Citation Nr: 18158467 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-53 642A DATE: December 18, 2018 ORDER The application to reopen the Veteran’s service-connection claim for tuberculosis is denied. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) last denied the Veteran’s application to reopen his service-connection claim for tuberculosis in a January 2010 rating decision. The Veteran did not appeal this decision, nor did he submit additional evidence within one year of notification of this decision. 2. The evidence added to the record since the January 2010 rating decision does not relate to an unestablished element of the claim or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). 2. Since January 2010, new and material evidence has not been received by VA sufficient to reopen the Veteran’s service-connection claim for tuberculosis. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to July 1987. The Board initially notes that since the AOJ last adjudicated the appeal in an October 2016 Statement of the Case and prior to certification to the Board, additional VA treatment records have been associated with the claims file dated through June 2017. The Board has reviewed these records, and notes that those dated from October 11, 2016 to June 2017 are the only records added to the file that were not previously reviewed by the AOJ. Records added to the file during this recent date range are not relevant to the appeal, as they do not concern treatment for a respiratory disability. As such, they need not be referred to the AOJ for consideration in the first instance. See 38 C.F.R. § 19.37. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If new and material is received prior to the expiration of the appeal period, it will be considered as having been filed with the claim that was pending at the beginning of the appeal period, and the denial will not be considered final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For claims to open that are received on or after August 29, 2001, as in this case, 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether new and material evidence has been received, the evidence is presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The claim of entitlement to service connection for tuberculosis (claimed as PPD Converter (inactive tuberculosis), and tuberculosis due to Agent Orange exposure) was originally denied by the AOJ in January 2007. The AOJ denied the claim based on a finding that no current tuberculosis disability existed. The Veteran did not appeal this determination, nor did he submit new and material evidence within one year. This decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). The Veteran filed an application to reopen this claim in November 2009. In a January 2010 rating decision, the AOJ denied the Veteran’s application to reopen, noting that new and material evidence had not been received showing the presence of a current disability. The AOJ notified the Veteran that the Veteran’s positive PPD converter test during service is considered to be a laboratory finding, and not a disability, and that since his last denial, VA treatment records continued to show no treatment for, or diagnosis of an actual tuberculosis disability. The Veteran did not appeal this determination, nor did he submit new and material evidence within one year. This decision is also final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018). The Veteran filed a second application to reopen his claim in October 2014. In a January 2015 rating decision, the AOJ denied the Veteran’s application to reopen, again finding that additional evidence associated with the claims file failed to show the presence of a current disability. The Veteran disagreed and perfected this appeal. Since January 2010, VA treatment records have been added to the Veteran’s claims file, but they do not indicate the presence of a tuberculosis disability. In fact, the VA treatment reports added to the file confirm (1) that the Veteran’s prior medical history includes a positive purified protein derivative (PPD) test during service [a fact already shown in service records previously of record], and (2) that he has no active tuberculosis disability. See a July 8, 2016 VA Primary Care report; see also a February 6, 2016 Surgery Note (indicating “inactive TB”). The Veteran has submitted no additional evidence or argument in support of his tuberculosis claim, other than asserting generally that VA failed to properly evaluate his claim. Given the cumulative nature of the newly-submitted evidence, the Board finds that the new evidence does not raise a reasonable possibility of substantiating the claim, or trigger the need to further develop the Veteran’s claim. Shade, 24 Vet. App. at 117-18. Accordingly, new and material evidence has not been received, and the Veteran’s claim is not reopened. 38 C.F.R. § 3.156(a). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel