Citation Nr: 18145574 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 15-06 818A DATE: October 30, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for a low back disability is denied. Entitlement to service connection for an acquired psychiatric disorder to include depression is denied. FINDINGS OF FACT 1. In a May 2010 rating decision, the RO denied the Veteran’s claim to reopen the matter of entitlement to service connection for a low back disability. He did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Additional evidence received since the May 2010 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for a low back disability. 3. An acquired psychiatric disability to include depression was not present during the Veteran’s active service, nor does the record contain any indication that any current psychiatric disability is causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The May 2010 rating decision denying the claim to reopen the matter of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has not been received to warrant reopening of the claim of service connection for a low back disability. 38 U.S.C. §§ 5107, 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. An acquired psychiatric disability to include depression was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran was scheduled to appear at the Detroit RO to have a videoconference hearing with a Veterans Law Judge. However, he failed to appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a May 1977 decision, the RO denied the Veteran’s original claim of entitlement to service connection for a back disability. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran’s claim to reopen the matter of entitlement to service connection for a low back disability was most recently denied in a May 2010 rating decision. The Veteran did not appeal the denial and new and material evidence was not received within one year, as such the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. Under these circumstances, the RO’s May 2010 decision is final, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen his claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in May 2010. After reviewing the record, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for a low back disability. The evidence associated with the Veteran’s claims file at the time of the last final denial in May 2010 included service treatment records (STRs), private treatment records, a June 1978 letter from Dr. R.H., and the statements of the Veteran. At the time of the last final denial, the Veteran contended that his low back disability was either incurred or aggravated by his active duty service. See the Veteran’s claims dated March 1977, July 1978, and December 2009. To this end, the evidence shows that he served on active duty from December 1976 to February 1977. The Veteran’s December 1976 noted his report that he fell off a truck and hurt his back prior to his military service. A January 1977 narrative summary indicated that the Veteran fell off a truck in August 1976 and injured his back. The Veteran indicated that he did not have money to see a doctor for an examination, and reported that, since that time, he has had low back pain while bending forward. The narrative summary further indicated that since basic training, the Veteran “has found that he has a lot of low back pain while running, doing grass drills and bending exercises.” X-rays during service have revealed bilateral spondylolysis L5 with first degree spondylolisthesis. A diagnosis of mechanical low back pain secondary to spondylolisthesis L5 with 1st degree spondylolisthesis. Medical Board proceedings conducted in February 1977 determined that the Veteran’s low back disability existed prior to service and was not aggravated thereby. The Veteran was discharged in February 1977. As described above, the Veteran’s claim of entitlement to service connection for a low back disability was denied in a May 1977 rating decision, which determined that the Veteran’s pre-existing low back disability was not aggravated by his active duty service. The Veteran filed a claim to reopen in July 1978 and submitted a June 1978 letter in which Dr. R.H. indicated that the Veteran has a history of recurrent back problems and x-rays have revealed spondylolisthesis. Dr. R.H. indicated that the exact cause of the Veteran’s worsening low back pain was difficult to evaluate. The claim to reopen was denied in July 1978. In December 2009, the Veteran again filed a claim to reopen the matter of entitlement to service connection for a low back disability. Private treatment records dated in December 2004 indicated that the Veteran had been involved in a recent motor vehicle collision; it was noted that he “has some chronic back pain following a lumbar fusion of L4 and L5 with grade 2 spondylolisthesis over S1.” A May 2010 rating decision denied the Veteran’s claim to reopen. The Veteran filed another claim to reopen in July 2012, which was denied a November 2012 rating decision. This appeal follows. After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for a low back disability has not been received. The evidence associated with the claims file subsequent to the prior final decision in May 2010 includes the Veteran’s VA treatment records, as well as statements of the Veteran. Medical evidence has been added to the record indicating that the Veteran continues to suffer from a low back disability with chronic pain. See the VA treatment records dated July 2012. Moreover, the Veteran’s assertions concerning the incurrence, etiology, and continuing symptomatology concerning his claimed back disability, although new, are essentially cumulative of evidence already of record. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus between the diagnosed low back disability and his military service, which was not previously considered in prior decision. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156. The Board must therefore conclude that new and material evidence has not been received and that the Veteran’s claim for service connection for a low back disability is not reopened. 2. Entitlement to service connection for an acquired psychiatric disorder to include depression. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for an acquired psychiatric disability to include depression. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim. The Veteran has asserted that he developed depression during his active military service as a result of his back problems. See the Veteran’s VA Form 9 dated March 2015. He argues that he continues to experience symptoms of depression. Id. Initially, the Board notes that the Veteran is not service-connected for a low back disability. As such, to the extent that he is asserting entitlement to service connection for depression as secondary to his low back disability, this argument fails as a matter of law. See 38 C.F.R. § 3.310. With respect to the Veteran’s contentions that he began experiencing depression during his military service, the Board notes that the Veteran’s STRs are entirely negative for any complaints, treatment, or diagnosis of depression or any acquired psychiatric disability. Notably, his STRs indicate that he did experienced low back pain and was diagnosed with mechanical low back pain secondary to spondylolysis L5 with first degree spondylolisthesis, which was determined to have pre-existed the Veteran’s military service. See the Medical Board Proceedings dated February 1977. Significantly, however, the evidence does not show that the Veteran began to suffer from psychological symptoms at any time during his military service. Under these circumstances, the Board concludes that an acquired psychiatric disorder was not incurred during active duty. The post-service medical evidence is similarly negative for any complaints or findings of any psychiatric disability for decades thereafter. VA treatment records dated from November 2011 document treatment for alcohol dependence with history of posttraumatic stress disorder, depression, and personality disorder, not otherwise specified (NOS). See, e.g., the VA treatment records dated in November 2011 and July 2012. Significantly, there is no evidence to suggest that the Veteran was diagnosed with an acquired psychiatric disability to include depression for decades after his separation from active duty service. Additionally, no medical professional has suggested that the Veteran suffers from an acquired psychiatric disability that is related to his military service, and neither has the Veteran presented, identified, or even alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder to include depression is therefore denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel