Citation Nr: 1754726 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-05 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received sufficient to reopen the claim of service connection for a back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The March 2008 rating decision reopened the Veteran's prior claim of service connection for a back disorder and denied service connection. The Veteran filed a notice of disagreement (NOD) for the rating decision in December 2008. A statement of the case (SOC) was issued in December 2009, and the Veteran perfected his appeal in April 2010. The Veteran testified before the undersigned via video conference at a hearing in May 2017. A transcript of the hearing has been associated with the claims file. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue in this case is whether new and material evidence has been received to reopen the claim of service connection for a back disorder. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. A July 1985 Board decision denied the Veteran's claim of service connection for a back disability. 2. A March 2000 rating decision denied reopening of the claim of service connection for a back disability; the Veteran was notified of this decision in a March 2000 letter and did not file a notice of disagreement. 3. Additional evidence received since the March 2000 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The March 2000 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302, 20.11032 (2017). 2. New and material evidence has not been received since the March 2000 rating decision, and the claim of service connection for a back disability is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Prior to the receipt of the claim that led to the current appeal, the Board, in a July 1985 decision, denied the Veteran's appeal as to a claim of entitlement to service connection for a back disability. The only unestablished fact at the time of the July 1985 Board decision was the nexus between the Veteran's service and his current back disability. Unless the Chairman of the Board orders reconsideration of the decision, the Board decision is final on the date stamped on the face of the decision. See 38 C.F.R. § 20.1100 (2017). The record does not reflect that the Veteran filed a claim for reconsideration of the July 1985 Board decision, and as such the July 1985 Board decision is final. Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if 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 means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran submitted additional evidence relating to his back disability in April 1986. The RO issued an April 1986 rating decision finding that the evidence submitted was not new and material, and the RO notified the Veteran of that decision in May 1986. The Veteran submitted additional evidence relating to his back condition in September 1986. The RO found this evidence was not adequate to establish entitlement to a claim of service connection for a back disorder in a September 1986 rating decision, and the RO notified the Veteran of that finding in a September 1986 letter. The Veteran did not appeal the September 1986 rating decision. The Veteran also did not submit any statements relevant to this claim within one year of the September 1986 letter, which would render this decision non-final for VA purposes. 38 C.F.R. § 3.156(a). In January 2000, the Veteran again submitted new evidence relating to his claim of service connection for a back disability. A March 2000 rating decision denied the request to reopen the claim of service connection for a back disability as no new and material evidence had been submitted. The Veteran was notified of this decision in a March 2000 letter. The Veteran did not initiate an appeal of the March 2000 rating decision and it became final. The Veteran also did not submit any statements relevant to this claim within one year of the March 2000 letter, which would render this decision non-final for VA purposes. 38 C.F.R. § 3.156(a). As such, the March 2000 rating decision is the last final disallowance of this claim. The evidence before the VA at the time of the March 2000 decision consisted of the Veteran's service treatment records; private treating records from May 1969 through May 1986; a private opinion from A.W., M.D.; a private opinion from J.H., D.O.; the Veteran's lay assertions; buddy statements from R.S., P.S., S.S., and E.V.; and a lay statement from H.W. The evidence associated with the claims file following the March 2000 rating decision includes a July 2011 VA examination; duplicate copies of private medical records, new private medical records dated post-2000; VA medical records dated 2002 through 2017; SSA records; the Veteran's lay assertions; duplicate copies of buddy statements; and new buddy statements from D.R., H.D., and D.R. The evidence associated with the claims file since March 2000 does not relate to or raise a reasonable probability of establishing a nexus between the Veteran's service and current back disability. The July 2011 VA examination stated that the Veteran's back condition is less likely than not related to his military service. The examiner found no evidence of chronicity to his low back pain associated with military service. The examiner opined that it was more likely than not that his chronic low back pain started after his military service and was due to aging. As such, the examination does not raise a reasonable probability of establishing a nexus between his service and current back disability. The new private and VA medical records show continued treatment for a back disorder. These records affirm that the Veteran has a current disability. However, the existence of a current disability was established in the July 1985 Board decision. As this evidence does not relate to an unestablished fact necessary to substantiate the claim, it is not material. The numerous buddy statements submitted indicate that the Veteran sustained a fall from a truck in-service and that he reported back pain after the fall. However, the element of an in-service incurrence or aggravation of a disease or injury was established in the July 1985 Board decision. Buddy statements from E.V. and P.S. in the record at the time of the March 2000 rating decision discussed the Veteran's fall from a truck in-service. As such, buddy statements associated with the claims file since March 2000 are not material. Other than reiterating his previous assertions, the Veteran has not offered any additional evidence that reflects that his back disorder is related to his military service. The Board acknowledges that the Veteran testified at his May 2017 hearing that he had back pain in service and continuing problems with his back from July 1971, after the Veteran separated from service, forward. The Veteran stated that he went to a chiropractor weekly for his back after separation from service and had his first back surgery in 1978. However, this is a redundant assertion made prior to both the 1985 Board decision and the March 2000 rating decision. At the February 1985 hearing, the Veteran testified he had back pain in service and continued to have pain after service, for which visited the chiropractor numerous times between his separation from service and his back surgery in 1978. Of note, the record of chiropractor visits from 1969 through 1977 was in the claims file at the time of the July 1985 Board decision. As such, the Veteran's statements are redundant of those previously considered by the VA in adjudicating the Veteran's claim of service connection for a back disability. After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim of service connection for a back disability has not been received, and the claim may not be reopened. The majority of this evidence is new in that it was not previously before the Board. However, none of this evidence is material for purposes of reopening the service connection claim. Therefore the claim may not be reopened, and the appeal must be denied. There is no reasonable doubt to be resolved as to reopening the claim. ORDER New and material evidence has not been received to reopen the claim of service connection for a back disability, and therefore the appeal is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs