Citation Nr: 18147848 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-23 190 DATE: November 6, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a neck disorder is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a left hip disorder is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a back disorder is denied. FINDINGS OF FACT 1. In a final rating decision issued in May 2011, the AOJ determined that new and material evidence had not been received in order to reopen the claim of entitlement to service connection for a neck disorder, and denied service connection for left hip and back disorders. 2. Evidence added to the record since the final May 2011 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a neck disorder. 3. Evidence added to the record since the final May 2011 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left hip disorder. 4. Evidence added to the record since the final May 2011 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The May 2011 rating decision that determined that new and material evidence had not been received in order to reopen the claim of entitlement to service connection for a neck disorder and denied service connection for left hip and back disorders is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. 2. New and material evidence has not been received to reopen the claims of entitlement to service connection for a neck disorder. 38 U.S.C. § 5108; 38 C.F.R § 3.156(a). 3. New and material evidence has not been received to reopen the claims of entitlement to service connection for a left hip disorder. 38 U.S.C. § 5108; 38 C.F.R § 3.156(a). 4. New and material evidence has not been received to reopen the claims of entitlement to service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to July 1965. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On his July 2015 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. However, in October 2018 written correspondence, the Veteran, through his representative, withdrew his request for a Board hearing. Accordingly, the Board will proceed to adjudicate the case on the record. See 38 C.F.R. §§ 20.702(e), 20.704(e). The Board observes that, following the issuance of the June 2015 statement of the case, additional evidence consisting of December 2015 and April 2016 VA examination reports addressing the Veteran’s service-connected posttraumatic stress disorder, Vocational Rehabilitation records, and updated VA treatment records dated through May 2016 were associated with the record. While the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, the Board finds that, as such is irrelevant to the issues on appeal or include findings that are redundant of the evidence previously of record, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1304(c). The Board further observes that, in March 2017, the Veteran, through his representative, submitted private treatment records with a waiver of AOJ consideration. Id. Therefore, the Board may properly consider such newly received evidence. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a neck disorder. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left hip disorder. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder. By way of background, in January 2007, the Veteran filed an original claim for service connection for a neck injury. In an October 2007 rating decision, the AOJ considered the Veteran’s service treatment records (STRs), service personnel records (SPRs), VA and private treatment records, and lay statements from the Veteran. The AOJ noted that the Veterans STRs: (1) were silent as to complaints, diagnosis, or treatment for a neck injury; (2) included a medical examination following a motor vehicle accident in January 1965 that was silent as to a neck injury; and (3) indicated no disability at the time of separation. The AOJ further noted that the Veteran’s post-service treatment records revealed that he had a history of neck pain and a mass on the left side of his neck; had pain with forward flexion; and a CT determined his neck mass to be slightly enlarged lymph glands with a lipoma on the back of his neck and his cervical spine was unremarkable. Here, the AOJ acknowledged that the evidence showed complaints and treatment for neck pain; however, denied service connection for a neck disorder as the evidence did not support the conclusion that such disorder was related to military service. The Veteran was notified of the decision and his appeal rights later the same month. Thereafter, he entered a notice of disagreement in January 2008, and a statement of the case, which continued the denial on the same bases, was issued in September 2008. However, the Veteran did not enter a timely substantive appeal. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. Therefore, the October 2007 decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007) [(2017)]. Subsequently, in an October 2009 written correspondence, the Veteran requested to reopen his claim for service connection for a neck disorder and filed original claims for service connection for left hip and back disorders. In a May 2011 rating decision, the AOJ considered the Veteran’s STRs, SPRs, VA treatment records, January 2011 VA examination reports, and lay statements from the Veteran. Pertinent to the Veteran’s neck disorder, his request to reopen such claim was denied, noting that the evidence received was not new and material. Here, the AOJ found that the Veteran’s VA treatment records did not demonstrate any nexus between his current cervical spine disorder and his active military service. Additionally, pertinent to the Veteran’s left hip disorder, the AOJ noted that: (1) his STRs noted a history of a left pelvis fracture, but did not note any diagnosis or treatment for a left hip disorder; (2) his VA treatment records indicated findings of degenerative changes involving his left hip; and (3) a January 2011 VA examiner found that his left hip degenerative joint disease was less likely as not caused by service. Here, the AOJ denied service connection for a left hip disorder as the evidence did not show that such disorder was related to his active military service. Furthermore, pertinent to the Veteran’s back disorder, the AOJ indicated that neither his STRS nor VA treatment records noted a diagnosis or treatment for a back disorder. Here, the AOJ denied service connection for a back disorder as the evidence did not show a current disability that was related to his active military service. The Veteran was notified of the decision and his appeal rights later the same month. He did not enter a notice of disagreement as to the claims currently on appeal. Furthermore, no additional evidence pertinent to such claims was physically or constructively received within one year of the issuance of the May 2011 rating decision, and no relevant service department records since been received. Therefore, the May 2011 decision is also final. See 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the May 2011 rating decision includes the Veteran’s statements, VA and private treatment records, and a May 2015 VA examination reports reflecting diagnoses of lumbar L4 osteophyte, cervical disc degeneration/spondylosis, and left hip degenerative joint disease, and negative nexus opinions As discussed above, the Veteran’s claims were previously denied on the basis that, while the evidence of record showed current disorders related to his neck, left hip, and back, such failed to show a relationship to service. Similarly, the newly received evidence continues to fail to show a link or nexus between the Veteran’s current neck, left hip, and back disorders and any instance of his military service. In this regard, the Veteran’s statements are duplicative of those previously of record, and the newly received treatment records only reflect ongoing treatment for his disorders. Furthermore, the May 2015 VA examiner found that the Veteran’s neck, left hip, and back disorders were not related to events that occurred in military service. In support of such opinion, he reported that the Veteran’s history was not consistent with his medical records. Here, the examiner explained that the Veteran’s STRs indicated that he did not suffer a neck, left hip, or lower back injury as a result of the motor vehicle accident in January 1965; rather, he suffered a laceration of the leg and abdomen, and a pubic rami fracture that healed. He further explained that the Veteran’s separation examination was normal. Additionally, the examiner reported that, in 1999, the Veteran was biking 40 miles, three times a week. He concluded that, 41 years after separation, the Veteran developed age-related degenerative joint disease of both hips; and that 50 years after separation, he developed age-related lower back and neck disorders. In this regard, as the nexus opinions are unfavorable to the Veteran’s service connection claims for neck, left hip, and back disorders, such do not provide a basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Therefore, the Board finds that the evidence added to the record since the final May 2011 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for neck, left hip, and back disorders. Consequently, it is not new and material. In this regard, as new and material evidence sufficient to reopen the previously denied claims has not been received, the benefit-of-the-doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Therefore, the Veteran’s appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel