Citation Nr: 18143605 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-20 437 DATE: October 19, 2018 ORDER The application to reopen a claim for entitlement to service connection for a low back disability is denied. The application to reopen a claim for entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. An unappealed November 2012 rating decision denied reopening a claim for entitlement to service connection for left lumbar paravertebral fibromyositis, claimed as a low back condition. 2. Evidence received since the final November 2012 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a back disability. 3. An unappealed February 2000 Board decision denied entitlement to service connection for a mental disorder. 4. Evidence received since the final February 2000 Board decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The November 2012 rating decision determining that new and material evidence was not presented to reopen a claim for entitlement to service connection for left lumbar paravertebral fibromyositis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claim for entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The February 2000 Board decision denying the Veteran’s claim for service connection for a mental disorder is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 4. New and material evidence has not been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to October 1984. He also had a period of active duty for training (ACDUTRA) from June 27, 1993 to July 11, 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). VA attempted to clarify whether the Veteran wished to testify before the Board in an August 2018 hearing clarification letter. The Veteran did not respond to this letter within 30 days; therefore, the Board considers his request for a hearing withdrawn and will proceed without scheduling the Veteran for a hearing. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a low back disability The Veteran’s petition to reopen a claim for entitlement to service connection for left lumbar paravertebral fibromyositis, claimed as a low back disability, was previously denied by the RO in a November 2012 rating decision. The evidence of record at the time of that decision included VA medical records, service treatment records, and statements from the Veteran linking his current back pain to a back strain in 1993 during his ACDUTRA service. The RO declined to reopen the Veteran’s claim, indicating that there was no evidence showing the Veteran’s back disability was incurred in or aggravated by a period of active service. The Veteran did not appeal this decision and it became final. Since the November 2012 rating decision, the Veteran submitted updated VA treatment records, a VA back examination, and additional statements regarding his back pain and the 1993 back strain. The evidence continues to show the presence of a current back disability, including lumbar spine spondylosis and strain. However, a current back disability was noted at the time of the previous denial. The Veteran’s 1993 back strain was also considered at the time of the November 2012 rating decision. Rather, the claim was denied because there was no evidence of a nexus between the current disability and the Veteran’s period of active service. The January 2015 VA examiner opined that the Veteran’s current back disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The only evidence of a nexus to service is the Veteran’s statement, which is redundant of the evidence considered at the time of the November 2012 rating decision. The Board finds that the evidence received since the November 2012 rating decision does not raise a reasonable possibility of substantiating the claim. The medical evidence obtained is essentially cumulative of the evidence previously considered. Additionally, the Veteran’s reports of ongoing back pain related to an in-service back strain were of record at the time of the November 2012 rating decision. Based on a review of the record, the Board finds that even though the additional evidence is new, it is cumulative and does not address unestablished facts needed to substantiate the claim. Since the evidence does not meet the definition of material evidence, it does not satisfy the low threshold for reopening a claim. See Shade, supra. As new and material evidence has not been received, the petition to reopen the claim for service connection for a low back disability must be denied. 2. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for an acquired psychiatric disorder The Veteran’s claim for entitlement to service connection for a mental condition was previously denied by the Board in a decision dated in February 2000. The evidence of record at the time of that decision included VA medical records, service treatment records, and the Veteran’s statements, including testimony from a hearing before the RO that he sought mental health treatment during service. There was evidence that the Veteran was diagnosed with major depression and posttraumatic stress disorder (PTSD) at that time. However, the Board found no evidence of mental health treatment during the Veteran’s period of active service and no evidence that his current psychiatric conditions were related to his period of active service. The Veteran did not appeal this decision and it became final. Since the February 2000 decision, the Veteran submitted updated VA treatment records and statements regarding his mental health treatment. Although the record includes ongoing psychiatric treatment for major depression and PTSD, there is no evidence showing that the Veteran suffers from a psychiatric disorder related to his period of active service. The Board finds that the evidence received since the February 2000 Board decision does not raise a reasonable possibility of substantiating the claim. The evidence obtained is essentially cumulative of the evidence previously considered. Despite a current diagnosis, there is no new and material evidence linking a current condition to his period of active service. Based on a review of the record, the Board finds that even though the additional evidence is new, it does not address unestablished facts needed to substantiate the claim. Accordingly, it does not satisfy the low threshold for reopening a claim. See Shade, supra. As new and material evidence has not been received, the petition to reopen the claim for service connection for an acquired psychiatric disorder must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor