Citation Nr: 20043035 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 14-05 568 DATE: June 25, 2020 ORDER As new and material evidence has not been received, the petition to reopen a claim of entitlement to service connection for a lower back disability is denied. As new and material evidence has not been received, the petition to reopen a claim of entitlement to service connection for squamous cell carcinoma is denied. FINDINGS OF FACT 1. In an August 2009 rating decision, claims of entitlement to service connection for a lower back disability and squamous cell carcinoma were denied. In August 2009 the Veteran submitted a notice of disagreement. In February 2010 the RO furnished a statement of the case. The Veteran perfected an appeal to the Board by submitting a VA Form 9 in April 2010. However, he withdrew his appeal in December 2010. 2. New evidence has not been received since the August 2009 rating decision that relates to an unestablished fact necessary to substantiate his claims. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.1103. 2. New and material evidence has not been received since the August 2009 rating decision. As such, the petition to reopen his claims is denied. 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 from January 1965 to January 1968 and in the National Guard from June 1978 to December 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was previously before the Board in November 2015 and November 2018, on which occasions the claims were remanded. The Veteran presented testimony at a Board hearing in August 2014. A transcript of the hearing is associated with his claims folder. New and Material Evidence Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. As new and material evidence has not been received, the petition to reopen a claim of entitlement to service connection for a lower back disability is denied. 2. As new and material evidence has not been received, the petition to reopen a claim of entitlement to service connection for squamous cell carcinoma is denied. In the present case, the Veteran’s claims of service connection for a lower back disability and for squamous cell carcinoma were denied in an August 2009 rating decision. In August 2009, the Veteran submitted a notice of disagreement with the rating decision. Together with his notice of disagreement, he submitted a lay statement, in which he asserted that he injured his back after slipping in grease. He further asserted that his squamous cell carcinoma was related to exposure to herbicide agents while serving at Fort Polk. (8/21/2009, Statement in Support of Claim, p. 1). In February 2010 the RO furnished a statement of the case, in which the August 2009 rating decision was upheld. In rendering the statement of the case, the RO considered the Veteran’s aforementioned contentions. In response to the February 2010 statement of the case, the Veteran submitted a VA Form 9, thereby perfecting an appeal to the Board. However, in December 2010 the Veteran withdrew all his claims. In August 2011 the Veteran filed an informal petition to reopen his claim of service connection for a lower back disability and for squamous cell carcinoma. In support of his claims, the Veteran submitted a lay statement in March 2012 and participated in a Board hearing in November 2014. In the statement, the Veteran indicated that he injured his back after slipping on grease while working in the motor pool. Additionally, he asserted that his squamous cell carcinoma was caused by exposure to herbicide agents while stationed at Fort Polk, Louisiana. (3/27/2012, Correspondence, p. 1). During the November 2014 Board hearing, the Veteran reiterated his contentions that he injured his back after slipping in grease and that he was exposed to defoliants while stationed at Fort Polk, Louisiana. (11/4/2014, Hearing Transcript, p. 3, 20). After a review of the claims file, the Board finds that the evidence received in conjunction with the petition to reopen a claim for entitlement to service connection for a lower back disability and for squamous cell carcinoma is not new and material, and does not serve to reopen the claim for service connection. In this regard, while the Veteran did submit a lay statement and participate in a Board hearing, the evidence provided was wholly redundant of the evidence previously considered by the RO. In rendering this decision, the Board acknowledges that since the last final August 2009 rating decision, the Veteran submitted lay evidence asserting that he injured his back after slipping in grease and was exposed to herbicide agents after the August 2009 rating decision. While these assertions were not considered in the August 2009 rating decision, they were directly responded to by the RO in the February 2010 statement of the case. Therefore, such evidence was adjudicated in association with the prior final decision. In sum, the Board finds that the evidence received in conjunction with the petition to reopen a claim for entitlement to service connection for a lower back disability and for squamous cell carcinoma is not new and material and does not serve to reopen the claim for service connection. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt rule is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.