Citation Nr: 1754856 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 16-52 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for melanoma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1958 to November 1970, including service in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In his October 2016 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge in Washington, D.C. In January 2017 correspondence, the Veteran withdrew his request for a hearing. 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. An unappealed July 2006 rating decision denied service connection melanoma, based on lack of evidence between the Veteran's melanoma and service. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final July 2006 rating decisions is cumulative and redundant of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for melanoma. CONCLUSIONS OF LAW 1. The July 2006 rating decision denying the claim for service connection for melanoma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of service connection for melanoma. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Historically, an unappealed July 2006 rating decision denied the Veteran's claim of service connection for melanoma, based on findings that there was no evidence of a nexus between his current melanoma and his service (including herbicide exposure). New and material evidence was not associated with the record within the one-year appeal period of the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the July 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Here, the basis of the prior final denial of the claim was lack of a nexus between the Veteran's melanoma and service. The evidence considered at the time of the July 2006 rating decision included the Veteran's service treatment records, post-service private and VA treatment records. His service treatment records were negative for any findings, treatment, or diagnoses relating to a melanoma. Private treatment records and the Veteran's statements indicated the Veteran underwent removal of a melanoma on his back in approximately 1988. In 2003, the Veteran underwent excision of a melanoma of the left upper cheek and lateral nose area. Notably, the RO had conceded the Veteran was stationed in Vietnam and suffered herbicide exposure. See, e.g., June 2000 rating decision (granting service connection for posttraumatic stress disorder based on his combat in Vietnam); see also July 2006 rating decision (listing the presumptive conditions due to herbicide exposure in Vietnam, which do not include melanoma). Evidence added to the record since the July 2006 rating decision includes VA and private treatment records showing various melanomas, including of the left neck. See, e.g., October 2013 private treatment record (describing the treatment for the melanoma of the left neck). The Veteran and his representative continue to contend that his melanoma is secondary to his herbicide exposure in Vietnam. See September 2017 informal hearing presentation. In this case, the Board finds that it is not proper to reopen the Veteran's claim, as the additional evidence does not show that the Veteran's melanoma is related to his military service, and is cumulative of evidence already of record at the time of the July 2006 rating decision. To the extent the Veteran attributes his melanoma to service, his statements are redundant of those considered in the prior final rating decision and cannot serve to reopen the claim. Accordingly, as the evidence received since the final denial of the claim for service connection for melanoma in July 2006 is not new and material, the claim is not reopened. ORDER New and material evidence has not been received to reopen the claim of service connection for melanoma. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs