Citation Nr: 1301317 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-36 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether there is new and material evidence to reopen a claim of service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from June 1962 to November 1963. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. A claim to reopen the issue of entitlement to service connection for a lumbar spine disorder was denied in January 2004. The Veteran was notified of this decision, but did not appeal. 2. Evidence presented since the January 2004 decision does not raise a reasonable possibility of substantiating the claim of service connection. CONCLUSIONS OF LAW 1. The January 2004 decision denying the the claim to reopen the issue of entitlement to service connection for a lumbar spine disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for a lumbar spine disorder is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by the RO, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in December 2007. The Board acknowledges that the letter did not inform the Veteran of the correct date of the most recent final decision; rather, it reported the date of the final decision as February 1970. Although the Veteran received inadequate notice, the record reflects that the purpose of the notice was not frustrated. The December 2007 letter described the reasons for the previous denials, and the record indicates that the claims have been denied for the same reason since the initial denial in February 1970, i.e., the lack of probative evidence of a link between the lumbar spine disorder and service. Thus, based on the record as a whole, the Board finds a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his application to reopen, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. VA assisted the Veteran in obtaining evidence and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file, and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Claims of service connection for a lumber spine disorder were previously denied, most recently by the RO in a January 2004 decision. The January 2004 decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, a claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). 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. 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. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The basis for the previous claims were denied because, although the evidence documented an in-service injury to the back and findings of a post-service lumbar spine disorder, the probative evidence did not indicate that the lumbar spine disorder was incurred in service or causally related to service, to include the reported injury. Evidence considered at the time of the prior decisions included service and post-service medical records, opinions from medical professionals, and histories from the Veteran of injuries during service and low back pain during and since service. Evidence associated with the record in conjunction with the claim to reopen consisted mainly of duplicative records. The record includes "new" evidence in the form of statements from the Veteran and VA treatment records. However, this evidence is not material because it fails to cure the defects presented by the previous decisions, namely the lack of probative evidence that the lumbar spine disorder is related to service. The new evidence is cumulative of previously considered evidence, which already reflected the nature and severity of the lumbar spine disorder and revealed histories of injuries and treatment during service and symptoms since service. The Veteran contends that the new evidence is material, particularly the July 2007 VA x-ray report which the Veteran states shows an old healed compression fracture at L1 and L2. The x-ray report reveals findings of wedging at L1 and L2; however, it does not suggest the wedging is related to the Veteran's active military service, to include any injury therein. As such, the x-ray report is not material evidence. In sum, the evidence submitted since the last final denial does not raise a possibility of substantiating that the lumbar spine disorder is related to service, either through date of onset or causation. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the evidence submitted to reopen the claim of entitlement to service connection for a lumbar spine disorder is not new and material, and therefore, the claim is not reopened. ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a low back disorder, and the appeal is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs