Citation Nr: 18143187 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-16 930 DATE: October 18, 2018 ORDER New and material evidence with respect to the claim for service connection for sinusitis has not been received, and reopening the claim is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. In a June 1979 decision, the Board denied service connection for sinusitis. 2. Evidence received since the June 1979 Board decision is either redundant or was previously of record, or does not relate to an unestablished fact necessary to substantiate the claim; such evidence does not raise a reasonable possibility of substantiating the claim. 3. The Veteran is not service-connected for any disabilities upon which a claim for a TDIU may be based. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for sinusitis have not been met. 38 U.S.C. §§ 5108, 7103(a) (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1953 to April 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 1. New and material evidence with respect to the claim for service connection for sinusitis Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 3.156 (b). 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 U.S.C. § 3.156 (a) (2017). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Legal Criteria: Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s claim for service connection for sinusitis was originally denied in a June 1979 Board decision on the basis that there was no evidence showing the Veteran’s sinusitis was incurred in or caused by service. The June 1979 Board decision was final when it was issued. 38 U.S.C. § 7103(a). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a request to reopen his claim in October 2010. The Board notes the Veteran’s service treatment records (STRs) are presumed destroyed in the 1973 fire at the National archives and Record Administration. However, the Veteran’s April 1956 separation examination does not show a diagnosis related to his sinuses. The evidence of received since the prior final denial includes medical treatment records after 2010. Such evidence is new as it was not previously of record. Moreover, such evidence must be presumed credible for purposes of new and material evidence analysis. However, none of the evidence suggests that sinusitis had its onset during service or manifested to a compensable degree within one year of discharge from the period of service. As such, this claim must be denied.   2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). The Veteran is not currently service-connected for any disabilities. Therefore, there is no legal basis to consider a TDIU. See 38 C.F.R. § 4.16. As such, the claim for a TDIU is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel