Citation Nr: 1742016 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 16-02 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been presented to reopen the claim for service connection for cold weather injury residuals affecting all joints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2017, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In May 2015, the Board denied the Veteran's claim to reopen service connection for cold weather injury residuals affecting all joints and it was not appealed. 2. Evidence received since May 2015 is cumulative and redundant and does not does not relate to an unestablished fact necessary to substantiate the claim of service connection. CONCLUSIONS OF LAW 1. The May 2015 Board decision that denied the application to reopen the claim for service connection for cold weather injury residuals affecting all joints is final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 20.1100, 20.1105 (2016). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for cold weather injury residuals affecting all joints. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the instant matter, the Veteran seeks to reopen a claim of service connection for cold weather injury residuals affecting all joints. A September 2007 rating decision denied service connection on the basis that there was no evidence of an in-service injury or event and that no nexus existed between the claimed current disability and in-service injury or event. The Veteran did not appeal that decision nor was new and material evidence received within one year of that rating decision. Thus, it became final. 9/17/2007 Rating Decision-Narrative. In May 2015, the Board denied the Veteran's petition to reopen the service connection issue for cold weather residuals, affecting all joints. The Board considered the evidence submitted and found that it was new, but not material. The Board found that the new evidence did not address the unproven element of an in-service cold weather injury in the Veteran's case. The March 2015 submission of evidence included a July 2003 article on military desegregation in Korea, an excerpt from the Veterans Administration Report on Cold Injury Diagnosis and Management of Long Term Sequelae, historical weather data, an article by Dr. Jerrod Johnson, and a photo of the Veteran's feet. The Veteran's written statements as well as his statements from a hearing in March 2015 were also considered. 3/18/2015 Correspondence; 5/21/2015 BVA Decision. Since the last final decision, no new and material evidence pertaining to the claim has been received. In July 2015 and July 2017, the Veteran submitted the same information as the evidence submitted in March 2015 and therefore it is redundant. The Veteran's written statements and those made at his July 2017 hearing are cumulative of the evidence already of record. 7/14/2015 Correspondence; 7/25/2017 Correspondence. Current medical records have also been submitted. While they are new, they are not material as they do not relate to an unproven element of the Veteran's previously denied claim. The Veteran's written statements and those made at his July 2017 hearing are also cumulative of the evidence already of record. The Board acknowledges and appreciates the articles submitted by the Veteran, to include those regarding the Korean War and conscription. However, the Board finds that the Veteran's additional evidence does not constitute new and material evidence as that evidence is cumulative, redundant, and it does not speak to an unestablished element of the claim. Similarly, the Board acknowledges the submission from Dr. J.J., but notes it is general and does not tie into the Veteran to trigger VA's duty to assist. In sum, the Board finds that this it is not material as it does not create a reasonable possibility of substantiating the claim evidence with consideration of the duty to assist, to include in conjunction with evidence already of record. Accordingly, the Board finds that the low threshold for reopening the claim for service connection has not been met. Shade, 24 Vet. App. at 117, 121. New and material evidence has not been received to reopen such claim and the Veteran's petition to reopen is denied. ORDER The petition to reopen the claim of entitlement to service connection for cold weather injury residuals affecting all joints is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs