Citation Nr: 18143178 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 17-25 522 DATE: October 18, 2018 ORDER New and material evidence having not been received, the petition to reopen the claim of service connection for a dental condition is denied. New and material evidence having not been received, the petition to reopen the claim of service connection for deviated septum is denied. FINDINGS OF FACT 1. In a final decision issued in July 2008, the RO denied the Veteran’s claim of entitlement to service connection for a dental condition. 2. Evidence added to the record since the last final denial in July 2008 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a dental condition. 3. In a final decision issued in July 2008, the RO denied the Veteran’s petition to reopen a claim of entitlement to service connection for a deviated nasal septum. This claim had been previously denied in a January 1979 rating decision. 4. Evidence added to the record since the last final denial in July 2008 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a deviated nasal septum. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied the Veteran’s claim of entitlement to service connection for a dental condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a dental condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The July 2008 rating decision that denied the Veteran’s petition to reopen a claim of entitlement to service connection for a deviated nasal septum is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a deviated nasal septum. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1974 to December 1977. He also had service in the National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that service connection may be awarded for dental conditions for (1) compensation benefits and/or (2) outpatient dental treatment purposes. In the present case, the record reflects that the issue of entitlement to service connection for a dental disorder for outpatient dental treatment purposes has been raised. See Mays v. Brown, 5 Vet. App. 302 (1993) (any claim for service connection for a dental condition is also a claim for VA outpatient dental treatment). The July 2008 rating decision states that the RO would refer the issue to the VA medical facility closest to the Veteran. A July 18, 2008 deferred rating decision requests a copy of the Veteran’s claim be sent to the dental clinic. A July 29, 2008 letter to the Veteran requests addition information about his dental condition. The Veteran did not immediately respond to that request. However, he has since identified his dental claim as dealing with his #8 and #9 teeth. The claims file does not appear to include any decision on the dental claim from a VHA medical facility. As it is unclear whether any claim for outpatient dental treatment has yet been considered and/or referred to Veterans Health Administration (VHA), it is referred to the AOJ (which, in this case, is VHA) for appropriate action. Reopening the Claims of Service Connection The Veteran contends that he has current deviated septum and dental disabilities that are due to an accident in service. 1. New and material evidence for the claim of service connection for dental disability. 2. New and material evidence for the claim of service connection for deviated septum. Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156(a) (2017); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Regional Office (RO), in a rating decision dated in December 1978 and issued in January 1979, denying the Veteran’s claim of service connection for deviated nasal septum. The RO noted that the service records showed complaints of breathing difficulty as well as septal deviation and history of surgery for such. The decision discussed an x-ray report at the time of an October 1978 VA examination showing no gross evidence of sinus or nasal bone abnormality. The RO granted service connection for allergic rhinitis but found insufficient evidence to establish service connection for deviated septum as no trauma to the nose was shown in service. The RO notified the Veteran of the decision in a letter dated in January 1979. The letter informed the Veteran that he could appeal the decision by submitting a timely notice of disagreement. The Veteran did not submit a timely notice of disagreement as to the denial, nor was new and material evidence as to the issue received within the one-year appeal period following notice of the January 1979 rating decision. As such, the Veteran did not timely appeal the January 1979 rating decision’s denial of entitlement to service connection for a deviated nasal septum, and the January 1979 rating decision is final as to that issue. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. The Board also notes that additional service treatment records were added to the record after the issuance of the January 1979 rating decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the additional service treatment records that had been added since the January 1979 rating decision are from his period of National Guard service and hence were not in existence at the time of the January 1979 rating decision. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the January 1979 rating decision need not be reconsidered. The Veteran submitted a petition to reopen a claim for service connection for a deviated nasal septum in May 2008 as well as a new claim of service connection for dental disability. In a July 2008 rating decision, the RO denied the Veteran’s petition to reopen a claim for service connection for a deviated nasal septum as no trauma to the nose was noted during any period of active duty and explaining that the evidence submitted in support of the petition did not constitute new and material evidence sufficient to warrant reopening of the claim. The RO also determined that an unspecified dental condition is not considered a disabling condition for compensation purposes. Evidence at the time of the July 2008 rating decision included service treatment records, statements from the Veteran, VA treatment records, and private treatment records. Service treatment records showed a notation of atopic nasal obstruction and deformed septum in September 1977 and a November 1977 notation of splints removed, septum straight, healed well. During service in September and October 1975, the Veteran had root canals on number 8 and number 9 teeth that afterward were asymptomatic. An October 1978 VA examination noted a history of trauma to the face with fracture of the nasal bones and loss of two teeth. At the time of the examination, the Veteran was observed with allergic rhinitis, moderate nasal obstruction, and a slight deviated septum. However, x-ray reports “fail[ed] to reveal any gross evidence of sinus or nasal bone abnormality.” Records from the 1980s and 1990s continued to show treatment for sinus problems and reports of the in-service injury. In May 1994, Dr. CVV noted a deviation of the nasal septum to the right. VA treatment records from January and July 2008 show a straight septum. A March 2008 VA examination found no septal deviation. The Veteran did not submit a timely notice of disagreement as to the denial, nor was new and material evidence as to the issue received within the one-year appeal period following notice of the July 2008 rating decision. As such, the Veteran did not timely appeal the July 2008 rating decision’s denial of the petition to reopen a claim for service connection for a deviated nasal spectrum as well as entitlement to service connection for a dental condition, and the July 2008 rating decision is final as to that issue. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. Since the time of the July 2008 rating decision, VA has received additional statements from the Veteran, new treatment records, and new VA examinations. While the Veteran submitted statements identifying which teeth he was claiming in his dental disability, such evidence does not show a dental disability that could be subject to compensation under 38 C.F.R. § 4.150. Regarding his deviated septum claim, the Veteran’s statements are cumulative of the information he provided previously. New treatment records do not provide any evidence of current deviated septum or of a nexus to service. An October 2009 VA examination indicates no septal deviation. The evidence is either cumulative or not material to (CONTINUED ON NEXT PAGE) the unestablished element of nexus to service. Therefore, the claims for service connection for deviated septum and dental disability compensation cannot be reopened and the appeals must be denied. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.P. Armstrong