Citation Nr: 18151336 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 18-17 461 DATE: November 16, 2018 ORDER New and material evidence has not been received to reopen the issue of whether the appellant’s character of discharge for the period of service from March 1, 1972 until September 29, 1972 is a bar to the receipt of Department of Veterans Affairs (VA) benefits, and the appeal is denied. FINDINGS OF FACT 1. A September 2008 Board of Veterans Appeals (Board) decision declined to reopen the appellant’s claim that his character of discharge for the period of service from March 1, 1972 until September 29, 1972 remains a bar to a grant of compensation benefits. The appellant did not file a timely appeal to the Court of Appeals for Veterans Claims (Court). 2. The appellant asserted that there was clear and unmistakable error (CUE) in the Board’s prior decisions, but the Board denied this claim in a February 2014 decision. The appellant appealed that decision to the Court. In December 2014 the Court remanded the decision to the Board to consider the appellant’s allegations that there was CUE with the July 2003 Board decision and to consider additional evidence in the context of the September 2008 Board decision. In November 2015 the Board denied the claim that there was CUE in either the Board’s July 2003 or September 2008 decisions. In October 2016 the Court affirmed the Board’s decision. 3. The additional evidence received since the September 2008 Board 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 September 2008 Board decision that the appellant’s character of discharge was a bar to his receipt of VA benefits is final. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1100. 2. As no new and material evidence has been received, the petition to reopen the claim of whether the character of the appellant’s discharge is a bar to his receipt of VA benefits is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from March 1972 to September 1972. He was discharged with an other than honorable discharge. Whether new and material evidence has been received to reopen the question of whether the character of the appellant's discharge for the period of service from March 1, 1972 until September 29, 1972 remains a bar to a grant of compensation benefits In a September 2008 Board decision, the Board found that there had been no new and material evidence submitted to permit reopening the claim of whether the character of the appellant’s discharge remains a bar to a grant of compensation benefits since the Board had previously denied the claim in July 2003. The Board found that the appellant’s claim was denied in April 1974, May 1981, March 1997, and May 1997 administrative decisions. The appellant did not appeal those decisions. The appellant’s claim was again denied in a February 1998 rating decision. The appellant appealed that decision, which led to the Board denying the claim in July 2003. In the September 2008 decision, the Board found that there had been no new and material evidence since the Board’s July 2003 decision that would permit reopening of the claim. Specifically, the Board determined that there was no evidence pertaining to the issues that the appellant had elected an other than honorable discharge instead of a court martial, had participated in willful and persistent misconduct, and was not found to be insane at the time of the commission of the offences. The Veteran appealed the Board’s September 2008 decision to the Court, which remanded the claim to the Board for further consideration. The Board ultimately found that there was not CUE in either its July 2003 or September 2008 decisions. The Court affirmed the Board’s decision in an October 2016 decision. Therefore, the Board’s September 2008 decision is final. See 38 C.F.R. § 20.1400(b) (all final Board decisions are subject to revision except decisions on issues which have been appealed to and decided by a court of competent jurisdiction). Also, no additional relevant service records have been received at any time, warranting reconsideration of the claim. See 38 C.F.R. § 3.156(c). While the appellant has submitted service treatment records showing a motor vehicle accident and acne in service, these are not relevant to his claim. Hence, the September 2008 Board decision is final, and is not subject to revision on the same factual basis. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1100. The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. In December 2017, less than two months after the Court denied his appeal, the appellant filed his request to reopen his claim. New evidence received since the September 2008 Board decision includes additional statements by the appellant regarding his discharge, private medical records, letters from the Social Security Administration (SSA) regarding the appellant’s current disability payments, and VA treatment records. While this evidence is new, it is not material to the appellant’s claim. None of these statements or evidence relates to a previously unestablished fact and/or presents a reasonable possibility of substantiating the claim. Accordingly, the Board finds that no new and material evidence has been submitted to permit reopening the appellant’s claim of whether the character of his discharge is a bar to his receipt of VA benefits has been received. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke