Citation Nr: 18148655 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-42 359 DATE: November 8, 2018 ORDER As new and material evidence to reopen the claim for service connection for hepatitis has not been received, the claim to reopen is denied. FINDINGS OF FACT 1. The Veteran’s original claim for entitlement to service connection for hepatitis was denied in a March 1976 rating decision; the RO declined to reopen the claim in a July 2006 rating decision, which is final. 2. Evidence received since the July 2006 rating decision is cumulative and redundant of the evidence previously of record, such that it does not relate to an unestablished fact necessary to substantiate the hepatitis claim, or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been presented to reopen the claim of entitlement to service connection for hepatitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from May 1971 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. New and material evidence The Veteran seeks to reopen the previously denied claim of entitlement to service connection for hepatitis. For the following reasons, the Board finds that reopening is not warranted. Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when new and material evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the final denial, regardless of whether the denial was on the merits or on procedural grounds, to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). New evidence means existing evidence that was not previously submitted to agency decisionmakers. 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 the 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). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 365 F.3d 1366, 1369 (Fed. Cir. 2001). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board as the that issue goes directly to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d at 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; thus, the RO’s reopening of a claim is not binding on the Board. Id. Turning to the evidence of record, the claim of entitlement to service connection for hepatitis was originally denied in a March 1976 rating decision. In that decision, the RO noted that the Veteran’s service treatment records contained an entry in February 1974 regarding hepatitis, but that hepatitis was not found on his last examination. In March 2006, the Veteran submitted a Veterans Application for Compensation or Pension seeking entitlement to service connection for hepatitis. The Veteran did not submit any new or material evidence in support of his claim. Thereafter, the RO issued a July 2006 rating decision denying reopening the Veteran’s claim for entitlement to service connection for hepatitis as no new and material evidence had been received. VA notified the Veteran of its decision in July 2006, and the Veteran did not appeal this decision. Thus, the decision became final. In October 2013, the Veteran submitted another Veterans Application for Compensation or Pension seeking entitlement to service connection for hepatitis. VA notified the Veteran of the types of information needed to reopen his previously denied claim. In February 2014, the Veteran returned a signed VCAA Notice Acknowledgement, along with copies of pages from his service treatment records, and the original March 1976 rating decision. VA provided the Veteran with a medical examination in July 2014. The examiner’s opinion first noted the Veteran’s self-reported history regarding in-service events, and periods of hospitalization for hepatitis post-discharge from service, as well as his current symptoms of fatigue and soreness. The examiner then conducted a thorough review of the Veteran’s service and VA treatment records, specifically annotating each relevant entry from his service treatment records and the record of first diagnosis recorded in VA treatment records. The examiner concluded that no service treatment records document an evaluation of, treatment for, or diagnosis with hepatitis C while in service, and further, that a review of available medical literature failed to support a causative etiology between hepatitis B and hepatitis C. Based on the evidence of record, the RO issued a September 2014 rating decision where it granted reopening of the claim and continued the denial of the claim. In the timely October 2014 notice of disagreement, the Veteran stated he would provide additional medical evidence to substantiate his claim. No new or material evidence was received by VA; therefore, the RO issued the May 2016 statement of the case continuing the denial of the Veteran’s claim. The Board finds that the evidence obtained since the final July 2006 rating decision is new, specifically the July 2014 VA examination notation regarding the date of diagnosis of hepatitis C. However, as the July 2014 VA examination provided a negative etiological opinion regarding the hepatitis C diagnosis and found no current residuals of the in-service hepatitis B diagnosis, the Board finds that the evidence is not material as it does not raise a reasonable possibility of substantiating the claim. Although the Board recognizes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, new and material evidence must be presented in order for a previously denied claim to be reopened. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the Board must deny the Veteran’s claim to reopen his previously denied claim for entitlement to service connection for hepatitis. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk