Citation Nr: 18149814 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 18-34 825 DATE: November 13, 2018 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for bladder cancer has not been submitted and the petition to reopen is denied. FINDINGS OF FACT 1. A September 2016 Board decision declined to reopen claims of entitlement to service connection for bladder cancer and that decision became final after the Court of Appeals for Veterans Claims (Court) in July 2017 dismissed the Veteran’s appeal of the September 2016 Board decision and the Veteran failed to appeal the Court’s decision. 2. Evidence received since the September 2016 Board decision is cumulative as to the bladder cancer claim. CONCLUSIONS OF LAW 1. The September 2016 Board decision that found that new and material evidence sufficient to reopen a claim for bladder cancer had not been submitted is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018). 2. Evidence received since the September 2016 Board decision in relation to the Veteran’s claim for entitlement to service connection for bladder cancer is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1966 to March 1969 and from May 1969 to October 1974. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for bladder cancer has been submitted The Veteran contends that his bladder cancer was the result of in-service exposure to herbicides. In a September 2016 determination the Board denied the Veteran’s claim for entitlement to service connection for bladder cancer. In December 2016, the Veteran’s petition for reconsideration was denied by the Board. Subsequently, the Veteran appealed the determination to the Court of Appeals for Veterans Claims (Court), but that appeal was dismissed in July 2017 and the Veteran did not appeal that determination. As such, the September 2016 Board determination became final. See 38 C.F.R. § 20.1100 (2018). As a result, the claim of entitlement to service connection may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered “new” if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Again, the Veteran contends that his bladder cancer was due to in-service herbicide exposure. The September 2016 Board decision denied the bladder cancer claim as there was no competent evidence indicating that the bladder cancer was related to an event or injury during service. The evidence of record at the time of this Board decision consisted of the Veteran’s service treatment records (STRs), post-service treatment records, and a VA examination in February 2016. The STRs included no complaints, treatment, or diagnosis of bladder cancer. The Veteran does not contend that his bladder cancer had its onset in service. Post-service treatment records document a diagnosis of bladder cancer from 2010. In his June 2014 substantive appeal, the Veteran reported that a physician had told him that Agent Orange probably caused his bladder cancer. At the February 2016 VA examination, the examiner concluded that the bladder cancer was less likely than not incurred in service and was not related to Agent Orange exposure. The examiner indicated that the Veteran had a 35-year history of smoking tobacco, approximately one pack per day since he was 16 years old. The Veteran stated that he had quit in the 1990s. The examiner noted that smoking was a risk factor for bladder cancer and that smokers were at least 3 times more likely to get bladder cancer than nonsmokers. Specifically, smoking caused at least half of bladder cancers in both men and women. Chemicals linked to bladder cancer included arsenic and chemicals used in the manufacture of dyes, rubber, leather, textiles, and paint products. The examiner observed that the medical literature did not support conclusive evidence that Agent Orange exposure was a risk factor for development of bladder cancer. As such, it was less likely than not that exposure to Agent Orange during deployment to Vietnam caused or was linked to bladder cancer diagnosed in 2010. The Board finds that the evidence submitted since the September 2016 Board decision is cumulative, the claims are not reopened. The sole additional evidence of record since the September 2016 Board decision was a statement from the Veteran as part of his June 2018 substantive appeal. Therein, the Veteran reiterated that a physician had told him his bladder cancer was likely caused by herbicide exposure in service. In addition, the Veteran argued that a physician had told him that his bladder exposure was due to exposure to chemicals. The Veteran was concerned that no VA treatment records after 2014 had been associated with the claims file. The Veteran’s contentions that he had been told by a physician his bladder cancer was due to chemical exposure, to include Agent Orange, was previously considered in the September 2016 Board decision and prior VA examination report. Such a contention is not new evidence. As to the Veteran’s contentions that VA treatment records from 2014 had not been associated with the claims file, such an argument is incorrect in light of records having been associated in February 2016 at the time of the VA examination. As to any subsequent records, the Veteran has not argued and there is no evidence to suggest that such records would help to demonstrate an unestablished fact and, as such, any other VA treatment records would not constitute new and material evidence. Pursuant to the Court’s holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the claim should be reopened, the Board concludes that the above evidence is not new and material; rather the evidence is cumulative. The Court, in Shade, has established that there is a low bar to reopening a claim. However, that low bar is not met in this case as to either issue. In the absence of new and material evidence, the application to reopen the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel