Citation Nr: 18161301 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-11 579 DATE: December 31, 2018 ORDER New and material evidence having not been received, the claim to reopen a claim for injuries sustained in a May 17, 1973, automobile accident not incurred in the line of duty is denied. FINDINGS OF FACT 1. An August 1974 administrative decision denied the Veteran’s claim for service connection for injuries sustained in a May 17, 1973, automobile accident on the basis that the injuries were not incurred in the line of duty and were due to willful misconduct. The Veteran did not appeal that decision and therefore, it became final. 2. Evidence received since the August 1974 administrative decision, by itself or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for injuries sustained in a May 17, 1973, automobile accident. CONCLUSIONS OF LAW 1. The August 1974 administrative decision that denied the Veteran’s claim for service connection for injuries sustained in a May 17, 1973, automobile accident is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the Veteran’s claim for service connection for injuries sustained in a May 17, 1973, automobile accident. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from July 1971 to May 1974. Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been received to reopen a claim for injuries sustained in a May 17, 1973, automobile accident not incurred in the line of duty Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, 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. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. The Veteran’s claim for service connection for injuries sustained in a May 17, 1973, automobile accident was denied in an August 1974 administrative decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The Veteran’s claim was denied at that time based on a finding that injuries that the Veteran sustained from the May 17, 1973, automobile accident were not incurred in the line of duty and were due to willful misconduct. At the time of the August 1974 denial, the competent evidence of record included the Veteran’s service-treatment records, military personnel records and civilian police reports outlining the May 17, 1973, automobile accident. See, August 1974 administrative decision. Since the filing of his claim to reopen the claim for entitlement to service connection for injuries sustained in a May 17, 1973, automobile accident, the Veteran has submitted post-service treatment records which indicate ongoing treatment for residuals of the injuries sustained in the accident. However, none of the evidence that the Veteran has submitted relates to a previously unestablished fact and does not provide a reasonable possibility of substantiating the claim. Therefore, the Board finds that the claim for entitlement to service connection for injuries sustained in a May 17, 1973, automobile accident is not reopened as new and material evidence has not been received. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel