Citation Nr: 18145257 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-07 198 DATE: October 26, 2018 ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a dorsolumbar spine disability, and the appeal is denied. New and material evidence has not been presented to reopen a claim of entitlement to service connection for lumbar radiculopathy, and the appeal is denied. FINDINGS OF FACT 1. A November 2006 rating decision denied service connection for a back disability. The Veteran did not appeal the decision, and that decision is final. 2. Evidence associated with the record since the November 2006 rating decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for a back disability, and does not raise a reasonable possibility of substantiating the claim. 3. A November 2006 rating decision denied service connection for lumbar radiculopathy of lower extremities. The Veteran did not appeal the decision, and that decision is final. 4. Evidence associated with the record since the November 2006 rating decision is cumulative or redundant of evidence of record at the time of the prior denial, does not relate to unestablished facts necessary to substantiate the claim for service connection for radiculopathy, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. As new and material evidence has not been received, the claim for service connection for a back disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). 2. As new and material evidence has not been received, the claim for service connection for lumbar radiculopathy is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. New and Material Evidence As new and material evidence has not been received, the claim for service connection for radiculopathy is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means evidence not previously submitted to agency decision-makers. 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. New and material evidence has not been presented to reopen a claim for entitlement to service connection for dorsolumbar paravertebral myositis with scoliosis, and the appeal is denied. Service connection was denied for dorsolumbar paravertebral myositis with scoliosis in a November 1987 Board decision because the Veteran had a congenital defect. That denial was confirmed in a November 2006 RO decision. The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial. Therefore, the November 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.302. The evidence added to the claims file subsequent to the November 2006 denial includes private treatment records, and statements from the Veteran. Pertinent to the current claim, the additional records show that the Veteran has degenerative changes in the lumbar spine. However, none of the additional records submitted indicate that any current lumbar spine problems are related to service. The records submitted by the Veteran reiterate that the Veteran currently experiences lumbar spine problems, which was established at the time of the previous denial. Therefore, the additional records are cumulative of the evidence previously considered in the June 2011 decision. Thus, as they are cumulative, the treatment records cannot be new and material. Anglin v. West, 203 F.3d 1343 (2000). The Board finds the evidence added to the claims file since the November 2006 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that currently diagnosed lumbar spine disabilities are related to in-service incidents or any superimposed injury on the congenital defect during service that resulted in his current disability, which was the basis for the prior determination. As the information provided in support of the application to reopen the claims for service connection for dorsolumbar paravertebral myositis with scoliosis does not include new and material evidence, the appeal as to that issue remains denied, and the claim is not reopened. 2. New and material evidence has not been presented to reopen a claim for entitlement to service connection for lumbar radiculopathy of the right lower extremity is denied, and the appeal is denied. A November 2006 rating denied service connection for radiculopathy because there was no evidence that a back disability was related to service, and thus secondary service connection could not be established. That decision also found no evidence that any current lower extremity radiculopathy was incurred in or aggravated by service. The relevant evidence of record at that time included the Veteran’s statements, service medical records, and private medical records. The Veteran was notified of the decision and his appellate rights by letter dated November 30, 2006. The Veteran did not submit a timely notice of disagreement or submit material evidence within one year following that denial. Therefore, the November 2006 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. The evidence added to the claims file subsequent to the November 2006 denial includes private treatment records and statements from the Veteran. Pertinent to the current claim, a February 2007 treatment record showed a diagnosis for radiculopathy, while subsequent private records showed no diagnosis. Specifically, a September 2015 nerve study showed no evidence of lumbar spine radiculopathy. Further, a June 2016 nerve study showed no evidence of radiculopathy. The new evidence does not show that any current lower extremity neurologic disability is related to service or any event or service, or any service-connected disability. Therefore, the additional records are cumulative of the evidence previously considered in the November 2006 decision. Thus, as they are cumulative, the treatment records are not new and material. Anglin v. West, 203 F.3d 1343 (2000). The Board finds the evidence added to the claims file since the November 2006 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which demonstrates that any lower extremity neurologic disability is related to service or any service-connected disability, which was the basis for the prior determination. As the information provided in support of the application to reopen the claims for service connection for lumbar radiculopathy does not include new and material evidence, the appeal as to that issue remains denied, and the claim is not reopened. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel