Citation Nr: 18152045 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 18-25 431 DATE: November 21, 2018 ORDER The application to reopen the claim of recognition of the Veteran’s son as the helpless child of the Veteran is denied. FINDINGS OF FACT 1. An unappealed April 2003 Board decision denied recognition of the Veteran’s son as the helpless child of the Veteran. 2. Evidence submitted since the April 2003 decision was previously of record, and does not bear directly and substantially on the matter of whether the Veteran’s son was permanently incapable of self-support before attaining the age of eighteen. CONCLUSION OF LAW Evidence submitted since the April 2003 Board decision denying recognition of the Veteran’s son as the helpless child of the Veteran is not new and material, and 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 served on active duty in the U.S. Army from December 1944 to May 1946. He died on October [redacted], 1996. The appellant is his surviving son. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an September 2017 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). With regard to the Veteran’s applications to reopen his claims for recognition of the Veteran’s son as the helpless child of the Veteran, regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Application to Reopen Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). The appellant was denied recognition as the helpless child of the Veteran, in an April 2003 Board decision on a claim pursued by his mother on his behalf. The Board found that at the time of his eighteenth birthday in November 1980, the Veteran’s son did not have a disability that rendered him incapable of self-support. When the appellant failed to appeal, the denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2017). At the time of the prior final Board decision in April 2003, the record included the appellant’s birth certificate, private medical records that showed that the appellant was in a 1980 motor vehicle accident before his eighteenth birthday, hospitalization records through April 1981, a subsequent June 1988 operative report, and lay statements from the appellant’s mother. Private treatment records showed that the appellant was in a motor vehicle accident in 1980 before his eighteenth birthday. These records further indicated that the appellant sustained head and bodily injuries and was unconscious for several weeks. Subsequent records further note that the appellant was hospitalized through April 1981. Upon discharge, there was a diagnosis of a fractured right proximal humerus, comminuted fracture right femur, status post head injury with cerebral contusion, and respiratory insufficiency. A June 1988 operative report indicated that the appellant underwent surgery for chronic osteomyelitis of the right femur. Upon review of the evidence of record, the April 2003 Board decision referenced the appellant’s treatment for serious head and bodily injuries, but noted that there was no finding that the appellant developed a physical or mental disability that rendered him helpless. The Board also noted that treatment records through 1988 did not mention a history of mental disability prior to the appellant’s attainment of the age of eighteen or after. Although treatment records from 1980 reflect that the appellant was unconscious for three weeks after the motor vehicle accident, the Board referenced that there was no subsequent finding that he developed a serious mental or physical disorder that rendered him helpless prior to his eighteenth birthday or as a result of the motor vehicle accident. In January 2016, the appellant applied to reopen his claim of recognition of the Veteran’s son as the helpless child of the Veteran. In order to reopen the previously denied claim, the evidence submitted since the last final denial must be new and material. The Appellant has submitted private treatment records from December 1980 to April 1997 which document his accident and subsequent treatment and recovery. These records are not new, and reopening is not warranted. The submitted treatment records were already of record, and have been fully considered. These same records, from these same sources, were considered in the April 2003 Board decision. They recount the appellant’s accident weeks prior to his eighteenth birthday and subsequent treatment. Reopening and reconsideration of the prior claim on the same evidentiary record, is not permitted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel