Citation Nr: 0006071 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-10 178A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a chronic respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from September 1951 to April 1952, November 1956 to May 1960 and from November 1961 to November 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service connection for a respiratory disorder was denied by a Board decision of July 1983. It was held that the appellant had acute respiratory disorder in service and that the first evidence of a chronic respiratory disorder was many years after service, with no relationship thereto. 2. Service connection for the appellant's respiratory disorder was denied by the Board in December 1994, on the basis that new and material evidence had not been submitted to reopen the claim. This is the last final decision on any basis. 3. The evidence associated with the claims file since the 1994 Board decision is not so significant that it must be considered in order to fairly decide whether the appellant is entitled to service connection for a respiratory disorder. CONCLUSIONS OF LAW 1. The Board's 1994 decision denying service connection for a respiratory disorder is final. 38 U.S.C.A. §§ 5104, 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence has not been submitted to reopen the previously denied claim of entitlement to service connection for a respiratory disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), (c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the appellant has submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for a respiratory disorder. The Board denied the appellant's claim in July 1983 on the basis that the record failed to establish that in-service respiratory complaints had residuals which persisted into the present. At that time, the evidence of record included service medical records; an October 1956 report of medical history; private medical records dating from the 1970s; an April 1979 VA examination, diagnosing the appellant with severe chronic obstructive pulmonary disease; letters from H. J. Presutti, M.D., reporting that he had treated the appellant for severe chronic obstructive lung disease since 1980; lay statements concerning the appellant's long-term respiratory complaints; an October 1968 statement from T. H. Pierce, M.D.; and a December 1992 examination report reflecting a diagnosis of respiratory insufficiency. It was noted that the appellant had acute respiratory symptoms in service which resolved. It is noted that after the initial denial of July 1983, the Board declined to reopen the claim in February 1986, August 1988, and December 1994. The December 1994 decision was the last final denial on any basis. When the Board denies a claim, the denial becomes final unless the Chairman determines that reconsideration is warranted, or if another exception to finality is applicable. 38 U.S.C.A. §§ 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). In the present case, the appellant did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). Accordingly, the Board's 1994 decision is final. A final decision may not be reopened and readjudicated by the VA, except on the basis of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide the merits of the claim fairly. 38 C.F.R. § 3.156(a) (1999). A three-pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1999). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Second, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and third, a determination must be made as to whether the evidence "is so significant that it must be considered in order to decide fairly the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, 155 F.3d at 1359. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). With the above-cited facts for consideration, the Board will not reopen the claim. When read together with the appellant's contentions on appeal, the Board concludes that the new evidence submitted or associated with the record since the August 1988 decision is not so significant that it must be considered in order to decide the merits of the claim fairly. The June 1957 treatment record submitted by the appellant simply indicates that the appellant had bronchitis, sinusitis and allergies in August 1959 and January 1963, and was of record at the time of the 1994 Board decision. The April and October 1996 letters from T. H. Pierce, M.D. virtually repeat the substance of his October 1968 letter, which was of record when the Board considered this case in 1988. Specifically, Dr. Pierce indicated that the appellant had received treatment since September 1954 for sinusitis, allergies, various upper respiratory infections and asthma, and that since 1962 the appellant has been diagnosed with chronic obstructive pulmonary disease. As the Board determined in 1988, Dr. Pierce's statement shows isolated episodes of respiratory disorders over a span of years, but does not demonstrate the continuity and persistence of symptoms necessary to sustain a claim of service connection. The April 1996 letter from P. E. Reed, M.D. indicates that Dr. Reed treated the appellant from 1972 to 1992 for chronic lung disease, and states that Dr. Pierce has these records. The December 1997 letter from Dr. Reed simply states that the appellant "has been treated and followed by me for many years" and that he had a "guarded diagnosis of early COPD and Emphysema." Here again, this evidence does not establish continuity of symptoms following service sufficient to establish service connection, nor does this evidence relate the appellant's respiratory problems to military service. Thus, all of the evidence submitted since the 1988 decision is essentially cumulative of evidence previously before the Board. Accordingly, it provides no basis to reopen this claim. With respect to the above, the Board finds that the appellant's pleadings and statements essentially reiterate his previously considered contentions with respect to the claimed disability, and as such are not considered to be new. See Reid v. Derwinski, 2 Vet. App. 312 (1992). To the extent that the appellant contends that he has a disability that was incurred in service, such statements, being in effect lay speculation on medical issues involving the presence or etiology of a disability, are not probative to this claim and, therefore, are deemed to be not material. See Pollard v. Brown, 6 Vet. App. 11 (1993) (pursuant to Espiritu v. Derwinski, 2 Vet. App. 492 (1992), lay testimony attempting to diagnose frostbite or arthritis in service held not to be competent evidence for such purpose, and thus material); see also, Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). Accordingly, the Board concludes that the appellant has not submitted evidence which is new and material such as to form the basis to reopen and review the previously denied claim seeking entitlement to service connection for a respiratory disorder. VA is obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of the kind of evidence needed to reopen a previously denied claim. See Graves v. Brown, 8 Vet. App. 522 (1996). However, this obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995), which depends further upon VA having notice that relevant evidence may exist or could be obtained. See also Franzen v. Brown, 9 Vet. App. 235 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration). However, in this case, there is nothing in the record that suggests the existence of available evidence that might provide a basis to reopen the aforementioned claim. Thus, as the Secretary's obligation under section 5103(a) has been complied with, to the extent possible, further development by VA is not required or indicated at this time. (CONTINUED ON NEXT PAGE) ORDER New and material evidence sufficient to reopen the claim for service connection for a respiratory disorder not having been submitted, the benefits on appeal remain denied. MICHAEL D. LYON Member, Board of Veterans' Appeals