Citation Nr: 20009635 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 13-09 186A DATE: February 5, 2020 ORDER New and material evidence has not been presented, and the claim of entitlement to service connection for gastroesophageal reflux disease (GERD) (now claimed as esophagus injury with residual swallowing condition). FINDINGS OF FACT 1. An unappealed April 2008 rating decision denied service connection for GERD claimed as difficulty swallowing. 2. Evidence submitted since the April 2008 rating decisions are either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for GERD (now claimed as esophagus injury with residual swallowing condition. CONCLUSIONS OF LAW 1. The April 2008 rating decision which denied service connection for GERD claimed as difficulty swallowing is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for esophagus injury with residual swallowing condition. 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 Marine Corps from June 2003 to February 2004 and June 2006 to May 2007. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a September 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). In May 2017, the Board remanded the issue for further development. New and Material Evidence New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. New and material evidence has not been presented, and the claim of entitlement to service connection for esophagus injury with residual swallowing condition is not reopened. The Veteran’s original claim for service connection for GERD (claimed at the time as difficulty swallowing) was denied in an April 2008 decision based on no diagnosis of the claimed condition which could be linked to service. Notably, that decision cited the Veteran’s failure to report to his scheduled examination. The April 2008 rating decision was not appealed and new and material evidence was not received within a year. The rating decision thereby became final. The Veteran’s claim to reopen was received in December 2010. The September 2011 rating decision continued the previous denial of service connection for GERD claimed as esophagus injury. Since the April 2008 decision, no new evidence has been received to show that the Veteran’s esophagus injury with residual swallowing condition is related to service. Critically, in compliance with the Board’s prior remand, VA arranged for a fee basis examination in May 2019 which the Veteran failed to report and failed to explain his absence. The record clearly reflects notification was sent in April 2019, and the record does not indicate any correspondence was returned undelivered. To that end, the Board observes that individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. 38 C.F.R. § 3.327(a). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The Board also notes that the additional medical information of record since the April 2008 rating decision have no bearing or relation to the specific matter under consideration, as they do not provide any indication that the Veteran’s claimed esophagus injury with residual swallowing condition is related to service. Therefore, these records are not material as it does not relate to any unestablished fact necessary to substantiate the claim. Consequently, the Board finds that new and material evidence has not been presented, and the claim for entitlement to service connection for esophagus injury with residual swallowing condition, cannot be reopened. 38 C.F.R. § 3.156(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.