Citation Nr: 18144069 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 15-44 243 DATE: October 23, 2018 ORDER Whether new and material evidence has been received to reopen a claim of service connection for mesothelioma is denied. FINDINGS OF FACT 1. In June 2012, the RO denied service connection for mesothelioma and the Veteran did not perfect an appeal following the issuance of a May 2013 Statement of the Case. 2. The evidence submitted since the RO’s June 2012 rating decision is cumulative and does not raise a reasonable possibility of substantiating the underlying claim for service connection for mesothelioma. CONCLUSIONS OF LAW 1. The June 2012 rating decision is final regarding the issue of service connection for mesothelioma. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has not been received, and the claim for service connection for mesothelioma may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. §3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1962 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Unfortunately, the Veteran died during the pendency of this appeal; the Appellant has been substituted into this appeal. Whether new and material evidence has been received to reopen a claim of service connection for mesothelioma The Veteran’s original claim of entitlement to service connection for mesothelioma was denied in June 2012 on the basis that there was no evidence of an in-service event, disease or injury. The Veteran filed a Notice of Disagreement but did not perfect the appeal following the issuance of a May 2013 Statement of the Case. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Since the June 2012 rating decision became final (following expiration of the time to file a substantive appeal to the May 2013 statement of the case), neither the Veteran during his lifetime nor the Appellant have not provided additional evidence that shows an in-service event, disease or injury. The Veteran and the Appellant have reasserted the contentions previously considered in the prior final rating decision No additional relevant evidence has been associated regarding an in-service element or the basis for asbestos exposure. After a careful and sympathetic review, the Board finds that the additional evidence of record is cumulative of the evidence of file at the time of the May 2013 Statement of the Case. At the time May 2013 Statement of the Case, the record contained the Veteran relevant service records and personnel records, and assertions regarding asbestos exposure. In summary, at the time of the May 2013 Statement of the Case, the AOJ weighed the medical opinion evidence of record, the VA opinion and the private physician letters and evidence of in-service and post-service asbestos exposure. Since the expiration of the time to perfect the May 2013 Statement of the Case (and thus, the underlying June 2012 rating decision became final), the Appellant has again asserted that the Veteran was exposed to asbestos and made general contentions that the VA examiner did not understand the Veteran’s in-service asbestos exposure. The Appellant did not provide a contention different than that previously of record regarding disagreement regarding the weighing of the medical evidence and consideration of the facts of asbestos exposure. The May 2013 Statement of the Case documents the concessions of asbestos exposure prior to, during, and after the Veteran’s service. The Board has carefully and sympathetically considered the additional evidence but does not find a basis for reopening the claim, to include when considering whether there is a basis to reopen when considering the duty to assist. As summarized above, the Appellant has essentially reasserted the contentions that were considered at the time of the May 2013 Statement of the Case; the AOJ in that Statement of the Case considered and weighed the medical evidence and relevant facts of service. After this sympathetic review of the record, the Board finds that the Appellant’s current contentions are cumulative of those previously of record. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for mesothelioma may not be reopened. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel