Citation Nr: 22011600 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 14-08 277 DATE: March 1, 2022 ORDER New and material evidence having not been received, the petition to reopen the claim for entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACTS 1. In a May 2005 decision, the Board denied entitlement to service connection for cause of the Veteran's death. The decision became final. 2. Evidence associated with the record since the issuance of the May 2005 Board decision is cumulative or redundant and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death is denied. CONCLUSIONS OF LAW 1. The May 2005 Board decision is final with respect to the appellant's claim to establish service connection for cause of the Veteran's death. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received sufficient to reopen claim of entitlement to service connection for establish service connection for cause of the Veteran's death. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in United States Navy from July 1977 to June 1980. The Veteran's discharge from service for the period of December 1980 to October 1984 is considered dishonorable for VA purposes. The Veteran died in November 1999 and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant was scheduled for a virtual hearing in January 2022. A notice of the hearing was sent in November 2021. The appellant did not appear for this scheduled hearing, has not offered good cause for her failure to appear and has not requested that the hearing be rescheduled. Therefore, her hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). New and material evidence having not been received, the petition to reopen the claim for entitlement to service connection for the cause of the Veteran's death is denied. The Board denied the appellant's claim for service connection for the cause of the Veteran's death in a May 2005 decision, finding there was no medical evidence for the appellant's assertions that the Veteran's psychiatric symptoms and alcoholism that began in service related to the Veteran's cause of death. Evidence considered in this decision included the Veteran's death certificate, service treatment records, service personnel records and lay statements. The appellant was provided notice of this decision and her appellate rights in a May 2005 letter. The appellant sent a May 2005 correspondence disagreeing with the Board's decision. The appellant was provided another notice in July 2005, that the Board's decision was final, but that she could appeal the claim at the United States Court of Appeals for Veterans Affairs (CAVC). In July 2005, the Board prepared a Certification List for CAVC, but based on a review of the CAVC website, the appellant did not appeal the case to CAVC. There is otherwise no indication that the appellant appealed the Board's May 2005 decision. Therefore, the Board decision is final. The appellant filed to reopen her claim for entitlement to service connection for cause of the Veteran's death in July 2013. Evidence received since the May 2005 Board decision includes lay statements from the appellant. The May 2005 Board decision denied entitlement to service connection for cause of the Veteran's death as he did not have a service-connected disability at the time of death and that his psychiatric condition and alcoholism was not related to his death. Accordingly, in order to reopen the Veteran's claim, new and material evidence pertinent to this basis must have been received since the May 2005 Board decision. The evidence received since May 2005 Board decision includes lay statements from the appellant which are duplicative or redundant of evidence previously considered by the Board. Although the Veteran's service treatment records appear to have been scanned into the record in approximately November 2014, the service treatment records were contained in the record at the time of the May 2005 Board decision. The Veteran's service treatment records were analyzed in the May 2005 Board decision to great length, with the Board concluding that the claim should be denied. Thus, the evidence is not deemed new or material. See 38 C.F.R. § 3.156(c). In essence, the appellant has not submitted any evidence that was not considered during the May 2005 Board decision. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement to service connection for the cause of the Veteran's death. Accordingly, the petition to reopen the claim of entitlement to service connection for the cause of the Veteran's death is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. \ KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.