Citation Nr: 18149488 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-35 485 DATE: November 9, 2018 ORDER New and material having not been received, the application to reopen the previously denied claim for service connection for prostate cancer, to include as due to herbicide exposure, for accrued purposes, is denied. FINDINGS OF FACT 1. In a December 1996 rating decision, the Veteran was denied service connection for prostate cancer, to include as due to herbicide exposure. He did not appeal or submit new and material evidence within one year of that decision. 2. The evidence received since the December 1996 rating decision is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 1996 rating decision denying service connection for prostate cancer is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has not been received to warrant reopening of the previously denied claim for service connection for prostate cancer. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1943 to December 1963 and from October 1968 to October 1969. He denied in April 2013, and the appellant is claiming benefits as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. New and Material Evidence Neither the appellant nor her representative has raised any issues with aspects of the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See 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, to include by triggering the Secretary’s duty to assist. Id. at 118. In a December 1996 rating decision, the RO denied the claim for service connection for prostate cancer. In particular, the RO noted that the Veteran’s service treatment records were negative for any documentation of prostate cancer. There was also no other evidence in the claims file showing that he had prostate cancer. The Veteran was notified of the December 1996 rating decision and of his appellate rights in a letter sent to him the same month; however, he did not submit a notice of disagreement with the decision. There was also no evidence received within one year of the issuance of the decision. Therefore, the December 1996 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103 (2017). In July 2011, the Veteran submitted an application to reopen his claim for service connection for prostate cancer. Following his death in April 2013, the appellant filed a claim for accrued benefits. After reviewing the evidence of record, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for prostate cancer. The evidence received since the December 1996 rating decision includes VA treatment records, private medical records, and military personnel records. With regard to the VA and private medical records, the Board notes that they do not contain any diagnosis of prostate cancer. Rather, VA treatment records dated in April 2013 showed diagnoses of adenocarcinoma of the cecum and metastatic cancer of the colon, but no diagnosis of prostate cancer. The Veteran had also submitted May 2010 and November 2011 laboratory results from Valley Urology, which noted that he had benign prostatitic hypertrophy and a nodule; however, there was no diagnosis of prostate cancer noted. Similarly, the appellant submitted an April 2015 letter from Valley Urology indicating that the Veteran had been treated for a prostate nodule, benign prostatitic hypertrophy, decreased force of stream, and nocturia, yet there was no diagnosis of prostate cancer. Therefore, the Board finds that the VA and private medical records do not constitute new and material evidence. With respect to the military personnel records, the Board notes that some of those records are duplicative of copies associated with the claims file at the time of the December 1996 rating decision. Moreover, the additional records are not relevant to the claim, as they do no establish that the Veteran had prostate cancer at any time during his lifetime. The Board does note that, 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, whether or not the service department records are “new and material” under 38 C.F.R. § 3.156(a). See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014); 38 C.F.R. § 3.156(c). However, the mere receipt of additional service department records is not enough to trigger reconsideration; the records must be relevant. The United States Court of Appeals for the Federal Circuit has held that service records are not “relevant” for purposes of 38 C.F.R. § 3.156(c) if they contain facts that were never in question and do not remedy defects in the prior denial. Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017), reh’g denied, 880 F.3d 1378 (Fed. Cir. 2018). As such, 38 C.F.R. § 3.156(c) does not apply, and such records cannot be considered new and material for purposes of reopening the claim. Significantly, the evidence missing at the time of the December 1996 rating decision continues to be absent. Specifically, there remains no evidence showing that the Veteran was diagnosed with prostate cancer. Accordingly, the Board finds that new and material evidence has not been presented to reopen the previously denied claim for service connection for prostate cancer. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel