BVA Case 11-0243: Back

HOLDAWAY, Judge :The appellant appeals the September 28,2010,decision of the Board of Veterans'Appeals (Board)that determined that new and material evidence had not been received to reopen his claim for service connection for bilateral upper extremity peripheral neuropathy, claimed as secondary to Agent Orange exposure and denied entitlement to service connection for right lower extremity peripheral neuropathy,claimed to be due to Agent Orange exposure.

In March 2005,the RO determined that new and material evidence had not been presented to reopen the appellant's claim for service connection for bilateral upper extremity neuropathy and denied service connection for peripheral neuropathy of the right hip and legs.

On September 28,2010,the Board issued its decision in which it determined that new and material evidence had not been presented to reopen the appellant's claim for service connection for peripheral neuropathy of the upper extremities claimed as secondary to exposure to herbicides and denied service connection for peripheral 2 neuropathy of the right lower extremity,also claimed as secondary to exposure to herbicides.

5108, [i]f 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 and material evidence is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers.

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.

The Board's determination of whether new and material evidence was submitted is reviewed under the clearly erroneous'standard of review.

A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.