Citation Nr: 1313607 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-07 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for brain mass, achronoid cyst, status-post brain surgery. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans (Gretna), Louisiana. FINDINGS OF FACT 1. In an unappealed August 1998 rating decision, the RO denied service connection for a brain mass, achronoid cyst, post operative. 2. Evidence added to the record since the August 1998 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a brain mass, achronoid cyst, post operative, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1998 rating decision, in which the RO denied entitlement to service connection for a brain mass, achronoid cyst, post operative, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. As new and material evidence has not been received, the criteria for reopening the claim of entitlement to service connection for a brain mass, achronoid cyst, post operative, have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of claims to reopen previously denied claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA must provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. In a September 2006 letter, the RO provided the Veteran with the required notice. It informed him that his claim had previously been denied because the claimed condition was not incurred in or aggravated by military service and therefore he must provide new and material evidence; evidence that related to this fact. It also provided him with notice as to the elements of the underlying claim of entitlement to service connection. It informed him of the kinds of evidence and information to submit and informed him of his and VA's respective duties in obtaining evidence. The Board finds that this notice letter satisfied VA's duty to notify. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. It is noted that VA's duty to provide a medical examination or obtain a medical opinion does not apply to a claim to reopen a finally adjudicated claim unless and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4)(iii). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the Veteran has submitted private treatment records and VA has associated with the claims file VA treatment records. His service treatment records and earlier post-service treatment records were associated with the claims file prior to when he filed his current claim, in January 2006, to reopen the claim that had that was the subject of a final denial in August 1998. In October 2012, the Board requested a relevant expert opinion from a Veterans Health Administration (VHA) physician and that opinion was added to the record in January 2013. Review of that opinion shows that the physician took into account the relevant history of the Veteran's claimed condition, provided a description consistent with the evidence, and provided a rationale supporting his conclusions. For these reasons the Board finds the opinion to be adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection - Whether the Claim May be Reopened The Veteran contends that service connection is warranted for disability due to brain, mass, achronoid cyst, post-operative. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA first received a claim of entitlement to service connection for disability due to a brain mass, achronoid cyst, asymmetric lateral ventricles, status-post brain surgery in August 1997. The RO denied that claim in an August 1997 rating decision. The basis of the denial was that the condition neither occurred in nor was caused by service. In September 1997, the RO notified him of the decision and included an enclosure that informed him of his procedural and appellate rights. No document added to the record after that notification expressed disagreement with the decision or an intent to appeal the decision to the Board. In January 1998, the Veteran submitted a statement requesting that the RO consider new information in support of his claim. He referred to in-service clinic visits for a deviated nasal septum and commented that the deviation was in the same general location of the achronoid cyst and it could be possible that the cyst was present at that time, but not diagnosed. The RO again denied the claim in an August 1998 rating decision. The basis for that denial was that although the Veteran had surgery for chronic sinusitis during service, there was no relationship between that surgery and the condition for which he was seeking service connection. In August 1998, the RO notified him of the decision and included an enclosure that informed him of his procedural and appellate rights. Once the RO denies a claim, an appeal to the Board may be initiated by the filing of a notice of disagreement. 38 U.S.C.A. § 7105(a) (West 2002). Except in the case of simultaneously contested claims, which this is not, the notice of disagreement shall be filed within one year from the date of mailing of the notice of the decision. 38 U.S.C.A. § 7105(b)(1) (West 2002). If no notice of disagreement is received within that time period, the decision becomes final and the claim will generally not thereafter be reopened or allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to the rule of not reopening a claim once a decision denying the claim has become final is that if new and material evidence is received, the claim shall be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The U.S. Court of Appeals for Veterans' Claims (Veterans Court) has explained that 38 C.F.R. § 3.156(a) must be read in conjunction with VA's duty to assist; i.e., the phrase "raises a reasonable possibility of substantiating the claim" in 38 C.F.R. § 3.156(a) "contemplates, . . . the likely entitlement to a nexus medical examination if the claim is reopened". Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). New and material evidence received within the appeal period of an unappealed RO decision denying a claim will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b)(2012). The Veterans Court has explained that "if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final." See King v. Shinseki, 23 Vet. App. 464, 466 (2010) (quoting from 38 C.F.R. § 3.156(b)); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (explaining that when new and material evidence is received during the appeal period of an unappealed RO decision and such evidence is not considered by VA as part of the original claim, then the failure to file a notice of disagreement does not necessarily mean that the decision is final). Following notification of the August 1998 decision, no evidence that mentioned his brain mass was received within one year. There was thus no new and material evidence received within the appeal period of the August 1998 rating decision. No document was received that mentioned the denial of his claim or an intent to appeal the decision. For these reasons, the August 1998 rating decision became final. From the discussion just provided, it is clear that the August 1997 decision also became final. In January 2006, the Board received the Veteran's application to reopen the previously denied claim. Thus, the threshold inquiry is whether new and material evidence has been added to the claims file since the August 1998 decision. The Board finds that it has not and therefore the claim may not be reopened. Now the Board turns to its explanation supporting that finding. Evidence that was not of record prior to the August 1998 decision, but that has since been added to the record includes records of treatment at Louisiana State University Medical Center Hospital (LSU Hospital) from November 10, 1996 to November 18, 1996, VA records after August 1998, the Veteran's statements, and the medical opinion received by the Board in January 2013 pursuant to its request in October 2012. The LSU Hospital records are not evidence that the Veteran's then present brain mass, achronoid cyst, post operative had onset during or was caused by his active service. The discharge summary explains the reason for hospitalization, in pertinent part, as follows: Patient in 1980, started having complications of bumping into doors and having a loss of balance and having a left lower extremity limp. Patient was evaluated by a physician and for the time that patient had bolus polyps in his sinuses. His lower extremity ______________ which was explanation of both the above. Patient's nasal surgery performed in 1990 with minimal relief. Patient still had developed ataxia toward developing some memory dysfunction at the earlier part of this year. Patient also developed depression, irritability. The summary also referred to the Veteran's posttraumatic stress disorder (PTSD), and referred to radiology studies in 1996 showing asymmetry of the ventricles. In a review of systems section of the discharge summary, it is stated that the review was unremarkable and then referred to "the central nervous system showing positive ataxia, polyps and memory loss and left extremity limp" and then refers to a gastrointestinal history. It refers to diagnostic surgery and placement of a bilateral ventriculoperitoneal shunt. A November 1996 operative report lists the preoperative diagnosis as obstructive hydrocephalus with suspected arachnoid cyst or intraventricular web at foramen of Monro and the post operative diagnosis was the same, as documented on an operative report. The discharge summary includes the statement that the Veteran's headaches had resolved and that his ataxia had decreased. The November 1996 operation report includes the following statement: This [ ] year old gentleman has a history of progressive memory deficits over the past two years which has been specifically worsening in the past six months. His wife also notes that he is having difficulty with ambulation of his left leg. He had undergone several CT scans and most recently MRI scan and was seen in evaluation at the VA Hospital Clinic where review of his most recent MRI scan as compared to films available from 1990, showed progression in size of the right lateral ventricle, specifically an area of concern suggestive of an arachnoid cyst in the region of the foramen of Monro on the right side. The LSU Hospital records are not evidence that he had symptoms during service or that the brain cyst existed during service. In this regard although the records referred to bumping into doors and having a loss of balance and having a left lower extremity limp in 1980 it also noted that this was attributed to something to do with his lower extremity. Although there is a blank line in the report where one would expect to find more information about the left lower extremity, the LSU Hospital records clearly note attribution of those 1980 symptoms to a cause other than a brain cyst. The operation report refers to onset of memory problems well after separation from active service. The Board has considered the language in the discharge summary "[p]atient still had developed ataxia toward developing some memory dysfunction at the earlier part of this year." But regardless of the word "still," the sentence read as a whole is one of symptoms, including ataxia and memory dysfunction, developing in the past one or two years, which was well after service. As to the report of depression and irritability, the summary also refers to the Veteran's PTSD and does not attribute the depression or irritability to a brain cyst either then or during service. Additionally, as to the reference to balance problems, memory loss, and concentration difficulty, the LSU Hospital records report such as a history without indication that the onset was during service or shortly after service. This history, although not in the LSU Hospital records, was already before the Board when it adjudicated the claim in 1997 and 1998 as noted in July 1996 VA treatment records documenting his report of these symptoms as increasing in the past year. In short, these records do not relate either to an event, disease, or injury involving a brain cyst during service or to a nexus between any condition that was present in 1997 or 1998 and the Veteran's active service. The records are not new and material evidence. VA treatment records since that time do not provide evidence that the Veteran had an event, injury, or disease involving a brain cyst during service and, by definition, therefore do not provide nexus evidence. For example VA CT and MRI studies document only that he had bilateral shunts in place, a fact known at the time of the last final denial. Neurology notes from June 2003 and May 2005, document follow-up for ventriculoperitoneal shunt but provide no evidence as to in-service onset or causation of a brain cyst or a nexus between his service and the brain cyst. There are references to neurological symptoms associated with a spine condition and a reference to bilateral hand tremors but no evidence that these are connected in any way to the shunt or the cyst. Indeed, the tremors are listed as essential tremors. It is noted that the Veteran's lower extremity neurological symptoms have been associated with his spine condition and service connection has been established for his spine condition. His tremors have been associated with Parkinson's disease; a condition for which service connection has also been established. An August 2006 neurology note states that the note was for follow-up and that the Veteran was doing fine. There are three assessments - normal pressure hydrocephalus (NPH) - status post ventriculoperitoneal shunt, minimal essential tremors, and restless legs. The reference to NPH in the same entry as status post shunt, establishes only what was already established when the RO denied the claim in 1998. There is a June 2009 Rapides General Hospital report of an MRI of the Veteran's brain. This states that he had upper extremity weakness and confusion following a laminectomy that month. The impression was that no acute changes were noted. The narrative portion does not relate to any of the unestablished facts in this case. It only shows what was known at the time of the earlier decisions, i.e. that he has ventriculoperitoneal shunt tubes in place. VA treatment notes document an assessment of a transient ischemic attack in November 2010. In February 2012 he was diagnosed with Parkinson's disease; a disability for which service connection has been established. A report of a February 2012 VA examination for Parkinson's disease includes findings of right upper extremity tremor other neurological impairment, and cognitive impairment. The grant of service connection was based on presumptive regulations with regard to in-service exposure to Agent Orange. None of these records just discussed show that the Veteran's brain cyst had onset or was caused by his active service or of a nexus between his service and his claimed disability. These records are not material evidence. In his December 2006 and February 2009 VA Form 9 the Veteran referred to the LSU Hospital records and asserted that those records are proof that he had a cyst in his brain in 1990 and grew between then and 1996. The Veteran's own opinion in this regard is not competent evidence. Although the Board is required to accept evidence as credible, unless it is incredible on its face, when determining whether the evidence is new and material, it is not required to accept incompetent evidence as competent. Indeed, once the Board determines that evidence is not competent, such evidence is not probative of any fact, including whether it relates to a previously unestablished fact necessary to substantiate a claim. Competency of evidence differs from credibility of evidence. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As to the competence of the evidence, the Veteran has not shown that he has expertise in medical matters. It is well known that the interpretation of radiology results requires medical expertise. Indeed, a physician specializing in radiology typically interprets such results. As such expertise is necessary to interpret radiology studies and the file does not contain any radiology report indicating that he had a cyst or abnormality involving his brain during service, his opinion that 1990 radiology studies showed a cyst in his brain is not competent evidence. In that Form 9, he stated "[i]f it [the cyst] was not there in 1990, how could they say that it showed progression in size." (emphasis added). This statement to which he refers to is in the LSU Hospital records and is a statement of a difference in size of an area of the right lateral ventricle between 1990 and 1996; it is not a statement that he had a cyst in 1990. The Veteran's interpretation of these words is not new and material evidence. He is not competent to provide an opinion that a difference in size of the right lateral ventricle when comparing 1990 and 1996 films is indicative that there was a cyst detected in 1990 or that the cyst that was eventually detected in 1996 was present or detectable during his active service. In that February 2009 Form 9, the Veteran also stated that "[y]ou can also find reference to confusion, restless, and lethargic, demonstrating difficulty with thinking and memory, disorientation to time, place and person, symtoms (sic) of a Brain Mass, achronoid cyst, asymmetric lateral ventricles, in My Military Medical records." It is acknowledged that January 1991 service treatment records note his report of depression, decreased concentration and memory (and that he was oriented times three) but these symptoms were attributed to an adjustment disorder with depressed mood and marital problems. He also reported lightheadedness, dizziness and a feeling of floating and derealization in June 1987 and was referred to the mental health clinic. As to these symptoms, or for that matter, even the symptoms that the Veteran incorrectly reports as listed in the service treatment records, his opinion that these are due to a brain cyst is not competent evidence. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Whether such symptoms are due to a brain cyst as opposed to some other cause, for example a psychiatric condition, requires medical expertise because it is a complex matter, one that is not determinable merely from personal observation, and one outside the realm of knowledge of a layperson. Hence, this statement is not competent evidence and as such cannot be the basis for finding that it is new and material evidence. Again, the Veteran is offering his own medical opinion as to what symptoms are indicative of a brain cyst; but attributing symptoms to one condition rather than another requires expertise in such complex situations. As to the Veteran's reference to in-service surgery, a November 1991 narrative summary documents that the Veteran underwent bilateral endoscopic sinus surgery with inferior turbinate reduction that month. There is no mention of neurologic symptoms or of a cyst in the brain. The surgery was in treatment for sinus symptoms and included drainage of a right maxillary cyst. For the reasons just stated, the Veteran's opinion related his maxillary cyst to a brain cyst is not competent evidence and therefore is not new and material evidence. In October 2012, the Board requested that a VA physician who specialized in neurology or neurosurgery provide a medical opinion. The Board provided a recitation of relevant facts and asked that the physician provide an opinion as to whether it is at least as likely as not that any current neurological symptoms and impairment is attributable to residuals of his neurosurgery in November 1996 and to clarify the diagnosis of any present neurological disability. It also asked that if the examiner so attributed any current symptoms or impairment, to provide an opinion as to whether any brain cyst had onset during his active service or was causally related to that service. Pursuant to that request, a VA neurologist provided a nexus opinion that was received by the Board in January 2013. The neurologist indicated that he had reviewed the Veteran's medical evidence and he provided a negative opinion as to whether it is at least as likely as not that any current neurological symptoms and impairment is attributable to residuals of the Veteran's neurosurgery in November 1996 to treat a brain cyst. The physician noted that the Veteran underwent an examination by a physician for compensation and pension purposes in June 1992. The neurologist described the June 1992 physician as having an extensive history before him, and that the completeness of the examination report and with the assurance that the Veteran provided a full account of medical issues occurring during his service, the neurologist could "conclude that there were no symptoms at the time of the 1992 examination or during the Veteran's service that could reasonably have been associated with a central neurological condition as was reportedly found later." (emphasis added). The neurologist explained that the only finding on that 1992 report that could be consistent with a central disorder was a comment about a hyperactive right biceps reflex. He explained that the subsequently treated ventricular cyst was on the right and thus not on the side that would have led to the right sided reflex change. He further explained that because the reflexes were not quantified it was not possible to say that the reported reflex finding had any clinical meaning. After providing this explanation, the neurologist concluded that it is highly unlikely that any symptoms related to the subsequently treated central disorder, which he defined as the ventricular cyst, occurred after the Veteran's discharge from service. The neurologist also explained that although he had not answered the first question in the affirmative, he wished to make it clear that it is highly unlikely that the cyst was related in any way to his military service or action seen during service. He explained that such cysts are most generally considered of congenital origin though they may not become clinically relevant until later in life. He explained that the cyst seems to have lain deep in the cerebral hemisphere, even in the ventricle, and thus even less likely to have arisen due to any trauma to the brain. It could be argued that the January 2013 opinion does "relate" to previously unestablished facts necessary to substantiate the Veteran's claim, but the opinion merely reinforces that none of the unestablished facts are established. Given the purpose of the statute and regulation regarding reopening claims, the Board does not read the word "relate" so narrowly or in such isolation from the rest of the regulatory language as to mean that evidence that merely reinforces that the unestablished facts remain unestablished falls within the meaning of new and material evidence when it comes to reopening a claim. The Board has reviewed the 1996 treatment notes that refer to the surgical treatment of the cyst and that his ataxia had decreased and his headaches had resolved. It, however, does not find this to contradict the neurologist's opinion, given his field of expertise. The opinion is also consistent with the evidence of record. As he noted, the 1992 examination was comprehensive and took into account all symptoms that the Veteran reported as having had during service and at the time of the examination. It is recognized that the examiner stated that such cysts are most generally considered of congenital origin. This statement must not be misinterpreted as evidence of the existence of the unestablished fact of an in-service event, injury or disease. This reference is not evidence of the unestablished fact of an in-service event, injury, or disease. Questions regarding congenital defects (not subject to service connection) as opposed to congenital diseases (potentially subject to service connection) are only relevant when the defect or disease manifested during service. Cf. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (explaining that the presumption of soundness applies only when a disease or injury not noted upon entry into service manifests in service). The Board need not discuss the difference between congenital defects and diseases. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Whether the Veteran's cyst was congenital or not and whether it fits into a classification of a disease or a defect are not relevant questions because the cyst did not manifest during his active service, as explained in the January 2013 opinion. The neurologist opinion was one that the cyst did not manifest nor was it incurred during service, as demonstrated by his statement that there were no symptoms of the condition during the Veteran's service or at the time of the 1992 examination. The opinion reinforces that the fact of an in-service event, injury, or injury is unestablished, just as in 1998. Given that the Board has already obtained the relevant opinion, and taking into account that no evidence of record meets the definition of new and material evidence, the Veterans Court's explanation in Shade regard to the interaction between the duty to assist and the language of 38 C.F.R. § 3.156(a) does not lead to the conclusion that the claim must be reopened. Neither the January 2013 opinion, nor any other evidence added to the record, demonstrate that the Veteran's cyst manifested during his active service, was caused by his active service (to include any sinus or rhinitis condition), or that any symptoms attributed to the claimed condition are related to his active service. As no evidence added to the record since the 1997 and 1998 final denials of service connection for the claimed condition is new and material, the criteria for reopening the claim are not met and the Board must deny the appeal. There is no reasonable doubt to be resolved as to this matter. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having not been received, the request to reopen the claim of entitlement to service connection for brain mass, achronoid cyst, status-post brain surgery is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs