Citation Nr: 18147950 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-43 511 DATE: November 8, 2018 ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a back disorder is denied. FINDINGS OF FACT 1. In a final decision issued in January 2002, the RO denied service connection for a back disorder. 2. Evidence added to the record since the final January 2002 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a back disorder. CONCLUSION OF LAW 1. The January 2002 RO decision that denied the claim of entitlement to service connection for a back disorder is final. 38 U.S.C.§ 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim for service connection for a back disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) periods from July 1976 to September 1976, July 1978 to November 1978. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO 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 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that 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. Id. 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). The Veteran’s claim for a back disorder was initially denied by the RO in April 1982 and confirmed by the Board in August 1983. The Board denied the Veteran’s claim on the basis that he did not have a current low back disability. The Board noted the Veteran’s report of falling in a hole and the in-service diagnosis of a back strain. However, the evidence did not show he suffered from chronic back disorder. The Veteran previously filed a petition to reopen this claim for service connection in April 2014. An August 2014 rating decision continued the previous denial of this claim on the basis that the evidence does not show a back disorder was incurred in or caused by the Veteran’s service. As the Veteran did not file either a notice of disagreement within one year of the issuance of this rating decision or submit new and material evidence within one year, the August 2014 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim for service connection was received prior to the expiration of the appeal period stemming from the August 2014 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). In denying the claim in the August 2014 rating decision, the RO considered the Veteran’s service treatment records, VA treatment records, and communications from the Social Security Administration (SSA) that all failed to establish the Veteran suffers from a low back disability that is attributable to his periods of ACDUTRA. In February 2015, the Veteran filed another petition to reopen this claim and the April 2015 rating decision currently on appeal denied reopening the claim on the basis that new and material evidence had not been submitted. Evidence submitted since the August 2014 rating decision includes a single VA treatment record dated in April 2014, and additional statements from the Veteran submitted in support of his claim. The April 2014 VA treatment record does not pertain to any treatment for a back disorder. Further, the Veteran’s statements in support of his claim for service connection again set forth his assertion that he injured his back during his last period of ACDUTRA and was disabled when he left service. Importantly, the Veteran has not submitted any evidence etiologically attributing a back disorder to his military service. (Continued on the next page)   Consequently, there is no evidence of record indicating the Veteran suffers from a back disorder that is due to his military service. As there are no new contentions or evidence to support the claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel