Ashford v. Brown

10 Vet. App. 120, 1997 U.S. Vet. App. LEXIS 154, 1997 WL 82733
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 27, 1997
DocketNo. 94-0384
StatusPublished
Cited by6 cases

This text of 10 Vet. App. 120 (Ashford v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashford v. Brown, 10 Vet. App. 120, 1997 U.S. Vet. App. LEXIS 154, 1997 WL 82733 (Cal. 1997).

Opinion

NEBEKER, Chief Judge:

The appellant, Leelan W. Ashford, appeals a May 6, 1994, Board of Veterans’ Appeals (Board or BVA) decision not to reopen his claim for service connection for a lung disorder as a residual of asbestos exposure. After consideration of the record on appeal and the briefs of the parties, the Court will affirm the Board’s decision for the following reasons.

I. FACTS

The appellant served on active duty in the U.S. Navy from August 1967 to December 1968. Record (R.) at 22, 24. No pertinent abnormalities are noted in his service medical records or on his discharge physical examination. R. at 26-42. In July 1975 he filed a claim seeking service connection for nerves, head injury residuals, arthritis, and a broken nose. R. at 17-20. He was awarded service connection for residuals of the nose injury, hypertension, and a laceration scar to his forehead, but those disabilities were rated at zero percent. R. at 59-60. In March 1976, Mr. Ashford was awarded non-service-connected pension. R. at 65-66. In January 1985, erroneously believing he was service connected for bronchitis, he submitted a Statement in Support of Claim requesting an increased evaluation for that condition. R. at 68. The next month, the Regional Office (RO) informed him that he was not service connected for bronchitis, but that if he wished to file a claim for that condition, he needed to submit medical evidence demonstrating that the condition had existed during his service, or from within one year of service discharge. R. at 71. The veteran submitted an insurance form completed by his employer which reflected that the veteran had missed one day of employment in May 1978 for a lung problem (R. at 85), and an October 1985 VAMC Amarillo hospital report (R. at 87). The hospital report revealed that Mr. Ash-ford had a bronchoscopy performed in response to complaints of a cough productive of white sputum for the past 15 years. Ibid. The report also indicates that he had been admitted in January 1985 with similar complaints, and that a bronchoscopy with washings was also done at that time. Ibid. The assessment was “[yjoung male with a long histo[r]y of cough associated with pulmonary opacities of as yet undetermined origin.” R. at 88. In November 1985 the RO denied the veteran’s claim for service connection for “lung condition, chronic bronchitis,” based on a lack of any evidence relating his condition to service. R. at 91.

In March 1986, Mr. Ashford’s treating physician submitted a statement noting that the veteran had “a history of abnormal chest x-ray showing pulmonary nodules,” and was unable to work “due to pneumoconiosis”. R. at 94. In May 1986, Mr. Ashford underwent a VA examination and was diagnosed with “chronic pneumonoconiosis with bronchitis and bronehospastie condition associated” and “[pjersistent bronchitis with severe cough.” R. at 107. The RO denied service connection for a “respiratory condition.” R. at 117. Later, the treating physician submitted another letter in which he opined that “due to his severe chronic lung disease, which is not going to improve, but get progressively worse, [Mr. Ashford] is unable to engage in any substantially gainful employment.” R. at 125. The RO confirmed its prior denial in October 1986, and Mr. Ashford did not appeal that decision. R. at 128,130.

In April 1990, the veteran requested that his claim for service connection for a lung condition be reopened, and he submitted this second statement from his treating physician: [122]*122“Due to his chronic lung disease, etiology uncertain, it is my opinion that Mr. Ashford is unable to do any type of work without becoming extremely short of breath.” R. at 146-47. That same month, the RO continued the “prior denial of service-connection for chronic obstructive pulmonary disease.” R. at 155. The veteran appealed. R. at 157. A Statement of the Case (SOC) was issued, and in his VA Form 1-9, Appeal to the Board of Veterans’ Appeals, he detailed his experiences with congestion and bronchitis while in service and immediately after service. R. at 160, 165-68.

In March 1991, the Board denied service connection because “[t]he July 1986 decision of the agency of original jurisdiction, which denied service connection for a lung disorder, became final, and a new factual basis [was] not presented to demonstrate that a lung disorder was incurred in or aggravated by service.” R. at 184. Mr. Ashford sought reconsideration, stating, “I believe this medical condition could possibl[y] be associated [with my] being on board [a Navy] ship. My ship had lots of asbestos.” R. at 186. Military records confirmed that “the veteran was stationed aboard a destroyer-tender during his military service and was most likely exposed to some asbestos fibers in the lining of pipes and boilers on board the ship.” R. at 261.

In the BVA decision dated January 1993, the appellant’s case was remanded for further development, specifically with direction that the RO obtain the pertinent medical records, and that the veteran be examined by a specialist in lung disorders to determine the nature of any lung disease found present. R. at 297. Upon examination in May 1993 pursuant to the BVA remand, the appellant was diagnosed with chronic bronchitis with possible bronchiectasis; “Rule out sarcoid or other granulomatosis; Asbestosis is an unlikely diagnosis.” R. at 320-21. In July 1993, following the medical examinations, the RO denied entitlement to service connection for a chronic lung condition secondary to asbestos exposure. R. at 331-33. In September 1993, Mr. Ashford expressed his continued disagreement with that decision, and requested that his case be presented to the chief medical director for an independent expert opinion. R. at 342-43.

On May 6, 1994, the Board issued the decision here on appeal, which concluded that no new and material evidence had been submitted to reopen Mr. Ashford’s claim. R. at 1-6. As to Mr. Ashford’s contentions regarding his asbestos exposure, the Board stated:

Even if he had such exposure, the additional evidence is negative for any residual disability____ Indeed, the most recent VA examiner stated that the presence of asbestosis was highly unlikely. Although he did diagnose possible bronchiectasis, that was many years after service, and there is no clinical evidence that bronchiectasis existed proximate to service.

R. at 5. The Board further concluded that special attention had been paid to the veteran’s claims of asbestos exposure, but that medical examination had failed to provide any evidence that his current lung disorder was related to such exposure, or to his military service. R. at 11.

II. ANALYSIS

A. New and Material Evidence

The determination as to whether evidence is “new and material” is a question of law which this Court reviews de novo. 38 U.S.C. § 7261(a)(1); Masors v. Derwinski, 2 Vet.App. 181, 185 (1992).

“New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin [v. Derwinski, 1 Vet.App. 171, 174 (1991) ] ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.

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Bluebook (online)
10 Vet. App. 120, 1997 U.S. Vet. App. LEXIS 154, 1997 WL 82733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashford-v-brown-cavc-1997.