Citation Nr: 18152809 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-49 094 DATE: November 27, 2018 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for asthma and the appeal is denied. FINDINGS OF FACT 1. A July 1998 rating decision denied service connection for bronchial asthma because the Veteran failed to submit new and material evidence. The Veteran was notified of that decision in July 1998 and did perfect a timely appeal. Thus, the decision became final. 2. The evidence received since the July 1998 rating decision is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for asthma. CONCLUSIONS OF LAW 1. The July 1998 rating decision that denied service connection for asthma is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104. 2. As new and material evidence has not been received, the claim for service connection for asthma is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to December 1965. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asthma. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C.§ 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The service medical records show that the Veteran, five days after entering service, was diagnosed with bronchial asthma. Service medical records from October 1965 show that the Veteran self-reported having had episodes of wheezing and shortness of breath about twice per year, relieved by various bronchodilator drugs for the past three years. As a result, the Veteran was deemed “not eligible for enlistment or induction into service because of bronchial asthma which existed prior to his entry on active duty and which would preclude satisfactory performance of duty. He was qualified for retention but elected separation. The December 1965 service separation examination report shows the Veteran had normal lungs. A January 1971 rating decision denied service connection for asthma because the records show that the Veteran was hospitalized in October 1965 and the examination found bronchial asthma which existed prior to his entry on active duty and which would preclude satisfactory performance of duty. The Veteran was notified of that decision in January 1971 and did perfect a timely appeal within one year and the decision became final. Subsequently, the Veteran submitted new and material evidence and the case was reopened. This new evidence consisted of a statement from the Veteran’s mother, a statement from the Veteran’s former physical education teacher, a statement from the Veteran’s primary care physician, and a statement from the Veteran himself. All of the statements were from November 1976 and state that the Veteran was in good health prior to joining the army and had no signs of asthma. Service connection for asthma was again denied in a December 1976 rating decision. The Veteran perfected a timely appeal of the December 1976 rating decision. A November 1977 Board of Veterans’ Appeals decision denied service connection for asthma. A July 1998 rating decision denied service connection for bronchial asthma because the Veteran had not submitted new and material evidence. The Veteran was notified of that decision in July 1998 and did not perfect a timely appeal. Thus, the decision became final. An April 2015 rating decision found that new and material evidence had not been submitted to reopen a claim for service connection for asthma. The Veteran has submitted a statement from his mother from December 2014 that states that the Veteran did not have asthma prior to service and treatment records dating back to October 2000. The written statement from the Veteran’s mother from December 2014 contains the exact same information as the written statement by the Veteran’s mother in November 1976, and thus is found to cumulative and not to contain new and material evidence. The treatment records received since the July 1998 rating decision support a current diagnosis of asthma but do not suggest, establish, or support the conclusion that the Veteran’s asthma was aggravated beyond the natural progression of the disorder during active service. The Veteran’s newly submitted statements reiterate the previously considered assertion that the Veteran did not have asthma prior to service. Therefore, those statements merely reiterate contentions that were previously considered by the RO in the July 1998 decision. Thus, those statements are cumulative and are not new and material evidence. The Board finds the evidence added to the claims file since the July 1998 RO decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates or suggests that the Veteran’s pre-service diagnosis of asthma was aggravated beyond the natural progression of the disease by active service, which was the basis for the prior determination. The Veteran’s lay statements are redundant of the evidence previously considered, and the medical reports do not relate to asthma aggravation by the Veteran’s active service or contain competent new evidence to rebut the finding that asthma preexisted service. As the information provided in support of the application to reopen the claim for service connection for asthma does not include new and material evidence, the appeal as to that issue remains denied and the claim is not reopened. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk