Citation Nr: 1754833 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 15-37 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for depression. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from August 1961 to September 1961. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In the June 2006 rating decision, the RO denied the Veteran's claim of service connection for asthma; he did not perfect a timely appeal or submit additional evidence within one year thereof. 2. The evidence added to the file subsequent to the June 2006 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for asthma. 3. In the November 1990 rating decision, the RO denied the Veteran's claim of service connection for depression; he did not perfect a timely appeal or submit additional evidence within one year thereof. 4. The evidence added to the file subsequent to the November 1990 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for depression. CONCLUSIONS OF LAW 1. No new and material evidence has been submitted to reopen the claim of service connection for asthma. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. No new and material evidence has been submitted to reopen the claim of service connection for depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence - In General The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 C.F.R. § 3.156(a). The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. Asthma The RO previously denied service connection for asthma in September 1968, finding that there was clear and unmistakable evidence that the Veteran's asthma existed prior to service and was not aggravated beyond the normal progress of the disease during the Veteran's active service. The Veteran did not appeal this decision or submit evidence within one year of the decision, and therefore it became final. The Veteran filed an application to reopen this claim in March 2006, which was denied by the RO in June 2006 because no new and material evidence had been submitted. The Veteran did not appeal this decision, and although he submitted new evidence within one year of the decision, it was not material as it did not pertain to his asthma disability. Therefore, the June 2006 rating decision became final. New evidence was received subsequent to the June 2006 rating decision in the form of private and VA treatment records. These records show that the Veteran was undergoing treatment for asthma. These records are cumulative and redundant of the medical records already considered by the RO. They only show that the Veteran still has a currently diagnosed disorder of asthma. They do not in any way relate the Veteran's asthma to any incident during his military service or show that the Veteran's preexisting asthma was aggravated by his active military service. The Board finds that these additional treatment records do not constitute new and material evidence. The application to reopen the Veteran's claim for service connection for asthma is denied. Depression The RO previously denied service connection for depression in November 1990, finding that there was no evidence this condition was incurred in or caused by active duty service. The Veteran did not appeal this decision or submit evidence within one year of the decision, and therefore it became final. New evidence was received subsequent to the November 1990 rating decision in the form of private and VA treatment records. These records show that the Veteran was undergoing treatment for depression. These records are cumulative and redundant of the medical records already considered by the RO. They only show that the Veteran still has a currently diagnosed disorder of depression. They do not in any way relate the Veteran's depression to any incident during his military service. The Board finds that these additional private treatment records do not constitute new and material evidence. The application to reopen the Veteran's claim for service connection for depression is denied. ORDER The application to reopen the claim of entitlement to service connection for asthma is denied. The application to reopen the claim of entitlement to service connection for depression is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs