Citation Nr: 18140839 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-05 341 DATE: ORDER New and material evidence has not been submitted to reopen the claim for service connection for a cervical spine disorder. New and material evidence has not been submitted to reopen the claim for service connection for a bilateral upper extremity disorder. FINDINGS OF FACT 1. A previously denied claim for service connection for a cervical spine disorder was initially denied in an unappealed October 2007 rating decision. The Veteran was notified of the October 2007 decision, but did not perfect a timely appeal. 2. The evidence added to the record since the October 2007 rating decision is new but does not relate to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine disorder, is cumulative or redundant of the evidence of record in October 2007, and otherwise does not raise a reasonable possibility of substantiating the claim. 3. A previously denied claim for service connection for a bilateral upper extremity disorder was initially denied in an unappealed October 2007 rating decision. The Veteran was notified of the October 2007 decision, but did not perfect a timely appeal. 4. The evidence added to the record since the October 2007 rating decision is new but does not relate to an unestablished fact necessary to substantiate the claim for service connection for a bilateral upper extremity disorder, is cumulative or redundant of the evidence of record in October 2007, and otherwise does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for a cervical spine disorder is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The October 2007 rating decision that denied service connection for a bilateral upper extremity disorder is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2018). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral upper extremity disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to May 1985, from January 1991 to June 1991, and from December 2003 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in April 2017. A transcript of the hearing is of record. The Board observes that additional CAPRI, VA treatment and private treatment records have been added to the claims file since the issuance of the March 2016 supplemental statement of the case (SSOC). The Board has reviewed the VA treatment and CAPRI records and observes that they are not pertinent to the issues of reopening service connection claims for a cervical spine and bilateral upper extremity disorders. The Board also observes that additional private treatment records were received following the last adjudication by the RO in the March 2016 SSOC. However, as the Veteran’s substantive appeal was received in February 2016, which is after February 2, 2013, an automatic waiver of evidence submitted by the claimant or his/her representative is presumed. Because the Veteran submitted these records, a waiver of RO consideration is presumed. New and Material Evidence To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). “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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. New and material evidence has not been submitted to reopen the claim for service connection for a cervical spine disorder or a bilateral upper extremity disorder. Having carefully reviewed the record, the Board finds that new and material evidence has not been submitted to reopen the previously denied claim for cervical spine and bilateral upper extremity disorder. In March 2007, the Veteran filed his original claim for a cervical spine disorder and a bilateral upper extremity disorder. The claim was denied in an October 2007 rating decision because the evidence showed that the Veteran’ disabilities pre-existed service and there was no aggravation of these disabilities during service. The evidence of record at the time of that denial included the Veteran’s service treatment records, statements from the Veteran, medical records from the Utah Valley Regional Medical Center and medical records from the Salt Lake City VAMC from 2004 to 2007. The Veteran was notified of the October 2007 rating decision, but did not initiate an appeal. Moreover, no new or material evidence was received within one year of the decision. Therefore, this decision is final. Thereafter, the Veteran submitted a claim to reopen his previous service connection claims in July 2015. The claims were again denied in a December 2015 rating decision. Evidence in support of the Veteran’s request to reopen his claim since the October 2007 denial includes October 2015 VA examinations for his claimed bilateral upper extremity and cervical spine disorders, CAPRI records from the Salt Lake City VAMC, a March 2016 statement by the Veteran, an April 2017 Board hearing transcript and an August 2017 private DBQ for the Veteran’s cervical spine disability. The Veteran’s claims for service connection for a cervical spine disability and bilateral upper extremity disability were previously denied due to no evidence of aggravation during service of his pre-service injuries. The record still does not show that the Veteran’s cervical spine and bilateral upper extremity disabilities were aggravated by his claimed in-service injury. Of note, the October 2015 examiner provided a thorough review of the Veteran’s history of cervical spine injury prior to his service, in addition to his report of aggravation during service. The examiner stated that a single incident would not have aggravated his pre-existing cervical spine disability or his bilateral upper extremity nerve disabilities, and that his current disability implies a longer standing neurological issue. Therefore, the VA examination and opinion revealed no evidence of aggravation for either disability. Furthermore, the August 2017 DBQ submitted by the Veteran, while addressing the Veteran’s reports of a history of worsening neck pain after service, did not provide an opinion that such pre-existing disabilities were aggravated by service. Thus, while new, the Veteran’s CAPRI records, October 2015 examination report, April 2017 hearing testimony and August 2017 DBQ are not material. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). Moreover, since the October 2007 rating decision the Veteran has submitted duplicative evidence, to include statements regarding his neck injury. This evidence is not new. In summary, the element which was missing at the time of the October 2007 denial of service connection, evidence of aggravation of the Veteran’s cervical spine and bilateral upper extremity disorders, remains lacking for both claims. New and material evidence has not been received, and the Veteran’s claims of entitlement to service connection for a cervical spine and bilateral upper extremity disorder may not be reopened. The benefits sought on appeal remain denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel