Citation Nr: A19001539 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 190318-25980 DATE: September 24, 2019 ORDER The request to reopen a previously denied claim for service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran did not appeal an April 2015 rating decision which denied service connection for COPD, and evidence received since then is not new and material. CONCLUSION OF LAW The April 2015 rating decision denying service connection for COPD is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from October 1968 to October 1971. The Board notes that the rating decision on appeal was issued November 9, 2018. In March 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). Because the Veteran selected Direct Review, his appeal will be decided based on the evidence of record on the date the decision being appealed was issued. In April 2015, the RO notified the Veteran that his claim for service connection for COPD was denied. Because the Veteran did not file a timely appeal, the decision became final. Generally, a claim that has been denied by an unappealed rating decision may not thereafter be reopened. 38 U.S.C. § 7104(b). An exception exists for the presentation of new and material evidence. An unappealed Board decision must be re-opened when new and material evidence is presented or secured with respect to a claim, and the former disposition must be reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means 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 must raise a reasonable possibility of substantiating the claim, considering the reason why the claim had previously been denied. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The April 2015 rating decision states the Veteran had established that he currently had COPD, but the evidence showed his COPD had not been incurred in service and was not otherwise due to his service. Evidence raising a reasonable possibility of substantiating the claim would have to be evidence relevant to (1) whether the Veteran had COPD in service; or (2) whether the Veteran’s COPD is somehow due to his service. Between April 2015, when the original rating decision was issued, and November 9, 2019 when the Veteran’s request to reopen his claim for service connection was denied, the following records have been added to the file: (1) 305 pages of treatment records from the Kennersville VA Clinic (January 2008 through February 2019); (2) 174 pages from the Social Security Administration concerning the Veteran’s application for disability insurance; and (3) 21 pages of Health Summaries from the Salisbury VA medical center (VAMC) (October 2014). The Board finds that the records, although new, are not material because they do not relate to an unestablished fact. Instead, the records are additional records confirming that the Veteran currently has COPD. They are not new evidence establishing a nexus between his COPD and his military service. The Veteran’s request to reopen his claim for service connection for COPD is denied. The Board would further note that the Veteran filed a Form 9 in March 2019 in which he stated that the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to help the Veteran substantiate his claim. The Board has confirmed that, after the Veteran filed his original claim, on March 24, 2014, VA mailed the Veteran a letter advising him of evidence necessary to support his claim. Also, after the Veteran raised the issue of reopening the closed claim, on October 9, 2018, VA sent him a letter advising him that, to reopen his claim he would have to submit evidence that his COPD was incurred in or otherwise connected to his service. VA has complied with the VCAA. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Mucklow, 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.