Citation Nr: 18151131 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-40 557 DATE: November 19, 2018 ORDER The application to reopen the claim for entitlement to service connection for prostate cancer residuals is denied. The application to reopen the claim for entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. A September 2014 rating decision denied reopening the Veteran’s claims for service connection for prostate cancer residuals and diabetes mellitus. There was no material evidence pertinent to the claims received within one year of the issuance of that decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence received since the September 2014 decision does not relate to an unestablished fact necessary to substantiate the claims of service connection for prostate cancer residuals or diabetes mellitus; it is cumulative of the evidence already of record. CONCLUSIONS OF LAW 1. The September 2014 rating decision declining to reopen the claims for service connection for prostate cancer residuals and diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the September 2014 rating decision is not new and material, and the claims for service connection for prostate cancer residuals and diabetes mellitus are not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1968 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The electronic filing system contains medical records that were associated with the file since the RO’s last readjudication of the claims without a waiver of RO jurisdiction. See 38 U.S.C. § 7105(e)(1), (2) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). However, the records pertain to his claim for special monthly compensation based on aid and attendance or housebound status, and are not pertinent to the claims adjudicated below. As such, there is no risk of prejudice to the appellant from proceeding without the waiver. Applications to Reopen Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). In a rating decision of April 2014, the RO denied service connection for prostate cancer residuals and diabetes mellitus. The evidence at the time consisted of statements from the Veteran, service treatment records (STRs), personnel records, private treatment records, VA treatment records, and VA examination reports. The RO discussed the Veteran’s reports of herbicide agent exposure on the Korean DMZ, but found that the Department of Defense had not identified his unit as one that served in areas where herbicide agents were used between April 1968 and July 1969. The service treatment records (STRs) did not show complaints, treatment, or diagnoses pertaining to a prostate disability or to diabetes mellitus. The disabilities had not developed to a compensable degree within one year of discharge from service. The record did not show a link between the disabilities and military service. The claims were thus denied. There was no material evidence received pertinent to the claims within one year of the issuance of the decision. The Veteran was notified of that decision and of his appellate rights, but he did not appeal the decision. The April 2014 rating decision became final. In September 2014, the RO denied reopening the claims for service connection for prostate cancer residuals and diabetes mellitus. Additional medical records had been received since April 2014, but they were not material. The RO found that the evidence received since the April 2014 rating decision still did not support presumptive service connection, or that the Veteran’s prostate cancer residuals or diabetes mellitus were caused by or related to military service. There was no material evidence received within one year of the issuance of the September 2014 decision. The Veteran was notified of that decision and of his appellate rights but he did not appeal the decision. In making the above determinations, the Board considered statements from the Veteran dated from November 2014 and April 2015, in which he asserted that his social security number had been mixed up with his father’s, who shared his name, and this was why his claims were denied. He stated this constituted clear and unmistakable error (CUE) in the prior rating decisions. In April 2015 and July 2015 letters, the RO explained that the social security number used for the Veteran matched that shown on other documents containing his personally identifiable information, and did not match his father’s documents. The RO explained that a mix-up had not occurred, and the prior adjudications did not contain CUE. The Veteran was invited to provide any information or documents to the contrary. He was also provided instructions regarding filing an appeal of the prior decisions, submitting new evidence, and raising any other CUE claims. He did not respond. The Board does not find that the November 2014 correspondence constitutes a Notice of Disagreement (NOD) with the prior rating decisions because the Veteran did not express any desire to contest the result or obtain appellate review of any prior decision. 38 C.F.R. § 20.201. Rather, he identified a clerical error he felt had been made, and did not respond when it was shown that no error occurred. As for the April 2015 communication, it was submitted on a VA Form 9 (Appeal to Board of Veterans’ Appeals), which suggests a desire for appellate review. However, effective March 24, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction as a notice of disagreement if it is submitted on a standardized form (VA Form 21-0958, NOD) provided by VA for the purpose of appealing the decision in cases where the form is provided, as occurred here. See 38 C.F.R. § 20.201(a); April 2014 & October 2014 notification letters. Also, the prior rating decisions adjudicated multiple issues, and the Veteran did not attempt to identify the particular issues with which he disagreed, if any, in either his November 2014 or April 2015 correspondence. See 38 C.F.R. § 20.201. The Board thus finds that no NOD was filed in response to the April or September 2014 rating decisions. As for the CUE allegation, the RO responded to the Veteran’s concerns regarding the social security number, and he did not thereafter pursue an appeal of CUE in any prior final rating decision. The matter of CUE in any prior final rating decision is not in appellate status and is not before the Board. The April and September 2014 decisions are therefore final as to the evidence then of record, and are not subject to revision on the same factual basis. The evidence received since the last final September 2014 rating decision includes statements from the Veteran, VA treatment records, private treatment records, and Disability Benefits Questionnaires. The basis for the prior denials was a lack of probative evidence establishing the in-service incurrence or aggravation of the disabilities, a nexus between the current disabilities and service, or evidence supporting presumptive service connection. The records received since September 2014 do not raise any reasonable possibility of substantiating these elements of the claims. The Veteran’s statements, while both admissible and believable, are similar to those made prior to September 2014. The prior evidentiary defect has not been cured, nor has it triggered VA’s duty to provide further assistance. The evidence is cumulative and redundant of that already of record when the claims were last finally denied in September 2014. The additional evidence received since the September 2014 rating decision does not relate to an unestablished fact necessary to substantiate the claims for prostate cancer residuals or diabetes mellitus, nor does it raise a reasonable possibility of substantiating the claims. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The claims for service connection are not reopened. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel