Citation Nr: 1801622 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-24 688A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Marc D. Pepin, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from May 16, 1962, to July 26, 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A notice of disagreement was received in November 2012, a statement of the case was issued in June 2014, and a substantive appeal was received in July 2014. In May 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The record was held open for an additional 60 days (and another 60 days) to permit the submission of additional evidence. No evidence was received. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A December 1963 Board decision denied entitlement to service connection for a low back disability. 2. When considered by itself or in connection with the evidence previously assembled, the appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. CONCLUSION OF LAW New and material evidence has not been added to the record since the December 1963 Board decision; thus, the claim of entitlement to service connection for a low back disability is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duty to notify was satisfied by a letter that was sent to the Veteran in August 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see 38 U.S.C. §§ 511(a), 7103(a), 7104(a). No such exception to finality applies in this case, and the Veteran does not contend otherwise. Thus, the December 1963 Board decision denying service connection for a low back disability constitutes a final decision. Id; see generally Hayslip v. Principi, 364 F.3d 1321 (Fed. Cir. 2004). A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2017). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In the case at hand, the Veteran's claim of entitlement to service connection for a low back disability was denied by the Board in December 1963. The Board found that the Veteran's in-service back disorder was a congenital defect that existed prior to service. The Board found that no superimposed disease or trauma was demonstrated in service and that an increase in the preservice congenital condition was not shown during service. It therefore concluded that the Veteran's back defect existed prior to service and was not aggravated thereby. In making this determination, the Board considered numerous lay statements that were submitted in June 1963 from people who were testifying that they had not heard the Veteran report back problems prior to service and/or that the Veteran has had back problems ever since service. The Veteran's service treatment records were also of record. Also of record was a transcript of a September 1963 hearing at which the Veteran testified before a Compensation and Pension Board. At this hearing, he described pre-service back injuries that he had suffered, including in a coal mine and an automobile accident, but noted that his back was not bothering him at his time of entrance into service. He described his back giving him trouble when he was on the training range in service, including when he was carrying a heavy field pack. Also of record was a September 1963 doctor's opinion in which it was opined that the Veteran "has symptoms of a chronic lumbosacral instability that may be associated with the spina bifida occulta." Since the December 1963 Board decision, the only evidence that has been added to the record is an August 2012 personal statement and May 2017 Board hearing testimony. In his personal statement, he described the circumstances of his in-service training injury and reported that he sought treatment at the medical facility at Fort Gordon, Georgia. At his hearing, the Veteran again described his in-service injury. He noted that his spina bifida never bothered him prior to service but that it has bothered him since service. This evidence is duplicative of the testimony that was already of record at the time of the December 1963 decision. Therefore, it does not constitute new and material evidence to reopen the claim. Finally, the Board notes that, at the May 2017 Board hearing, the Veteran's representative suggested that the December 1963 Board decision may have incorrectly applied the presumption of soundness. To the extent the representative suggests that the December 1963 Board decision contains clear and unmistakable error (CUE), the representative must file a separate motion alleging CUE in the December 1963 Board decision, and such motion must be pled with specificity and must clearly state the alleged error. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400, 20.1404 (2017). ORDER New and material evidence not having been received, the claim of entitlement to service connection for a low back disability is not reopened; the appeal is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs