Citation Nr: 21025998 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-33 797 DATE: April 29, 2021 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a left shoulder disability. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left shoulder disability was previously considered and denied by an August 1984 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. The additional evidence received since that August 1984 rating decision does not relate to an unestablished fact necessary to substantiate this claim for service connection for a left shoulder disability and does not raise a reasonable possibility of substantiating this claim.   CONCLUSIONS OF LAW 1. The August 1984 rating decision previously considering and denying service connection for a left shoulder disability is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has not been received since that decision to warrant reopening this claim for service connection for a left shoulder disability. 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 May 1979 to February 1984. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his July 2016 VA Form 9, Substantive Appeal to the Board, the Veteran requested a hearing before the Board. In subsequent written correspondence received in September 2019, however, the Veteran, through his attorney, withdrew his hearing request. 38 C.F.R. § 20.704(e) (2018). New and material evidence has not been received to reopen the claim for service connection for a left shoulder disability This claim originally was considered and denied in an August 1984 rating decision. The RO duly notified the Veteran of that decision and of his appellate rights. He did not appeal that decision and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that August 1984 rating decision became final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b) and (c), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 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. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed – unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The August 1984 rating decision denied the claim for service connection for a left shoulder disability based on a finding that there was no then current left shoulder disability, so no disability to in turn relate or attribute to the Veteran’s service in the military. Evidence added to the record since that August 1984 final and binding denial of this claim includes a written statement from the Veteran’s attorney and a medical treatment record showing the Veteran fell in 2012 and injured his left shoulder. In the written statement, the Veteran’s attorney argues that the Veteran had pain in this shoulder prior to that September 2012 fall and, thus, believes he had a preexisting injury with residuals from service that was exacerbated by (rather than caused by) that September 2012 fall. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence that was at the time of the August 1984 rating decision. However, this additional evidence is not material in that it does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability. Specifically, this claim was denied in August 1984 because there was no evidence of any then current left shoulder disability or at the time of the Veteran’s separation from service earlier that year, in February 1984. The September 2012 fall (“intercurrent” injury) and written statement concerning it do not tend to show there was a left shoulder disability much earlier, in 1984, when this claim originally was denied and contemporaneous to the Veteran’s time in service. Further, the Veteran’s attorney quoted a February 2013 VA treatment record that states, “52-year old male with long history of pain in his left shoulder.” Again, though, this does not show that any left shoulder disability and consequent pain existed at the time of the August 1984 denial of this claim or in relation to or because of the Veteran’s service. Thus, the evidence does not raise a reasonable possibility of substantiating the claim. Since the evidence is not material, the claim for service connection for a left shoulder disability is not reopened. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.