Citation Nr: 18145387 Decision Date: 10/29/18 Archive Date: 10/26/18 DOCKET NO. 16-15 492 DATE: October 29, 2018 ORDER The application to reopen a claim for entitlement to service connection for a back disability is denied. FINDING OF FACT A November 2009 rating decision denied entitlement to service connection for a back condition and subsequent evidence associated with the claims file did not relate to an unestablished fact necessary to substantiate the claim and/or is cumulative or redundant of evidence previously of record. CONCLUSION OF LAW Evidence received since the November 2009 rating decision is not new and material and the claim for service connection for a back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to January 1969. Whether New and Material Evidence has been received to Reopen a Claim for Service Connection for a Back Disability In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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). The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. A June 2005 Board decision denied entitlement to service connection for a back disability, determining that a back disability was first manifest several years after service and was not related to the Veteran’s service. Lay statements, VA treatments records, private treatments records, VA examinations, and the Veteran’s service treatments records were considered in the denial. A November 2009 rating decision denied a claim for entitlement to service connection for a back disability. The Veteran failed to timely appeal, provide new and material evidence within one year, or otherwise express disagreement with the rating decision and it became final. As a result, the claim of entitlement to service connection for a back disability may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Since the last adjudication of the claim, the Veteran submitted a July 2012 statement reiterating that he hurt his back playing flag football while in service but went a long time without a diagnosis. He resubmitted September 2009 medical evidence reflecting the diagnosis of spinal canal stenosis, which had been considered in the November 2009 rating decision. The Veteran has not added any additional evidence that has not already been considered since the time of the November 2009 rating decision. VA obtained and associated VA treatments records through November 2015 which show continued treatment for back pain. The evidence added to the record since the November 2009 decision continues to show a back condition, but does not indicate that there is a relationship between that condition and service. Although new, the evidence is cumulative because it shows continued treatment for back pain that was previously acknowledged and considered. Thus, the Board concludes that the evidence added to the record since the November 2009 rating decision is not new and material. In summary, the defect existing at the time of the 2009 Board decision has not been cured, and the claim of entitlement to service connection for back disability may not be reopened. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel