Citation Nr: 1754866 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-44 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for basal cell carcinoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1953 to January 1957, from September 1990 to October 1990, and from December 1992 to August 1993. The Veteran also had periodic service in the United States Air Force Reserves between 1953 and 1993. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied reopening a claim of service connection for basal cell carcinoma. 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) (West 2012). FINDING OF FACT The April 2000 rating decision which denied reopening service connection for basal cell carcinoma is final; evidence received since that rating decision is new, but not material, and does not otherwise raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2000 rating decision denying reopening service connection for basal cell carcinoma is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 20.1103 (2017). 2. The criteria for reopening a claim of service connection for basal cell carcinoma have not been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, 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 evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Basal cell carcinoma of the left temple and right nasolabial fold In June 1994, the RO denied service connection for skin cancer. In doing so, the RO found that basal cell carcinoma was not incurred in or aggravated during active service. Evidence before the RO included the Veteran's medical history which revealed a Mohs excision of basal cell carcinoma of the right alar groove/nasolabial fold in 1978. The Veteran first manifested with basal cell carcinoma in 1979. A second occurrence, in 1990, took place while the Veteran was in Saudi Arabia during Desert Shield. He was sent to Balboa Naval Hospital where it was determined that the skin condition was not incurred in the "Line of Duty." A third occurrence, in 1992, took place while the Veteran was in Spain. It was determined that the basal cell carcinoma was the result of chronic actinic exposure and not due to exposure during active duty. The RO concluded that basal cell carcinomas of long duration existed prior to the 1990 and 1992 periods of active duty and that the record contained no evidence that the skin condition began during active duty for training or that the skin condition became aggravated during active service. The Veteran was notified of the denial in a letter dated June 22, 1994. He did not appeal the June 1994 rating decision. An April 2000 rating decision continued the denial of the Veteran's claim finding that his basal cell carcinoma was not incurred in or aggravated by his service. The RO determined that the newly submitted evidence was not new and material; and therefore, declined to reopen the Veteran's claim. As the Veteran did not appeal the decision or submit new and material evidence within a year of the decision, the decision is final. Evidence received since that decision includes the Veteran contention that he was often exposed to a significant amount of sunlight and fumes from gasoline during service. See August 2017 VA 9. He contends that some of his cancer was caused by exposure to sunlight and gasoline while on active duty during Operation Desert Shield. In addition, the Veteran submitted treatment records which indicate a current diagnosis of basal cell carcinoma and continued treatment for the condition. Finally, a July 15 skin examination also yielded a diagnosis of basal cell carcinoma. The private medical records indicate the Veteran had treatment for a head abrasion, cellulitis, and a new occurrence of basal cell carcinoma. Treatment records from Fairhaven Dermatology indicate proliferative actinic keratosis on the right central malar cheek which was confirmed by biopsy. See September 2017 Summaries of Inpatient Treatment. The Veteran's carcinoma was treated with liquid nitrogen to remove the lesion. Unfortunately, new and material evidence has not been received to reopen the Veteran's claim. The Veteran's contentions are essentially duplicative of those previously before decision-makers. Hence, they are not new. While the treatment records and examination record are new, they do not suggest that the basal cell carcinoma is etiologically related to the Veteran's active military service. They do not trigger the Secretary's duty to obtain an additional medical nexus opinion. ORDER The petition to reopen the previously denied claim for service connection for basal cell carcinoma is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs