Citation Nr: 18161154 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-08 799 DATE: December 28, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for human immunodeficiency virus (HIV) is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Air Force from January 1976 to January 1982. 2. A final March 1998 rating decision denied entitlement to service connection for HIV; evidence received since that time does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for HIV. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION Currently, the Veteran is seeking to reopen a service connection claim for HIV. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). 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). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, this claim was denied in a March 1998 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the March 1998 rating decision became final. The Veteran subsequently requested to reopen the claim in January 2016. As such, the Board must now determine whether new and material evidence has been submitted since the final rating decision sufficient for the claim’s reopening. To that end, the March 1998 rating decision identifies the evidence considered as the Veteran’s service treatment records (STRs). Evidence added to the claims file since then includes VA treatment records through September 2018. It would also appear that an updated copy of the Veteran’s STRs has been added to the claims file since March 1998. In interpreting this in the light most favorable to the Veteran, the Board finds that both the VA treatment records and additional STRs are new because they were not of record at the time of the final March 1998 rating decision. However, the new evidence does not raise a reasonable possibility of substantiating the claim. In March 1998, the claim was denied upon the Regional Office’s (RO) determination that the Veteran’s STRs did not demonstrate an in-service diagnosis of HIV or the treatment thereof. The newly submitted evidence similarly fails to establish that the Veteran was diagnosed with or treated for this condition during service. See 38 C.F.R. § 3.156(c). The evidence is further silent for any in-service exposure, nor has the Veteran identified any such exposure during the pendency of this appeal. Instead, VA treatment records establish that the Veteran was diagnosed with HIV in 1985, several years following his exit from service. Thus, the new evidence is not material. In reaching this conclusion, the Board has considered the Veteran’s generic contention that his HIV is related to service. However, he lacks the medical expertise to provide a competent medical diagnosis or etiological opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, his opinion does not qualify as material evidence sufficient for the reopening of this claim. In the absence of evidence that is both new and material, the appeal seeking to reopen the HIV claim is thus denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel