Citation Nr: 19151123 Decision Date: 07/02/19 Archive Date: 07/01/19 DOCKET NO. 18-45 966A DATE: July 2, 2019 ORDER The petition to reopen the previously denied claim of entitlement to service connection for colon cancer, is denied. FINDINGS OF FACT 1. An unappealed March 2012 rating decision (for which the Veteran received notification in April 2012) denied service connection for colon cancer on the basis that the evidence did not show an event, disease or injury in service and the evidence did not provide a link between the Veteran’s service and his colon cancer. 2. Evidence received since the March 2012 rating decision and April 2012 notification letter includes additional medical records addressing the Veteran’s colon cancer, but it does not pertain to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The March 2012 rating decision and April 2012 notification letter that denied service connection for colon cancer is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received pertaining to colon cancer since the March 2012 rating decision and April 2012 notification letter is not new and material, and the claim of entitlement to service connection for colon cancer is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1967 to August 1969. The Veteran passed away in April 2018. The Appellant, his widow, was granted her request for substitution in January 2019. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for colon cancer. Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claim for service connection for colon cancer was previously denied in a March 2012 rating decision; he was notified of this decision in April 2012. The Veteran neither submitted new and material evidence nor a notice of disagreement within a year of that decision; therefore, the March 2012 rating decision and April 2012 notification letter is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. At the time of the Veteran’s prior claim for service connection for colon cancer, he submitted a February 2012 Statement in Support of Claim, in which he claimed his colon cancer was due to Agent Orange. The prior final denial denied the claim because there was no evidence that showed an event, disease, or injury, in service and because there was no evidence of a link between the Veteran’s medical condition and military service. The RO explained that colon cancer was not one of the chronic diseases that VA presumes to be related to the Veteran’s military service. The Veteran filed a new claim for service connection for colon cancer in September 2016. The additional evidence received subsequent to the April 2012 rating decision includes VA treatment notes and private treatment notes received in March 2013, May 2013, October 2016, November 2016, January 2017, February 2017, March 2017, April 2017, May 2017, and October 2018. These records confirm the Veteran’s diagnosis of colon cancer and document his treatment for this condition. While this evidence is new, it is not material. The newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. None of the evidence submitted shows an event, disease, or injury in service. In particular, the newly received treatment records do not show how the Veteran’s colon cancer is related to his Agent Orange exposure in service. They also do not show that his colon cancer is related to any other incident from the Veteran’s service. The evidence received does not raise a reasonable possibility of substantiating the claim. Hence, reopening must be denied. See 38 C.F.R. § 3.156(a). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.