BVA Case 23-6490: Back

Slater-Blackwell appeals through counsel a September 6,2023,Board of Veterans'Appeals (Board)decision finding no new and material evidence sufficient to reopen previously denied claims for service connection for a cervical spine disability and total hysterectomy.

In October 2007, the RO found no new and material evidence sufficient to reopen the claim.

In November 2018, the RO found no new and material evidence sufficient to reopen the claims.

In the September 2023 decision on appeal,the Board found that the July 2005 rating decision denying service connection for hysterectomy based on the lack of linkage to service and the October 2007 rating decision finding no new and material evidence to reopen were final.

The Board noted the veteran's statements asserting a link between her hysterectomy and cervical spine disability and service but found her not competent as a lay person to provide such a medical opinion.

Because the Board found these lay statements not competent, the Board also found that the statements could not establish that hysterectomy or cervical spine disability was incurred during or caused by her period of active service and did not raise a reasonable possibility of substantiating the claims.

6 The Board noted that,although the veteran's December 2019 statement was not made on a VA Form 9 and her February 2020 VA Form 9 was not filed within one year of the November 2018 rating decision or 60 days of the October 2019 SOC,because the RO certified her appeal and the Board accepted and docketed the appeal,VA and the Board were estopped from pursuing untimeliness and the Board would review the merits.

Because the RO previously adjudicated entitlement to service connection for a cervical spine disability and hysterectomy in July 2005 and October 2007, the veteran must submit new and material evidence before the RO will consider the claims on the merits.