant submitted his medical records from Apalachee Community Mental Health Services covering the period September to November 1976 and from Manatee Memorial Hospital dated in October 1976. These records showed no complaints, treatment, or diagnosis of a lung disorder. The appellant submitted his medical records from Northwest Florida Mental Health Center dated in March 1979. He reported a past medical history of several hospitalizations, mainly for a lung problem. These records showed no complaints, treatment, or diagnosis of a lung disorder. In January and December 1983, the appellant underwent psychiatric evaluations by Dr. Chokhawala. These reports showed no complaints, treatment, or diagnosis of a lung disorder. In March 1990, the appellant submitted a letter from T.C. Sebastian, M.D., dated in May 1979. This letter contained no information regarding a lung disorder. In April 1991, the appellant filed a claim for service connection for a lung condition caused by asbestosis. He stated that he tore down buildings in the Army that had asbestos in them. He stated that he was treated several times for breathing problems at Fort Polk and Fort Sill from 1965 to 1966. In June 1991, the RO requested the appellant’s medical records from Dr. Lewis Brosky; no response was received. In January 1992, the RO received the appellant’s medical records from Fred H. Ross, M.D., covering the period September 1989 to January 1992. The appellant complained on a few occasions of cough. Examination of his lungs was normal in September 1989, October 1989, December 1989, February 1990, August 1990, December 1990, October 1991, November 1991, and December 1991. In July 1991, examination showed coarse breath sounds without rhonchi and scattered wheezing. In November 1991, examination showed coarse breath sounds without wheezing. Diagnoses included chronic sinusitis, bronchitis, and bronchitis with bronchospasms. In December 1991, the appellant submitted a statement in support of his claim. He indicated that he had received treatment from several medical professionals for skin, lung, eyes, etc. He stated that the only time he removed asbestos was during service. He indicated that his service medical records should reflect treatment for a breathing condition and rashes on his body. He stated that VA Medical Centers had also treated him for this condition. He indicated that his children had problems with allergies, their skin, and breathing. He stated that a VA doctor at Bay Pines told him in 1968 to file a claim for asbestos infections. He detailed his post-service employment with the United States Postal Service, transportation companies, restaurants, and a medical facility. He stated that his inservice duties involved removing paint and plaster from various buildings and that that was when his breathing problems began. There was also a great deal of blasting and dust. He stated that he was first treated for breathing problems during basic training at Fort Polk. In March 1992, the appellant was scheduled for a VA examination; he failed to report. He maintained that he did not receive notice of the scheduled examination. The RO requested his medical records from the VAMC in Lake City, Florida; they indicated that he had never been seen at that facility. In March 1992, the appellant was hospitalized at the VAMC in Tuskegee; the discharge summary showed no complaints, treatment, or diagnosis of a lung disorder. The RO obtained the appellant’s VA outpatient records from Tuskegee covering the period July to November 1991. In October 1991, he complained of shortness of breath and wheezing when he walked with onset in 1965. He indicated that he was not taking any medication for his breathing problems. He stated that he smoked about four cigarettes per day. Upon examination, his lungs were clear to auscultation. Diagnoses included acute sinusitis. It was noted that a chest x-ray in April 1991 was normal. In May 1992, the RO received the report of a pulmonary function test conducted by R. Grate, Jr., M.D., in May 1992. The interpretation indicated that there was mild restriction. In May 1992, the appellant submitted medical records with a cover letter indicating that the records were obtained from John L. Wilson, M.D. The record is dated in January 1988. It is mostly illegible, and it does not appear to contain any information regarding a lung disorder. The appellant submitted his medical records from Tallahassee Community Hospital covering the period November 1988 to February 1992. In February 1988, he reported no respiratory complaints and indicated tobacco use of half a pack per day. Examination showed his lungs were clear. In February 1989, his lungs were clear to auscultation. In November 1989, he complained of persistent wheezing and reported tobacco use of one pack per day. Examination showed his lungs were clear. In November 1991, he complained of throat pain and coughing. It was noted that he smoked half a pack of cigarettes per day. Examination showed his lungs were clear. In February 1992, he complained of throat pain and drainage at night. He reported a past medical history of asbestosis. Examination of his chest was clear. The appellant submitted his medical records from Capital Health Plan covering the period December 1982 to November 1984. In December 1982, he indicated that he had been bothered with seasonal allergies that caused nasal congestion. His chest was clear upon examination. He had a follow-up visit for sinusitis in January 1983, and his chest was again clear upon examination. The appellant submitted his medical records from Memorial Hospital in Sarasota, Florida, for a period of hospitalization in February 1979 for an unrelated condition. He reported a past history of multiple hospitalizations for his lungs and nerves over the last ten years. He was extremely vague as to what the bulk of these admissions were for, but he stated that there was something wrong with his lungs but no one had told him what it was. He complained of heaviness in the chest and a congested feeling. He also complained of minimal wheezing and occasional shortness of breath. It was indicated that as best could be determined, his lung problems were apparently the result of moderate asthma that occurred infrequently. Upon examination, his lungs were essentially clear to auscultation and percussion. A few expiratory wheezes could be heard in the anterior chest area. A chest x-ray was normal. No diagnosis of a lung disorder was rendered. The appellant submitted his medical records from Apalachee covering the period April 1980 to March 1988. Some of these records were duplicates of those already associated with the claims file. An undated record showed that the appellant related a past history of asthma. In April 1980, the appellant completed a medical questionnaire. He indicated that he had had breathing problems since 1964 manifested by shortness of breath. He reported receiving treatment for breathing problems in 1964 at Fort Polk. In June 1992, the appellant submitted an esophagogastroduodenoscopy report from Tallahassee Endoscopy Center dated in January 1992 and a letter from Terence N. Reisman, M.D., dated in June 1992. Neither of these documents showed any complaints, treatment, or diagnosis of a lung disorder. The appellant also submitted a lay statement by H.H., which indicated that H.H. met the appellant in November 1986 when they were both hospitalized at the VAMC in Tuskegee, and the appellant had difficulty breathing. The appellant told H.H. that he had this problem from the Army. In June and July 1992, the appellant was scheduled for VA examinations; he failed to report. He maintained that he did not receive notice of these examinations. In September 1992, he underwent a VA respiratory examination. He stated that during service he tore down old barracks that had steam pipes covered with asbestos. He also tore down walls and ceilings and was exposed to dust particles without the benefit of a mask. He stated that he did this kind of work on and off for about seven months out of his two years of service. He stated that he began to have lung trouble in 1964 before he left service, consisting of wheezing and coughing. He indicated that he was told at the VAMC in Bay Pines in 1976 that his symptoms were due to smoking. He stated that he quit smoking after this evaluation, but the symptoms persisted. His current major symptoms were wheezing and difficulty breathing, particularly when lying down to sleep at night. He stated that he had been given inhalers to use, but they did not help with his shortness of breath. He also complained of chest pains, dyspnea upon exertion, and non- productive cough. He stated that he was treated for his lung disease at the VAMC in Tuskegee in 1981 and 1991. When hospitalized in 1991, he stated that he had a bronchoscopy and CT scan of the lungs and was told that he had asbestosis. Examination showed that the shape of the appellant’s chest was normal. Expansion was equal but limited bilaterally. Percussion, palpation, and auscultation were normal. The appellant’s color was normal, and there was no evidence of cyanosis. He did not cough during the interview. A chest x- ray showed mild peribronchial thickening. A CT scan of the chest showed no evidence of asbestosis, but there was apparent thickening of the wall of the esophagus. Pulmonary function tests showed mild restrictive disease. Diagnoses included no evidence of asbestosis and mild restrictive disease, based on pulmonary function tests, exact cause undetermined. The examiner stated that a diagnosis of asbestosis could not be confirmed based on the current examination and CT scan of the lungs, but there was an abnormality of the esophagus that needed further evaluation. A rating decision of November 1992 denied service connection for asbestosis. In his substantive appeal, the appellant maintained that the September 1992 VA examination did not determine that he did or did not have asbestosis, and it did not prove that he did not have asbestosis. He stated that he was not given the benefit of the doubt. He stated that his service medical records showed he was treated for breathing problems. With his substantive appeal, the appellant submitted duplicate copies of a DA Form 19-24, a page from the September 1992 VA examination, an October 1991 VA outpatient record, and a medical record from Manatee. He submitted lay statements from R.V., G.R., W.K., and R.C.; none of these statements contained any information regarding a lung disorder. A statement from his mother indicated, in pertinent part, that he was in good physical health prior to service and that he had problems breathing after service. A statement from L.K. indicated, in pertinent part, that he did not have a breathing disorder prior to service. The appellant also submitted copies of service medical records covering the period May to June 1966. As noted above, his original service medical records had been removed from the claims file at the request of the Department of the Army. However, these service medical records were clearly duplicates of evidence that had been in the claims file at the time of the June 1973 and May 1978 rating decisions, since those rating decisions referred to his treatment in May 1966 for breathing problems with a diagnosis of bronchitis with allergic rhinitis. In June 1993, the appellant submitted a consultation report from Tallahassee Community Hospital dated in February 1993 regarding treatment for an allergic reaction. He did not complain of chest pain or shortness of breath. Examination showed his lungs were clear. In June 1993, the RO requested the appellant’s medical records from Tallahassee Community Hospital. No response was received. The RO obtained the appellant’s medical records from Dr. Ross covering the period September 1989 to May 1993. Some of these records were duplicates of evidence already associated with the claims file. In November 1991, the appellant complained of constant cough and chest soreness. Examination of his lungs showed coarse breath sounds of rhonchi with no wheezing. Diagnoses included bronchitis. In February 1992, he complained of cough and congestion. Examination of his lungs showed coarse breath sounds without rales or rhonchi. Diagnoses included bronchitis. In April 1992, he complained of cough, mucus blockage, and throat problems. Examination of his lungs showed coarse breath sounds without rhonchi. The diagnosis was bronchitis. In July 1992, he complained of cough, nasal congestion, and wheezing. Examination of his lungs was clear, and the examiner’s assessments included cough. A chest x-ray was normal. In February 1993, he complained of shortness of breath and wheezing. Examination of his lungs was clear, and diagnoses included chronic obstructive pulmonary disease. In April 1993, he complained that he had shortness of breath and his chest felt heavy. Examination of his lungs was clear. In May 1993, he complained of dry cough. Examination of his lungs was clear. In August 1993, the RO requested the appellant’s medical records from the VAMC in Tuskegee from October 1991 to the present. The only record received was the hospitalization summary from March 1992, which was duplicative of evidence already associated with the claims file. In November 1993, the appellant submitted lay statements from W.M. and J.M., which contained no information regarding a lung disorder. He also submitted a statement from D.B., who indicated that he was stationed with the appellant in 1964 and 1965, and they were detailed to remove plaster from pipes and walls on the Fort Polk base. Since October 1994, the appellant has submitted numerous statements. However, the bulk of these statements did not regard his claim for a lung condition, and any statements regarding this claim were duplicates of his contentions discussed above. In May 1995, the appellant submitted a lay statement from L.O., which contained no information regarding a lung disorder. In June 1995, the Board remanded this claim for additional evidentiary development. It was noted that prior rating decisions referred to the appellant’s service medical records, and those records were not associated with the claims file. It was also indicated that the appellant should be provided another VA examination. Since the Board’s remand, the appellant has submitted numerous statements. Again, the bulk of these statements did not regard his claim for a lung condition, and any statements regarding this claim were duplicates of his contentions discussed above. In a statement received in July 1995, he indicated that he had been seen by several pulmonary specialists at the VAMC and treated with antibiotics. None of these doctors could find the cause for his breathing disorder. In May 1996, the RO obtained the appellant’s service medical records from NPRC. The report of his entrance examination dated in November 1964 showed that clinical evaluation of his lungs was normal. When completing a dental questionnaire in January 1965, the appellant denied having any shortness of breath. As discussed above, in May 1966, he complained of chest pain, and it was noted that his breathing was subnormal. Less than one week later, he stated that he could hardly breathe and he had a constant cough. It was noted that he had trouble with asthma, but it was also noted that he had no previous history of asthma. Examination of his lungs showed occasional rales with no wheezing. The examiner’s impression was bronchitis with allergic rhinitis. Upon separation from service in July 1966, the appellant denied having or ever having chronic or frequent colds, sinusitis, asthma, shortness of breath, or chronic cough. He indicated that he had or had had pain or pressure in the chest. Clinical evaluation of his lungs and chest was normal. A chest x-ray was normal. With the appellant’s service medical records, NPRC also forwarded post-service medical records, presumably that the Department of the Army developed in connection with their review of the appellant’s discharge. Some of these records were duplicates of evidence already associated with the claims file, such as treatment records from Apalachee and records from VA hospitalizations from October 1977 to March 1978, February to March 1983, and October 1986 to March 1987. Treatment records from Manatee were also duplicates, and the new records from Manatee, consisting of laboratory results, nursing records, and physician’s orders, contained no information regarding a lung disorder. Hospitalization records dated in March 1962 by A.K. Martinolich, Jr., M.D., also contained no information regarding a lung disorder. A VA hospital summary for hospitalization from July to September 1980 at Tuskegee had not been obtained by the RO. The appellant complained of chest pain and difficulty swallowing. A chest x-ray was within normal limits. There was no treatment or diagnosis of a lung disorder. A VA hospital summary for hospitalization from March to May 1987 at Tuskegee had also not been obtained by the RO. This record showed no complaints, treatment, or diagnosis of a lung disorder. A chest x-ray was within normal limits. In December 1996, the appellant underwent a VA respiratory examination. He complained of scratching in the throat and non-productive cough of 20 years duration. He stated that he had dyspnea on exertion, and he could walk 100 feet before getting tired. He stated that ten years earlier he could play basketball. He denied hemoptysis, orthopnea, paroxysmal nocturnal dyspnea, chills, night sweats, and weight loss. He stated that he had tried tobacco in the 1960s, but he did not like it. He denied any occupational exposure to asbestos. Examination showed no pain to palpation of his chest. Percussion was normal, and his lungs were clear to auscultation. The diagnosis was no evidence of non- tuberculous disease by physical examination or chest radiograph; dyspnea by history, etiology undetermined. The VA examiner reviewed the appellant’s claims files. It was noted that chest x-rays done in February 1979, July 1992, February 1995, December 1995, and March 1996 were normal. Auscultation of the lungs has always been clear dating back to 1979. Pulmonary function tests conducted in October 1992 at the VAMC in Lake City showed mild restrictive changes only and no evidence of asbestosis. Therefore, based on review of the medical records and the physical examination done in 1996, the examiner concluded that no evidence of asbestos- related disability was found. As indicated above, the appellant submitted evidence to the Board in August 1998, consisting of a personal statement, DA Form 19-24, a medical record from Manatee Memorial Hospital, a letter from Keith Ivey, M.S.W., C.R.C., dated in October 1988, and lay statements from G.R., R.V., R.R., and W.M. Except for one statement from R.V. and the letter from Mr. Ivey, the rest of the evidence were duplicates of evidence already associated with the file. The appellant’s personal statement was also essentially duplicative of his prior contentions. The letter from Mr. Ivey and the new lay statement from R.V. contained no information regarding a lung disorder. II. Legal Analysis A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the appellant is notified of the decision. 38 C.F.R. § 3.104(a) (1998). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. The appellant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if a NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (1998). A rating decision of June 1973 denied entitlement to service connection for a lung condition, and a rating decision of May 1978 confirmed the prior denial, including service connection for bronchitis. The appellant is now presenting the theory that he is entitled to service connection for a lung condition as a result of inservice asbestos exposure. However, he is still filing the same claim as he did previously (i.e., a claim for service connection for a lung condition). The United States Court of Veterans Appeals (Court) has held that regardless of the nomenclature and varied etiology attributed to a disability, a lung condition, by any name, remains the same. Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Therefore, regardless of the diagnosis of any current lung conditions or the appellant’s contentions as to the etiology of those disorders, his current claim is subject to the rules and regulations regarding finality of a prior decision. The appellant was notified of the May 1978 rating decision in June 1978, and he did not appeal that decision within one year. Therefore, the May 1978 decision is final. 38 U.S.C.A. § 7105 (West 1991). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). The Court has held that, if there is new and material evidence to reopen a claim, there is a well-grounded claim. Gobber v. Derwinski, 2 Vet. App. 470 (1992). When presented with a claim to reopen a previously finally denied claim, the Department must perform a two-step analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must be determined whether the evidence submitted by the claimant is new and material. If it is, the new evidence must be reviewed in the context of the old to determine whether the prior disposition should be altered. Id. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1998) (emphasis added). VA is directed to consider the evidence that has been added to the record since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The evidence must be reviewed in light of the pertinent statutes and regulations. Wilkinson, 8 Vet. App. 263, 268 (1995). The Court has summarized the law on the first step of the “reopening” process as follows: Hence, in order to warrant reopening a previously and finally disallowed claim, the newly presented or secured evidence must be not cumulative of evidence of record at the time of the last prior final disallowance and must tend to prove the merits of the claim as to each essential element that was a specified basis for that last disallowance of the claim. Evans, 9 Vet. App. at 284. Although the RO denied entitlement to service connection for asbestosis without considering the preliminary issue of whether the appellant had submitted new and material evidence to reopen the claim, the Board has jurisdiction to consider the issue of whether new and material evidence has been submitted because that issue is part of the same “matter” of whether the appellant is entitled to service connection for a lung condition. Bernard v. Brown, 4 Vet. App. 384, 391 (1993) (interpreting the provision contained in 38 U.S.C.A. § 7104(a) that the Board has jurisdiction to decide “all questions in a matter” on appeal). When a claimant submits a claim for service connection, the question of whether there is new and material evidence to reopen the claim is implicated where there is a prior final decision regarding that claim. Id. at 392. Although these are two separate questions, they are components of a single claim for service connection. Id. Thus, the issue on appeal has been recharacterized on page one of this decision. See also Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (Board has a legal duty to consider the requirement of whether new and material evidence has been submitted regardless of the RO’s actions); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). Furthermore, it is unclear whether the Board considered the preliminary issue of whether new and material evidence had been submitted in 1995. However, a remand is not a final decision, and the Board must now consider this issue. When the Board addresses an issue that was not addressed by the RO, consideration must be given to whether the appellant will be prejudiced by the Board’s consideration of the issue in the first instance. See 38 U.S.C.A. §§ 5104, 5107(a), 7104(a), and 7105(d)(1) (West 1991); 38 C.F.R. §§ 3.103(a), 3.103(c)(1), 3.103(c)(2), 3.103(d), 19.9, 19.25, 19.29, and 19.131 (1998); see also VAOPGCPREC 16-92 (1992). Although the relevant statutes and regulations regarding new and material evidence were not included in the statement of the case or supplemental statements of the case, the appellant’s due process rights are not violated by this Board decision for the following reason. When the RO denied the appellant’s claim of entitlement to service connection for asbestosis in November 1992, it necessarily reviewed all of the evidence of record to reach that decision. Since the Board must review all of the evidence of record in order to determine whether new evidence has been presented and whether it is material to the underlying issue, the appellant is not prejudiced by the Board’s consideration of the preliminary issue of whether new and material evidence has been submitted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). With respect to the appellant’s asbestos-exposure contentions, there is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter M21-1). VA must analyze a claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford, 10 Vet. App. at 124-125 (the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO’s compliance with the Circular’s claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The RO sent the appellant a letter in November 1991 requesting these details, and the appellant provided this information in April 1992. In addition, the appellant was provided VA examinations in 1992 and 1996. The evidence received subsequent to May 1978 is presumed credible for the purposes of reopening the appellant’s claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Since the May 1978 rating decision, the following evidence has been received: (1) the appellant’s contentions; (2) lay statements from R.R., M.M., S.M., H.H., L.K., W.K., R.C., R.V., G.R., W.M., J.M., D.B., L.O., and the appellant’s mother; (3) VA hospital summaries for periods of hospitalization from February to March 1983, October 1986 to March 1987, and during March 1992; (4) treatment records from Apalachee Community Mental Health Services covering the periods September to November 1976 and April 1980 to March 1988; (5) treatment records from Tallahassee Memorial Regional Medical Center covering the period April 1980 to January 1989; (6) treatment records from Manatee Memorial Hospital dated in October 1976; (7) treatment records from Northwest Florida Mental Health Center dated in March 1979; (8) reports of psychiatric evaluations conducted by Dr. Chokhawala in January and December 1983; (9) a letter from T.C. Sebastian, M.D., dated in May 1979; (10) treatment records from Fred H. Ross, M.D., covering the period September 1989 to May 1993; (11) VA outpatient treatment records covering the period July to November 1991; (12) the report of a pulmonary function test conducted by R. Grate, Jr., M.D., in May 1992; (13) treatment records from John L. Wilson, M.D., dated in January 1988; (14) treatment records from Tallahassee Community Hospital covering the period November 1988 to February 1992 and dated in February 1993; (15) treatment records from Capital Health Plan covering the period December 1982 to November 1984; (16) hospitalization records from Memorial Hospital in Sarasota, Florida, dated in February 1979; (17) an esophagogastroduodenoscopy report from Tallahassee Endoscopy Center dated in January 1992; (18) a letter from Terence N. Reisman, M.D., dated in June 1992; (19) reports of VA examinations conducted in September 1992 and December 1996; (20) a letter from Keith Ivey, M.S.W., C.R.C., dated in October 1988; and (21) records from the National Personnel Records Center, including service medical records, VA hospitalization records, treatment records from Apalachee Community Mental Health Services, treatment records from Manatee Memorial Hospital, and Dr. Martinolich. The appellant’s contentions are not new. His current contention that he has a lung condition as a result of his military service is the same as his prior contention. Therefore, this evidence duplicates evidence associated with his claims file at the time of the May 1978 rating decision and is not new for purposes of reopening a claim. The appellant’s service medical records received in 1996 are not new. From the 1973 and 1978 rating decisions, it is clear that his service medical records were in the claims file. Only after the Department of the Army requested these records were they removed from the claims file. The records received in 1996 showed treatment for breathing problems and diagnosis of bronchitis in 1966, and this evidence was referenced in the prior rating decisions. Under pertinent regulations, where new and material evidence consists of a supplemental report from the service department received after the decision has become final, the decision will be reconsidered by the agency of original jurisdiction. 38 C.F.R. § 3.156(c) (1998) (emphasis added). In this case, reconsideration of the prior final decision is not mandated since the additional service medical records were not new; they were duplicate copies of evidence previously of record and considered by the RO, but which had been removed from the claims file. The rest of the evidence received since May 1978, as detailed above, is new in that it was not previously of record. It is necessary, therefore, to decide if this evidence is material. The May 1978 RO rating decision denied service connection for a lung condition as there was no evidence of record showing post-service findings or diagnosis of a chronic lung condition. It was also noted that the inservice treatment for bronchitis was for an acute and transitory condition, as there was currently no evidence of residuals. Therefore, in order to reopen the appellant’s claim, there must be new evidence showing that he currently has a lung condition that was either incurred or aggravated by his military service. See Colvin, 1 Vet. App. at 174 (material evidence is relevant to and probative of the issue at hand). The majority of the new evidence is not material to the issue of whether the appellant incurred a lung disorder during service. Most of the new medical evidence regards treatment for other conditions, such as psychiatric disabilities, without any reference whatsoever to a lung disorder. In addition, most of the lay statements contain no information regarding a lung disorder. Much of the new evidence shows the appellant’s frequent respiratory-related complaints, such as shortness of breath and wheezing. However, the majority of the medical records have identified no abnormal respiratory findings upon examination or chest x-ray. Some of the new evidence does show diagnoses of lung conditions, such as bronchitis and chronic obstructive pulmonary disease, have been rendered. However, the record is devoid of any medical evidence indicating a relationship between any of the current lung disorders and an inservice disease or injury. The lay statements submitted by the appellant suggest that he was in good physical condition prior to service, and he exhibited breathing difficulties after service. Statements were also made that the appellant stated that he incurred a lung disorder during service. However, these contentions are neither material nor competent evidence. Even assuming these statements to be true, there is no evidence that any of the persons submitting these statements possesses the requisite medical knowledge to render a probative opinion on a matter requiring medical expertise. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Furthermore, any current contentions that the appellant has a lung disorder as a result of his military service would have to be considered in the context of the rest of the evidence. His service medical records did show his complaints of breathing difficulty, as well as a diagnosis of bronchitis. However, the post-service medical evidence does not support a conclusion that he incurred a chronic lung disorder during service. Chest x-rays from 1977 to 1996 have consistently been normal, with the exception of the chest x-ray in 1992 that showed mild peribronchial thickening. A CT scan of the lungs was also normal. Despite the appellant’s repeated subjective complaints, medical professionals have been unable to identify any respiratory abnormalities. This means that any current allegation that he incurred a lung condition during service, considered in the context of all the evidence, cannot be said to require consideration in order to decide the merits of the claim. The appellant’s contentions regarding exposure to asbestos during service are not material evidence. Even accepting as true his statements that he participated in building demolition during service, the fact remains that there is no medical evidence showing asbestosis. The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). None of the appellant’s chest x-rays, nor the CT scan of the lungs, have shown any of these indicative changes. The mild peribronchial thickening shown on x-ray in 1992 is not one of the listed radiographic abnormalities indicative of asbestosis. As the VA examiner in 1996 concluded, there is no evidence of asbestos-related disability. The appellant is not competent to state that he has an asbestos-related disease, and his contentions alone are not enough to reopen his claim. Accordingly, the Board finds that the evidence received subsequent to May 1978 is not new and material and does not serve to reopen the appellant’s claim for service connection for a lung condition, including asbestosis. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1998). The appellant claims that he underwent testing at the VA Medical Center in Tuskegee in 1991 that showed asbestosis. There is no evidence in the records from Tuskegee that this is the case. It is possible that not all of the appellant’s VA treatment records from Tuskegee have been associated with the claims file, since the RO requested records from October 1991. In the circumstances of this case, it is not necessary to obtain these records, because the VA examiner in 1992 indicated that there was no evidence of asbestosis, and the prior diagnosis of asbestosis reported by the appellant could not be confirmed by current CT scan of the lungs. The VA examiner in 1996 reviewed all of the medical evidence of record, consisting of numerous chest x-rays, and concluded that there was absolutely no evidence of asbestos-related disability. Even if VA records from 1991 showed asbestos- related changes, as the appellant maintains, there is no indication in the record that these records would likely indicate that he has asbestosis as a result of his military service. In fact, he stated on another occasion that medical professionals have been unable to determine the etiology of his respiratory complaints. Therefore, there is no reasonable probability that these records would constitute new and material evidence sufficient to reopen his claim. See Marciniak v. Brown, 10 Vet. App. 198, 202 (1997). As noted above, these records would have to be considered in the context of the rest of the evidence, including the more current medical evidence expressly finding that the appellant does not have an asbestos-related disability. This means that any records in 1991, even if they did show evidence of asbestosis-related changes, considered in the context of all the evidence, especially the numerous normal chest x-rays and the normal CT scan of the lungs, cannot be said to present a reasonable possibility of changing the outcome of the 1978 rating decision. Accordingly, the Board concludes that a remand is not warranted in this case. The appellant contended in several statements that according to VA regulations, he should be given the benefit of the doubt and granted service connection for a lung condition. However, until the appellant meets his threshold burden of submitting new and material evidence in order to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER As new and material evidence has not been received to reopen a claim for service connection for a lung condition, including asbestosis, the claim is not reopened, and the appeal is denied. REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which found that a claim for service connection for a psychosis was not well grounded. A Board decision of April 1991 found that new and material evidence had not been presented to reopen a claim of entitlement to service connection for a psychiatric disorder. Accordingly, the issue on appeal has been recharacterized on page one of this decision. See also Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (Board has a legal duty to consider the requirement of whether new and material evidence has been submitted regardless of the RO’s actions); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). Additional due process is warranted prior to further disposition of this claim to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. In the appellant’s November 1996 substantive appeal as to this claim, he did not request a personal hearing. However, in October 1997, he submitted a duplicate VA Form 9, and he requested a personal hearing before a Member of the Board at the local RO. A hearing on appeal will be granted if an appellant expresses a desire to appear in person. 38 C.F.R. § 20.700(a) (1998). An appellant may request a hearing before the Board at a VA field facility (i.e., RO) when submitting the substantive appeal, or anytime thereafter. 38 C.F.R. § 20.703 (1998). Having filed his request for a personal hearing prior to certification of this appeal to the Board, he is entitled to such a hearing. This issue is not intertwined with the other issue on appeal, as to which the appellant has not requested a hearing before the Board, either in his February 1993 substantive appeal as to that claim or at any time thereafter. It appears that the appellant was scheduled for a hearing. In the Statement of Accredited Representation in Appealed Case dated July 2, 1998, the appellant’s representative indicated that their contentions would be expressed during a video conference hearing before a Member of the Board at the Montgomery RO. On a letter from the RO to the appellant, there is a handwritten note that the appellant did not report for a hearing on 7/17/98. However, there is no indication in the claims files that the appellant was notified of such a hearing. Inasmuch as it does not appear that the appellant was properly notified of a scheduled hearing before a Member of the Board, it is necessary to remand his claim so that a hearing may be scheduled. The claim is REMANDED for the following: Schedule the appellant for a hearing to be conducted before a Member of the Board at the RO. Notify him of the date, time, and place of such a hearing by letter mailed to his current address of record. This hearing is to be scheduled in accordance with applicable law. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant need take no action until he is so informed; however, he is free to submit additional evidence or argument to the RO on remand. Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to accord due process, and no inference should be drawn as to the final disposition of this claim. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (Historical and Statutory Notes) (West Supp. 1998). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). - 2 -