Citation Nr: 18152504 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-40 962A DATE: November 23, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. A December 2005 Board decision denied service connection for the Veteran’s cause of death. The Appellant did not timely appeal the decision and it became final. 2. Evidence received since the December 2005 Board decision is new, but does not relate to a previously unestablished element of the claim or raise a reasonable possibility of substantiating the Appellant's claim. CONCLUSION OF LAW The evidence received since the December 2005 Board decision is not new and material. 38 U.S.C. § 5108, 7104; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1970 to December 1971. He died in January 2002, and the Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for cause of the Veteran's death The Appellant seeks to reopen her claim of entitlement to service connection for the cause of the Veteran’s death. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2018). Service connection for the Veteran’s cause of death was denied in a December 2005 Board decision on the basis that a service-connected disability did not cause or materially contribute to the Veteran’s cause of death. The Appellant did not appeal the Board decision and it became final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 20.302(b), 20.1100 (2018). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). At the time of the December 2005 Board decision, evidence relevant to the claim included the Veteran’s service treatment records, service personnel records, post service treatment records, death certificate, numerous lay statements asserting that the Veteran’s alcoholism was secondary to his service-connected posttraumatic stress disorder (PTSD) and that his hepatitis C was incurred during active service, a June 2002 VA opinion, and a February 2004 hearing transcript. The evidence received since the December 2005 decision includes additional statements from the Appellant continuing to assert that the Veteran’s death was caused by his service-connected PTSD because he used alcohol to self-medicate his PTSD symptoms. Duplicate VA treatment records, service treatment records, and service personnel records were also uploaded into the claims file. Initially, the Board notes that the VA treatment record, service treatment records, and service personnel records, which were uploaded into the claims file in August 2014, September 2014, and December 2016, are duplicative of the records that were associated with the claims file at the time of the December 2005 Board decision. See Board decision, dated December 5, 2005; Statement of the Case, dated February 4, 1994; Rating Decision, dated October 28, 1998; Rating Decision, dated October 28, 1993. Accordingly, that evidence is not new. Regarding the Appellant’s current statements, while this evidence was not of record at the time of the December 2005 Board decision, the lay statements are cumulative and redundant of the Appellant’s assertions that were of record at the time of the December 2005 Board decision. Accordingly, new and material evidence has not been submitted and the petition to reopen the claim of entitlement to service connection for the Veteran’s cause of death must be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson