BVA Case 91-1591: Back

That decision indicated that evidence had been "received subsequent to rating action dated[] 12-12-85" and that "[t]his evidence does not warrant change in service- connected status or evaluation of any disability or contain any new and material evidence relevant to the question at issue which was not on file when the previous decision was made.

In May 1990, the Hearing Officer issued a decision denying the claim on the grounds that the veteran had not participated in a radiation-risk activity for purposes of section 1112(c) and that "[t]he claimant has submitted no new and material evidence in support of her claim, and, in the absence of clear and unmistakable error on the part of the local rating activity, the denial of service connection for cause of death must be affirmed.

he prior unappealed denial on her reopened claim and the need to establish a new factual basis with new and material evidence which would warrant allowance.

The SSOC stated that "the original denial of service connection for cause of death was promulgated in 1985, contains no clear and unmistakable error, and[,] when you did not file a formal appeal, became final in 1986"; the SSOC further stated that the claimant had not submitted new and material evidence.

The Board concluded that the section 1112(c) presumption of service connection was inapplicable because the veteran had not participated in any "radiation-risk activity" as defined in the statute.

In her brief on appeal to this Court and supplemental brief filed pursuant to a July 1, 1993, order of the Court, and at oral argument, the appellant asserts that the Board erred in failing to consider the issue of the veteran's entitlement to service connection, without regard to the statutory presumption in section 1112(c), under other generally applicable statutory and regulatory provisions governing service connection.

Rather, the express language of that decision and the January 1991 SSOC explaining it stated that the RO had concluded that there was no new and material evidence with respect to the claim that had been denied in the December 1985 RO decision and that that RO decision was, therefore, "confirmed".

tion exposure in service or that the 1985 RO denial of service connection was confirmed and that no new and material evidence to reopen that claim had been received since that decision.