Citation Nr: 20009801 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-40 784 DATE: February 5, 2020 ORDER The petition to reopen the claim of entitlement to service connection for lung disease, claimed as asbestosis, is denied. The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, characterized as major depressive disorder (MDD), is denied. FINDINGS OF FACT 1. In July 2007, the Board of Veterans’ Appeals (Board) denied service connection for lung disease and service connection for an acquired psychiatric disorder; the Veteran did not appeal the decision and has not claimed clear and unmistakable error in that decision. 2. Evidence received since July 2007 is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for lung disease and/or service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim seeking service connection for lung disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim seeking service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to February 1965. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, the Department of Veterans Affairs (VA) must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. Whether new and material evidence has been received to reopen the claims of entitlement to service connection for lung disease and service connection for an acquired psychiatric disorder, characterized as MDD The Veteran’s claims for service connection for lung disease, secondary to asbestos exposure, as well as service connection for MDD, secondary to a lung disability due to asbestos exposure, were initially denied in an October 2000 rating decision. In July 2007, the Board denied service connection for lung disease and an acquired psychiatric disorder as second to a lung disease as a result of exposure to asbestos. The July 2007 Board decision is final and the Veteran has not claimed that the decisions contain a clear and unmistakable error as to the findings of law or fact. 38 U.S.C. § 7104(b). The basis for the Board’s denial was that there was no evidence that the conditions are etiologically related to any incident in or manifestation during his active service. Since the last prior final decision, lay and medical evidence have been added to the record. In May 2019, during his Board hearing, the Veteran stated that he built buildings, poured concrete, and painted structures during active service. He did not recall dealing with asbestos subsequent to his active service, but noted that he worked in the construction trade for decades after service. In July 2017, the Veteran noted that construction materials he used during active service may have contained asbestos. A private treatment record from October 2017 noted development of mildly ground glass appearing right lung nodules. The reason for the prior final denial was that there was no evidence establishing the Veteran’s lung condition was caused by active duty service or second to asbestos exposure during active service. In other words, the nexus element was missing. Further, there was no evidence that the Veteran’s psychiatric disability was related to a service-connected disability. See, e.g., 38 C.F.R. § 3.310. The additional evidence that pertains to the Veteran’s lung condition and MDD is cumulative, and thus, not new, as it merely notes the same assertion that the Veteran’s lung condition and MDD is related to his military service. The evidence is not material because the evidence could not reasonably substantiate the claims were it to be reopened as the evidence does not have any tendency to show that his current lung condition or MDD is related to his service. There continues to be absent from the record any new, competent, and credible evidence suggesting that the Veteran’s current lung condition and MDD is related to his service or service-connected disability. See, e.g., 38 U.S.C. § 1131; 38 C.F.R. § 3.303. (Continued on the next page)   None of the additional evidence, even when considered in combination with the other evidence of record, is both new and material. Thus, this evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim. The prior denial is final, and the claim for service connection for a lung condition is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni, 5 Vet. App. 463 at 467 (1993). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.