Citation Nr: 18145457 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-38 704 DATE: October 29, 2018 ORDER New and material evidence has not been presented, and the claim of entitlement to service connection for low back condition is not reopened. FINDINGS OF FACT 1. An unappealed December 2009 rating decision denied service connection for back condition based on the finding that the condition was not shown to be related to the Veteran’s active service or aggravated by a service-connected disability. 2. Evidence submitted subsequent to the December 2009 rating decision is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for back condition. CONCLUSIONS OF LAW 1. The December 2009 rating decision which denied service connection for a back condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Army from August 1981 to August 1984. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of a regional office of the Department of Veterans Affairs (VA). New and Material Evidence 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. Low Back Condition By way of history, the Board notes that the Veteran’s original claim for service connection for a back condition was denied in an unappealed October 1991 rating decision based on an August 1991 VA examination that showed no findings of a chronic back condition to warrant service connection. In December 2009, the Veteran’s claim to reopen the previously denied claim for service connection for a back injury was denied due to a lack of nexus that the condition was related to active service or aggravated by a service-connected disability. The December 2009 rating decision was not appealed and new and material evidence was not received within a year. The rating decision thereby became final. In November 2015, the Veteran again filed a claim to reopen previously denied claim for service connection for a low back condition. Since the December 2009 decision, additional VA and private treatment records and written statements from the Veteran have been presented. While this evidence is new, in that it was not previously considered prior to the last final denial in December 2009, the additional medical information has no bearing or relation to the specific matter under consideration, as they do not establish a medical nexus between the current condition and active service. In fact, private treatment records reflect a work-related injury in July 2008, and physical therapy notes for lumbar strain in October 2008 show treatment no longer needed as the condition has resolved. Additionally, private treatment records of August 2014 reflect the Veteran’s reported history of back pain for the last six months. Basically, there is no indication that the Veteran’s current low back condition is related to service, or that the condition manifested to a compensable degree within the time period specified for service connection on a presumptive basis under 38 C.F.R. § 3.307. Therefore, these records are not material as it does not relate to any unestablished fact necessary to substantiate the claim. In sum, the unestablished facts that were missing at the time of the December 2009 denial of service connection have not been presented. All the evidence together does not raise a reasonable possibility of substantiating the claims for service connection. Therefore, the Board finds that new and material evidence has not been presented, and the claim for entitlement to service connection for low back condition cannot be reopened. 38 C.F.R. § 3.156(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel