Citation Nr: 18153658 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-30 988 DATE: November 28, 2018 ORDER New and material evidence not having been received, the petition to reopen a claim of service connection for fibrous dysplasia is denied. FINDING OF FACT 1. In a March 1989 decision, the RO denied service connection for fibrous dysplasia; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. Evidence added to the record since the March 1989 decision denying service connection for fibrous dysplasia, does not relate to an unestablished fact necessary to substantiate that claim and does not raise a reasonable possibility of substantiating that claim. CONCLUSION OF LAW 1. The March 1989 RO decision that denied service connection for fibrous dysplasia is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2018). 2. The criteria for reopening a claim of entitlement to service connection for fibrous dysplasia have not all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to November 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Whether new and material evidence has been received to reopen a claim of service connection for fibrous dysplasia Prior to the filing of the current claim of entitlement to service connection fibrous dysplasia, the AOJ previously denied a claim of service connection for fibrous dysplasia in March 1989. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (1989). At the time of the 1989 denial, an NOD was a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (1989). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (1989). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2018). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (1989). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32. Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The March 1989 rating decision denied service connection for fibrous dysplasia because the Veteran’s service record contained no evidence of this condition. Her in-service complaints of pain were attributed to proven disorders and she had no other unexplained symptoms. X-rays in service showed mild scoliosis of the lumbar spine and normal right hip. Fibrous dysplasia was not shown in service of in the years since and it was not shown to be related to a service connected condition. The evidence received since the March 1989 rating decision includes evidence of a current diagnosis of fibrous dysplasia, lay statements corroborating the Veteran’s complaints of chronic pain since service, and the Veteran’s lay statements that she had had fibrous dysplasia since birth and it should have been discovered on her entrance examination. The additional medical evidence confirming a current diagnosis of fibrous dysplasia is redundant of the evidence in existence at the time of the March 1989 denial, including the September 1988 bone scan results confirming fibrous dysplasia. Likewise, the March 1989 rating decision accepted the Veteran’s account of pain, but rejected its attribution to fibrous dysplasia. Thus, the lay evidence of chronic pain is repetitive of the Veteran’s March 1989 statement that her ongoing pain since service was a symptom of this disability. Finally, the March 1989 rating decision denied service connection in part because there was showing of an in-service incurrence or aggravation of a disease or injury; the Veteran’s assertion that her fibrous dysplasia has existed since birth and should have been discovered during her military service is not evidence of an in-service incurrence or aggravation. As such, this new evidence does not relate to an unestablished fact that may provide a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for fibrous dysplasia have not been met. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel