Citation Nr: 18145438 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-28 905 DATE: October 29, 2018 ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for residuals of hepatitis has not been received. FINDINGS OF FACT 1. A February 1972 rating decision denied reopening the previously denied claim of entitlement to service connection for residuals of hepatitis. The Veteran did not appeal that decision and it became final. 2. The evidence received since the February 1972 Board decision is not new and material as it does not relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for residuals of hepatitis. CONCLUSION OF LAW In the absence of new and material evidence, the criteria to reopen service connection for hepatitis have not been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1969 to September 1971. The Veteran was afforded a hearing before the undersigned in March 2017. A copy of the transcript is of record. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of hepatitis Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis upon which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). 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) (2017). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The February 1972 rating decision denied service connection for residuals of hepatitis. The RO found that the Veteran’s claimed hepatitis was not service connected because there was no evidence the Veteran’s hepatitis was chronic and continuous. After reviewing all evidence of record, the Board finds the Veteran has not submitted any competent evidence to establish his hepatitis has been chronic or continuous since the final February 1972 rating decision. Other additional evidence received since the February 1972 rating decision includes medical treatment records which record the Veteran’s past medical history included a five-month long hospitalization for hepatitis B. Although the medical history was recorded in January 2007, that does not establish a current diagnosis or history of a chronic or continuous disability. The Veteran has also submitted a lay statement which details how he contracted hepatitis in service. Notably, the Veteran does not assert that he currently has hepatitis or residuals of hepatitis only that he should be compensated for his acute and resolved hepatitis which occurred while he was in service. While the Veteran is competent to describe how he believes he contracted hepatitis while in service, (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific issue in this case, the diagnosis of a chronic and continuous disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, neither the Veteran nor his representative has submitted any objective medical evidence of any chronic or continuous residuals of hepatitis. Indeed, nothing submitted since the final February 1972 rating decision, including the Veteran’s March 2017 hearing testimony, indicates evidence of a continuous or chronic hepatitis disability that has not already been considered. While the Board finds that the Veteran is sincere in his belief that he developed disabilities due to service, and notes that he did contract acute hepatitis while in service, the record still does not contain evidence of a chronic or continuous hepatitis disability or residuals of hepatitis. All evidence received regarding the claim for service connection for hepatitis and residuals of hepatitis since the February 1972 Board decision is “new” in that it was not of record at the time of the respective decision. However, none of the new evidence is “material” because it does not provide medical evidence of a chronic or continuous disability. 38 C.F.R. § 3.159 (c)(1). Accordingly, the new evidence does not raise a reasonable possibility of substantiating the claim and thus is not sufficient to warrant a reopening of the Veteran’s claim. This additional evidence is, therefore, not both new and material, as contemplated by the pertinent law and regulations, and cannot serve as a basis to reopen the Veteran’s claims of service connection for hepatitis or residuals of hepatitis. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Based on the foregoing, the evidence received since the February 1972 Board decision is not material because it does not make a previously unestablished fact more likely to be established and it does not raise the possibility of reasonably substantiating the claim of hepatitis or residuals of hepatitis were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. As new and material evidence to reopen the finally disallowed claim of residuals of hepatitis has not been submitted, the benefit of the doubt doctrine is not for application and the claim is denied. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel