Citation Nr: 18146280 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-34 823 DATE: October 31, 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 temporomandibular joint dysfunction (TMJ) is denied. FINDINGS OF FACT 1. An unappealed May 1989 rating decision denied entitlement to service connection for a back injury and jawbone dislocation. 2. Evidence received since the final May 1989 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disability. 3. Evidence received since the final May 1989 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for TMJ. CONCLUSIONS OF LAW 1. The May 1989 rating decision denying the Veteran’s claims for service connection for a low back disability and jawbone dislocation 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 of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for TMJ. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s representative argues that VA did not provide the Veteran with proper notice under the Veterans Claims Assistance Act (VCAA) prior to adjudicating his claims. Although the Board acknowledges that notice was not provided prior to the March 2015 rating decision, compliant notice was provided in a June 2016 Statement of the Case. The Veteran was given an opportunity to respond, and the claims were readjudicated in an August 2016 Supplemental Statement of the Case (SSOC). Accordingly, the Board finds that there has been compliance with the VCAA. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that 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. 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 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 claim for entitlement to service connection for a back injury was previously denied by the RO in a May 1989 rating decision. The evidence of record at the time of that decision included service treatment records, VA and private treatment records, and a VA examination report. During the March 1989 VA examination, the Veteran reported that he injured his back in service and then reinjured his back in 1980 after falling from a ladder. At that time, an x-ray of his spine showed a collapsed vertebra. The RO noted that despite the Veteran’s current back pain, which was attributed to back strain, there was no evidence of a chronic back disability in service and there was no evidence that the Veteran currently had arthritis in his spine. The Veteran did not appeal this decision, and it became final. Since the May 1989 rating decision, the Board has received updated treatment records and statements from the Veteran regarding in-service treatment for a back injury. The records reflect ongoing complaints of back pain, diagnosed as back pain with a history of degenerative disc disease. There is no evidence showing the Veteran has been diagnosed with arthritis in the spine. Additionally, there is no evidence of a nexus between any current back disability and his reported in-service back injury. The Board finds that the evidence received since the May 1989 rating decision does not raise a reasonable possibility of substantiating the claim. The medical evidence obtained is essentially cumulative of the evidence previously considered. The Veteran’s reports of in-service treatment for a back disability and post-service evidence of collapsed vertebra were of record at the time of the May 1989 rating decision. The medical evidence received since then does not show that the Veteran had a chronic back disability in service and does not relate any current back complaints 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 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 temporomandibular joint dysfunction (TMJ) The Veteran’s claim for entitlement to service connection for jawbone dislocation was previously denied by the RO in a May 1989 rating decision. The evidence of record at the time of that decision included service treatment records, VA and private treatment records, and a March 1989 VA examination report. The RO noted the Veteran’s in-service dislocated mandible and a current diagnosis of TMJ with a tendency for dislocation. However, the RO denied the claim as there was no evidence of a chronic condition in service. The Veteran did not appeal this decision, and it became final. Since the May 1989 rating decision, the Board received updated VA and private treatment records and statements from the Veteran. Private treatment records dated in July 2016 reflect that the Veteran reported he was unable to open his mouth wide due to his jaw dislocating and locking. However, there is no evidence that any current complaints of a jaw disability are related to his period of active service. The Board finds that the evidence received since the May 1989 rating decision does not raise a reasonable possibility of substantiating the claim. The evidence obtained is essentially cumulative of the evidence previously considered. A current jaw disability was noted at the time of the May 1989 rating decision. The updated medical evidence does not show that the Veteran had any chronic injury to his jaw, to include TMJ, during service or a nexus between any current jaw complaints and his 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 TMJ must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor