Citation Nr: 1804736 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-28 271A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 1986 and from May 1987 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. A January 1999 rating decision denied the Veteran's claim for entitlement to service connection for a low back disability. The Veteran did not appeal the January 1999 rating decision and that decision became final. 2. Thereafter, the Veteran resubmitted her claim for service connection for a low back disability in July 2009. In a December 2009 rating decision, the RO denied the Veteran's claim for lack of new and material evidence. The Veteran appealed the December 2009 decision in a December 2010 notice of disagreement (NOD). 3. The additional evidence presented since the rating decision dated in January 1999 is cumulative of evidence previously considered. CONCLUSIONS OF LAW 1. The January 1999 rating decision is final. 38 U.S.C.A. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. New and material evidence has not been presented to reopen the claim of service connection for a low back disability. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. New and Material Evidence In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). An 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. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. New evidence means existing evidence not previously received by VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) also held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. Id. at 118. Thus, evidence is new and material if, when considered with the evidence previously of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Low Back Disability The Board finds that new and material evidence has not been received to reopen the Veteran's claim for entitlement to service connection for a low back disability. In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. In the January 1999 rating decision, the RO noted that service medical records for the period 05-21-87 to 05-06-94 showed the Veteran had several complaints of lower back pain beginning in December 1987. The diagnosis in service was muscle spasms or strain. The decision further noted that VA examination dated 11-30-98 at Jackson MS VA Medical Center shows a diagnosis of degenerative disc disease, mild, lumbar spine. The Veteran's claim for service connection for a low back disability was denied by the RO in January 1999, because evidence submitted failed to show any relationship between degenerative disc disease of the lumbar spine and any disease or injury during military service. This decision was not appealed within the time limit prescribed by regulation. See 38 C.F.R. § 20.1100. As the Veteran did not timely perfect her appeal on this issue, the Board finds that the January 1999 RO decision is final. The new evidence received after the January 1999 RO decision includes, in relevant part, service personnel and treatment records, VA treatment and private treatment records, a VA examination, and a hearing transcript. The August 2013 VA examiner established that the Veteran's diagnosis of muscular strain/sprain, mechanical lower back pain given during military service were temporary and self-limiting conditions, involving muscles and tendons, not the actual spinal column. Therefore, the examiner found that the Veteran's current degenerative disc disease was not related to service. In addition, the Veteran testified at her August 2017 Board hearing. Although the above cited evidence is new, in that it was not of record as of the time of the January 1999 RO decision, the Board finds that it is not material because it does not raise a reasonable possibility of substantiating the claim. The additional service records do not contain any additional references to back problems. The additional post service treatment records do not link the current back disorder to service. The VA examination report contains an opinion that weighs against the claim. Regarding her testimony, which was to the effect that she experienced back pain in service, the Board notes that it essentially duplicated information that was known at the time of the original claim. The evidence is not new, as the appellant had asserted such at the time of the previous rating decision. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). The evidence does not show that the Veteran's current disability of a low back disability, specifically degenerative disc disease, was related to her military service. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability, including by triggering VA's duty to provide an examination. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran's petition to reopen such claim is denied. ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability, the appeal is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs