Citation Nr: 1318434 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 12-09 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence was received to reopen a claim for entitlement to service connection for seasonal asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1955 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A November 1956 rating decision denied entitlement to service connection for seasonal asthma. The Veteran was notified of the decision but did not appeal. 2. Evidence added to the record since the November 1956 rating decision does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence was not received and the claim for entitlement to service connection for seasonal asthma may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in February 2010. To successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms new and material have specific, technical meanings that are not commonly known to VA claimants. Because the requirements define particular types of evidence, when providing the notice required, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The notice letters provided adequately informed the Veteran of the evidence necessary to reopen his claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment records, Virtual VA electronic records, and the Veteran's statements and testimony in support of his claim. Further attempts to obtain additional evidence would be futile. VA has no duty to provide a medical examination when a veteran has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(iii) (2012). No new and material evidence was received in this case. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. New and Material Evidence Claim A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). When VA does not consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying rating decision does not become final. Young v. Shinseki, 22 Vet. App. 461 (2009). When statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Buie v. Shinseki, 24 Vet. App. 242 (2011). The credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim for entitlement to service connection for seasonal asthma was denied in a November 1956 rating decision. That decision was based upon a finding that the disorder existed prior to service and was not aggravated by service. The evidence of record at that time included a medical evaluation board report indicating seasonal asthma that existed prior to service and was aggravated during service, but also included a subsequent physical evaluation board determination that the disorder existed prior to service and was not permanently aggravated by military duty. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence added to the record since the final rating decisions includes statements and testimony from the Veteran reiterating his service connection claim for seasonal asthma. He testified that he had respiratory and seasonal allergy problems for many years prior to service, that those problems were worse while he was in service, and that after service his symptoms had been about the same as they had been before service. He provided duplicate copies of his service treatment records in support of his claim. VA treatment records include diagnoses of dyspnea and show treatment with a continuous positive airway pressure (CPAP) device, without opinions as to etiology. Treatment records also show that in January 2012 the Veteran complained of experiencing bronchitis every few years, but that he had no other changes in breathing. Based upon a comprehensive review, the Board finds the evidence added to the record since the last final rating decision does not raise a reasonable possibility of substantiating the claim. The evidence obtained is essentially cumulative of the evidence previously considered and there is no indication that the newly obtained evidence could, if the claim were reopened, reasonably result in substantiation of the claim. There is no new evidence indicating that a respiratory disability was incurred or permanently aggravated as a result of active service. Therefore, the claim for entitlement to service connection may not be reopened. ORDER New and material evidence was not received to reopen a claim for entitlement to service connection for seasonal asthma; the appeal is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs