Citation Nr: 18150548 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-62 575 DATE: November 15, 2018 ORDER New and material evidence having not been received, the Veteran’s application to reopen the previously denied claim of entitlement to service connection for chronic bronchitis is denied. FINDINGS OF FACT 1. Entitlement to service connection for chronic bronchitis was denied in by the Regional Office (RO) in a July 2006 rating decision, which was not appealed and then became final. 2. The evidence submitted since the July 2006 rating decision is either cumulative, redundant, or does not relate to an unestablished fact necessary to substantiate the claim of service connection for chronic bronchitis. CONCLUSIONS OF LAW 1. The July 2006 rating decision that denied entitlement to service connection for chronic bronchitis is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the July 2006 rating decision is not new and material, and the Veteran’s claim for service connection for chronic bronchitis is not reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected his appeal. See August 2015 Notice of Disagreement, December 2016 Statement of the Case, and December 2016 VA Form 9. New and Material Evidence The Veteran seeks to reopen his claim of entitlement to service connection for chronic bronchitis. The RO declined to reopen the claim in a rating decision dated April 2015. Yet, even though the RO made determinations that new and material evidence has or has not been received to reopen the Veteran’s claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). As an initial matter, the Board finds the July 2006 rating decision as to the Veteran’s claim of entitlement to service connection for chronic bronchitis is a final decision that may only be reopened if new and material evidence is presented. The Veteran filed a claim of service connection for chronic bronchitis in January 2006, and the RO denied the claim in a July 2006 rating decision. The Veteran did not express a timely disagreement or submit new and material evidence within one year. Thus, the July 2006 rating decision became final and cannot be reopened unless there is new and material evidence. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273, 283 (1996). 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, 513 (1992). In this case, the Veteran needs new and material evidence relating to the whether there is a nexus between his claimed chronic bronchitis and his active service to reopen the claim. The Veteran’s January 2006 application for service connection for chronic bronchitis reflects that he was diagnosed with bronchitis and treated while in service and that doctors initially believed that he had malaria. The July 2006 rating decision reflects that service connection for chronic bronchitis was denied because the evidence did not show the condition either occurred in, or was caused, by service. The evidence considered by the July 2006 rating decision includes service treatment records, private treatment records, statements from the Veteran, and a VA examination report. The July 2006 rating decision reflects that the Veteran’s service treatment records show that the Veteran had an in-service complaint, on one occasion in September 1967, for bronchitis for which he was given antibiotic therapy. It also reflects that he had no further problems during his active duty service or within one year following separation. Additionally, the rating decision reflects that there were no formal findings of malaria exposure while on active duty. The rating decision also reflects that there was post-service evidence of bronchitis in November 1991, September 2001, and June 2006, but that there was no reference or relationship shown between the diagnosis of acute bronchitis rendered thirty years prior and his recent treatment in June 2006. Private treatment records, dated in 1991, 2005, and 2007, indicated assessments of bronchitis, but no etiology opinions relating it to service was provided. The VA examination report revealed that the Veteran was being treated with antibiotic therapy for dry cough symptoms, tightness in the chest, and a smothering feeling, but that there was no evidence of restrictive lung disease. The examiner opined that the Veteran did not have chronic bronchitis and that it was less likely than not that the Veteran’s present symptoms were related to the problems that he had while in service. The evidence received since the July 2006 rating decision consists of numerous lay statements and VA medical treatment records. The pertinent lay statements and VA medical records are new in that they were not reviewed prior to the July 2006 rating decision. The lay statements and VA medical records, however, are not material because the evidence does not reasonably substantiate the claim if reopened, as it has no tendency to relate his diagnosed bronchitis to service. As to the Veteran’s lay statements which indicate that he has chronic bronchitis and that such is related to service, such statements are reiterative of his statements from his original claim for which the Veteran is not competent to provide. The VA treatment records show a diagnosis for bronchitis, but the records do not suggest that the condition is causally related to his service. Since the evidence submitted after July 2006 is not new and material, the claim of service connection for chronic bronchitis is not reopened. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Accordingly, the criteria for reopening the claim for entitlement to service connection for chronic bronchitis are not met. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel