Citation Nr: 20009844 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-50 256 DATE: February 6, 2020 ORDER New and material evidence not having been received, the petition to reopen a claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune is denied. FINDINGS OF FACT 1. In an July 2014 rating decision, for which no appeal was completed, the RO denied the Veteran’s claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune. 2. Evidence added to the record since the July 2014 RO decision does relate to an unestablished fact necessary to substantiate the claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune and does not raise a reasonable probability of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2014 decision disallowing service connection for esophagal cancer due to water contamination exposure at Camp Lejeune is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1968 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune and that claim remained denied. Reopening Service Connection for esophagal cancer due to water contamination exposure at Camp Lejeune Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Therefore, the issues in this case is whether a prior decision regarding service connection for esophagal cancer due to water contamination exposure at Camp Lejeune is final, and, if so, whether new and material evidence has been received to reopen the claim. Regardless of the RO’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA initially received the Veteran’s claims of entitlement to service connection for esophagal cancer due to water contamination exposure at Camp Lejeune in January 2014. The RO denied the claims in the July 25, 2014 decision and the Veteran was notified of that decision in a letter mailed July 28, 2014. In a letter dated July 30, 2014, the RO informed the Veteran that it had received his written disagreement of the decision of July 28, 2013. There is no July 28, 2013 decision or notice of decision in the claims file. Regardless, on September 10, 2014, the RO sent to the Veteran a statement of the case on the esophageal cancer issue with instructions as to how to complete his appeal by submitting an enclosed VA Form 9. No VA Form 9 was received within the proper time period. Hence, the July 2014 decision is final. See 38 C.F.R. §§ 20.202, 20.1103. The RO denied the claim for entitlement to service connection for esophagal cancer due to water contamination exposure at Camp Lejeune on the basis that this disability neither occurred in nor was caused by service. See 38 C.F.R. §§ 20.202, 20.1103. New and material evidence is therefore required to reopen the claim of service connection. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In December 2016, the Veteran submitted a request to reopen his claim for esophagal cancer due to water contamination exposure at Camp Lejeune. In January 2017, the RO denied reopening the claim for service connection for esophagal cancer due to water contamination exposure at Camp Lejeune and the Veteran was notified of that decision in a letter that same month. The RO denied the claim on the basis that no new and material evidence was submitted. The Veteran submitted a NOD in February 2017. A statement of the case (SOC) was issued in August 2017, and the Veteran perfected his appeal in September 2017. The evidence received since the July 2014 RO decision includes VA treatment records showing a diagnosis of squamous cell carcinoma. That the Veteran had squamous cell carcinoma was noted in the September 2014 statement of the case. This is not new and material evidence. Accordingly, the Board concludes that the criteria for reopening a claim of service connection for esophagal cancer due to water contamination exposure at Camp Lejeune have not been met. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.