Citation Nr: 18151222 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-45 335 DATE: November 16, 2018 ORDER New and material evidence has not been received, and the claim for entitlement to service connection for prostate cancer is not reopened. New and material evidence has not been received, and the claim for entitlement to service connection for diabetic retinopathy is not reopened. FINDINGS OF FACT 1. An August 2013 rating decision, in part, denied entitlement to service connection for prostate cancer; the Veteran did not appeal this denial in a timely manner, new and material evidence was not received within the one-year appeal period. 2. Evidence received subsequent to the August 2013 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for prostate cancer, and does not raise a reasonable possibility of substantiating such claim. 3. An August 2013 rating decision, in part, denied entitlement to service connection for diabetic retinopathy; the Veteran did not appeal this denial in a timely manner, and new and material evidence was not received within the one-year appeal period. 4. Evidence received subsequent to the August 2013 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetic retinopathy, and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision which, in part, denied entitlement to service connection for prostate cancer, is final, and new and material evidence sufficient to reopen the previously denied claim for service connection for prostate cancer has not been received. 38 U.S.C. §§ 7105, 5108 (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103, 20.1105 (2018). 2. The August 2013 rating decision which, in part, denied entitlement to service connection for diabetic retinopathy, is final, and new and material evidence sufficient to reopen the previously denied claim for service connection for diabetic retinopathy has not been received. 38 U.S.C. §§ 7105, 5108 (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103, 20.1105 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had military service from April 1972 to July 1977. His period of service from April 28, 1972 through April 27, 1975, has been determined to be honorable active service. His period of service from April 28, 1975 to July 27, 1977 has been determined to be dishonorable and a bar to VA benefits. These matters are before the Board of Veterans' Appeals on appeal of a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. New and Material Evidence VA may reopen and review a claim, which has been previously denied, if new and material evidence is received, or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for prostate cancer An August 2013 rating decision denied a claim for service connection for prostate cancer based on a finding that the Veteran’s prostate cancer was neither incurred in or caused by service. The Veteran did not appeal the August 2013 rating decision in a timely manner, and no new and material evidence was received within the appeal period. Notice of the August 2013 rating decision was mailed to the Veteran on August 8, 2013, along with a notice of his appellate rights. In a subsequent August 2013 statement, the Veteran appeared to request an increase in his nonservice-connected pension based on an increased disability rating; however, as nonservice-connected pension is based on income rather than disability level, VA sought clarification from the Veteran in November 2013 and August 2014; however, the Veteran declined to articulate the benefit he was seeking and explained his attorney was handling his claim. Further, as noted above, neither the Veteran, nor his representative, submitted a notice of disagreement with respect to the August 2013 rating decision, and no new and material evidence was received within the appeal period. Thus, the August 2013 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, the Veteran’s representative submitted, in part, an August 20, 2014 claim to reopen entitlement to service connection for prostate cancer, which even with consideration of the “mailbox rule” is not timely as a notice of disagreement with the August 2013 rating decision as notice of the August 2013 rating decision was issued on August 8, 2013, and hence, cannot be even broadly construed as a notice of disagreement. 38 C.F.R. § 20.305 (a). The August 20, 2014 claim to reopen the claim for service connection for prostate cancer forms the basis of the present appeal. With respect to the August 2013 rating decision, which in part, denied entitlement to service connection for prostate cancer, the evidence of record included service records, medical records, and statements from the Veteran. New evidence added to the record since the August 2013 rating decision, as relevant to the claim on appeal, consists of additional argument from the Veteran’s representative. No new and material evidence for this claim has been received since the prior, final denial in August 2013 rating decision. Specifically, the Veteran’s representative, in the January 2015 notice of disagreement and in the September 2016 substantive appeal, provided general argument, including argument that VA failed to consider all theories of entitlement including direct, presumptive and secondary. Additionally, in the September 2016 substantive appeal, the Veteran’s representative further stated that the Veteran had submitted evidence that supported his claim and requested application of the benefit of doubt and the benefit of all relevant presumptions. The Veteran’s representative argument is not new evidence as she only generally asserted the Veteran’s disability was related to his service, and did not provide a basis for the Board to consider. The Veteran’s general contention of a link with his service was made with respect to the initial claim and thus cumulative of the previous evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Additionally, under 38 C.F.R. § 3.156 (c)(1), any time after VA issues a decision on a claim and 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. In this regard, a DD-214 for the Veteran’s second period of service appears to have been associated with the record in November 2014, although the Board recognizes it was also listed as evidence in an August 2013 administrative decision. In any event, this document was duplicative of evidence that was already of record at the time of the earlier decision, specifically a January 2010 Personnel Information Exchange System (PIES) response noted the dates of the Veteran’s active service and the character of discharge for each period of service. Further, the Veteran’s service personnel records were associated with the record in March 2012. Thus, 38 C.F.R. § 3.156 (c)(1) is inapplicable. Accordingly, for the reasons above, and even considering the low threshold standard outlined pursuant to Shade, the Board finds that new and material evidence has not been received, and the claim of service connection for prostate cancer, may not be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetic retinopathy An August 2013 rating decision denied the claim for service connection as diabetic retinopathy was found to be neither incurred or caused by service. The Veteran did not appeal the August 2013 rating decision in a timely manner, and no new and material evidence was received within the appeal period. Notice of the August 2013 rating decision was mailed to the Veteran on August 8, 2013, along with a notice of his appellate rights. In a subsequent August 2013 statement, the Veteran appeared to request an increase in his nonservice-connected pension based on a disability rating; however, as nonservice-connected pension is based on income rather than disability level, VA sought clarification from the Veteran in November 2013 and August 2014; however, the Veteran declined to articulate the benefit he was seeking and explained his attorney was handling his claim. Further, as noted above, neither the Veteran, nor his representative, submitted a notice of disagreement with respect to the August 2013 rating decision and no new and material evidence was received within the appeal period. Thus, the August 2013 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, the Veteran’s representative submitted, in part, an August 20, 2014 claim to reopen entitlement to service connection for diabetic retinopathy, which even with consideration of the “mailbox rule” is not timely as the August 2013 rating decision, with August 8, 2013 notification, could not be even broadly construed as a notice of disagreement. 38 C.F.R. § 20.305 (a). The August 20, 2014 claim to reopen service connection for diabetic retinopathy forms the basis of the present appeal. With respect to the August 2013 rating decision, which in part, denied the claim of entitlement to service connection for diabetic retinopathy, the evidence of record included service records, medical records, and statements from the Veteran. New evidence added to the record since the August 2013 rating decision, as relevant to the claim on appeal, consists of additional argument from the Veteran’s representative. No new and material evidence for this claim has been received since the prior, final denial in the August 2013 rating decision. Specifically, the Veteran’s representative, in the January 2015 notice of disagreement and in the September 2016 substantive appeal, provided general argument, including argument that VA in failed to consider all theories of entitlement including direct, presumptive and secondary. Additionally, in the September 2016 substantive appeal, the Veteran’s representative further stated that the Veteran had submitted evidence that supported his claim, and requested application of the benefit of doubt and the benefit of all relevant presumptions. The Veteran’s representative’s argument is not new evidence as she only generally asserted the Veteran’s disability was related to his service, and did not provide a basis for the Board to consider. The Veteran’s general contention of a link with his service was made with respect to the initial claim and thus cumulative of the previous evidence. Bostain, 11 Vet. App. at 127. Additionally, under 38 C.F.R. § 3.156 (c)(1), any time after VA issues a decision on a claim and 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. In this regard, a DD-214 for the Veteran’s second period of service appears to have been associated with the record in November 2014, although the Board recognizes it was also listed as evidence in an August 2013 administrative decision. In any event, this document was duplicative of evidence that was already of record at the time of the earlier decision, specifically a January 2010 PIES response noted the dates of the Veteran’s active service and the character of discharge for each period of service. Further, the Veteran’s service personnel records were associated with the record in March 2012. Thus, 38 C.F.R. § 3.156 (c)(1) is inapplicable. Accordingly, for the reasons outlined above, and even considering the low threshold standard outlined pursuant to Shade, the Board finds that new and   material evidence has not been received, and the claim of service connection for diabetic retinopathy, may not be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel