Citation Nr: 18153151 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-11 934 DATE: November 27, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for hepatitis C. FINDINGS OF FACT 1. An unappealed June 2008 Board decision denied service connection for hepatitis C. 2. Evidence received since the June 2008 Board decision is cumulative or redundant of evidence at the time of the prior decision, and does not raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for hepatitis C. CONCLUSIONS OF LAW 1. The June 2008 Board decision denying the claim of entitlement to service connection for hepatitis C is final. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1979 to September 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran’s attorney cancelled his Board hearing. 38 C.F.R. § 20.704(e). New and material evidence has not been received to reopen the claim of entitlement to service connection for hepatitis C. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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). In a June 2008 Board decision, the Board denied the Veteran’s claim for service connection for hepatitis C based on lack of evidence relating his hepatitis C to active duty. The Veteran did not request reconsideration of the Board decision or appeal that decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the June 2008 Board decision is final. 38 U.S.C. §§ 7103, 7104(b); 38 C.F.R. § 20.1100. Evidence received since the June 2008 Board decision does not constitute new and material evidence in regards to the Veteran’s hepatitis C claim. Specifically, in deciding the merits, the Board previously considered the Veteran’s service treatment records (STRs), post-service treatment records, lay statements, the Veteran’s history of polysubstance abuse (alcohol, opiates, acid, marijuana, and intranasal cocaine with no documentation of intravenous drug use at any time), and the first treatment of the disease by a physician in 2000, in its conclusion that the Veteran’s hepatitis C did not have its onset in service or was otherwise related to service (including the Veteran’s non-credible claim that he engaged in unsafe/unprotected sex during service that could have caused his hepatitis C and his assertion that VA clinicians told him that hepatitis blood serologies indicated he had manifested the disease many years earlier during service, which is not documented anywhere in his claims file). The RO received the instant petition to reopen the claim in June 2014. The evidence received since the June 2008 Board denial includes the Veteran’s VA treatment records and lay statements. VA treatment records confirm a current diagnosis of hepatitis C, a fact which was not in dispute at the time of the January 2008 Board decision, and do not show the Veteran’s hepatitis C was incurred in or otherwise related to service. To the extent the Veteran asserts that his hepatitis C is due to active service, such statements are cumulative and redundant of evidence already of record at the time of the prior Board decision. See, e.g., February 2015 Notice of Disagreement. Therefore, the new evidence does not create a reasonable possibility of substantiating the Veteran’s claim nor does it trigger VA’s duty to assist by obtaining medical opinions or an examination; and therefore, the new evidence is not material. Notably, the Veteran’s attorney has not submitted any argument on the Veteran’s behalf. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the threshold has not been met and the previously denied claim of entitlement to service connection for hepatitis C is not reopened because new and material evidence has not been submitted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Accordingly, as the preponderance of the evidence is against reopening the claim, the benefit of the doubt doctrine is not applicable in the instant case, and the appeal is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel