Citation Nr: 21071268 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-56 327 DATE: November 30, 2021 ORDER The application to reopen the claim for service connection for the cause of the Veteran's death is denied. FINDING OF FACT An April 2011 rating decision denied the claim for service connection for the cause of the Veteran's death. The evidence added to the record subsequent to the April 2011 decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence to reopen the claim of entitlement to service connection for the cause of the Veteran's death has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1958 to August 1962. The Veteran died in November 2010. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). A claim for service connection for the cause of the Veteran's death was denied in an April 2011 decision. The claim was denied because the record did not show that a cause of the Veteran's death was related to service or was caused, aggravated, or otherwise affected by a service-connected disability. The decision noted that the immediate cause of death was respiratory failure and the underlying cause of death was melanoma that had metastasized and determined that the causes of death, including the metastasized lung cancer, were not related to the in-service asbestos exposure and service-connected asbestosis. The appellant was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period. The evidence added to the record after the April 2011 rating decision includes statements from the appellant that are cumulative of previously considered arguments that the Veteran's melanoma was related to asbestos exposure in service. This argument is cumulative of previous statements in which the appellant made the same argument. The record also includes an October 2016 VA medical opinion that it was less likely than not that the Veteran's death was related to service, including the asbestos exposure and asbestosis. The Board finds the evidence submitted since the last unappealed denial is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and raise a possibility of substantiating the claim. Notably, the record is still absent new and material evidence of a link between a cause of the Veteran's death and service or a service-connected disability. Although the threshold for reopening a claim is low, it is a threshold nonetheless. Shade, 24 Vet. App. at 110. Thus, reopening of the claim is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.