Citation Nr: 18147219 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-47 187 DATE: November 2, 2018 ORDER The Veteran has not presented new and material evidence to reopen his claim for service connection for low back pain with spondylosis. FINDINGS OF FACT 1. Service connection for low back pain with spondylosis was most recently denied in a September 1985 Board decision because there was no new and material evidence submitted to reopen the claim; the Veteran did not appeal the decision and it became final. 2. The most recent decision on the merits was a March 1974 rating decision denying service connection because no nexus between service and low back pain with spondylosis was shown. 3. While some of the evidence received since the September 1985 Board decision was not previously considered by agency decision makers, nor is not cumulative or redundant of evidence already of record, the evidence does not address a previously unestablished fact nor does it raise the reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The September 1985 Board decision denying service connection for low back pain with spondylosis is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.110. 2. Evidence received since the September 1985 Board decision in support of the claim of service connection for low back pain with spondylosis is not new and material; thus, the claim is not reopened. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from January 1974 to February 1974. Reopening and New and Material Evidence The Veteran has filed a request to reopen his claim for low back pain with spondylosis. Regardless of the actions of the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, 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, 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). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, 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 (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” 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.” Shade v. Shinseki, 24 Vet. App. 110 (2010). When establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Prior Final Determination The Veteran’s claim of entitlement to service connection for low back pain with spondylosis was most recently denied in a January 1985 Board decision because he did not submit any new and material evidence. Prior to that, the most recent decision on the merits was a March 1974 rating decision. The Veteran then filed to reopen his claim for low back pain with spondylosis in June 2014. A rating decision dated October 2014 was issued in response to this application. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The Veteran did not initiate a formal appeal of the January 1985 Board decision. Therefore, for the purposes of the Veteran’s claim, the last final determination is the Board decision. 2. New and Material Evidence However, to reopen the Veteran’s claim for low back pain with spondylosis, the new evidence must be new and material. The Board notes that in March 1974, a rating decision denied the Veteran’s claim for service connection for low back pain with spondylosis because the evidence showed that the condition existed prior to enlistment and was not aggravated by his short period of active duty. Related to this determination, the Veteran was examined after sixteen days of active duty and the Veteran himself told the examiner that he had a two-year history of low back pain. Since the September 1985 Board decision, the evidence submitted consists of VA treatment records and additional lay statements. The new records do not provide anything that can be interpreted as a new opinion that his period of active duty aggravated his back condition. Through various correspondences, the Veteran has asserted that he did not have low back pain prior to service and therefore his back pain must be connected to his short period of service. These statements were presented by the Veteran and considered by the Board in September 1985. They do not, however, offer any new information. The Veteran’s assertions that he did not have any back pain prior to service were already of record at the time of the prior final decision. As such, additional written statements from the Veteran are not new and material. (Continued on the next page)   Therefore, no evidence submitted by the Veteran relates to the unestablished facts necessary to substantiate his claim, i.e. that his low back pain was aggravated by his period of service. The evidence is not new and material, and reopening must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock