Citation Nr: 18149720 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-07 259 DATE: November 13, 2018 ORDER New and material evidence not having been received, the appeal to reopen service connection for degenerative disc disease (“DDD”) of the thoracic spine is denied. FINDINGS OF FACT 1. In August 2008, the Board denied service connection for DDD of the thoracic spine on the basis the Veteran did not provide new and material evidence after a previously disallowed claim for service connection for DDD of the thoracic spine. 2. Evidence received since the Board’s August 2008 decision is cumulative of evidence previously considered and does not relate to a previously unestablished fact necessary to substantiate the claim for service connection for DDD of the thoracic spine. CONCLUSIONS OF LAW The August 2008 Board decision denying service connection for DDD of the thoracic spine was final when issued. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. New and material evidence has not been received to reopen service connection for DDD of the thoracic spine. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1974 to April 1977. This appeal arises from a 2012 rating decision, which denied service connection for DDD of the thoracic spine. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 3.102, 3.156, 3.326 (2017). New and Material Evidence Generally, a claim which has been previously denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7104(b). However, pursuant to 38 U.S.C.§ 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade, 24 Vet. App. at 117. Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Analysis of Reopening Service Connection The Veteran was initially denied entitlement to service connection for DDD of the thoracic spine by a May 2003 rating decision. At such time, the evidence of record consisted of: (1) statements from the Veteran, (2) service treatment records, (3) medical literature, (4) an April 2002 VA examination report, and (5) VA treatment records for the period from September 2000 through November 2002. The May 2003 rating decision denied service connection on the basis that the DDD of the thoracic spine was not either directly related to his military service or secondary to his service-connected left shoulder disability. The Veteran was subsequently notified of his appellate rights, but did not file a notice of disagreement; therefore, this decision became final. In June 2004, the Veteran submitted evidence to the RO pertaining to DDD of the thoracic spine, and requested that it be considered as new and material evidence to reopen service connection for an upper back disorder. The RO interpreted this as referring to the previously denied thoracic spine claim and. in a November 2004 rating decision, the RO reopened service connection for DDD of the thoracic spine and denied it on the merits. The Veteran perfected an appeal of the issue to the Board. In July 2007, the Board remanded the Veteran’s request to reopen to reopen service connection for DDD of the thoracic spine to provide notice to the Veteran as to what constitutes as new and material evidence. In August 2008, the Board denied the claim, finding that new and material evidence had not been received since the prior final denial in 2003. In the August 2008 decision, the Board considered: (1) evidence from VA examination reports for the period from 2003 and 2006, (2) private medical records for the period from 2003 and 2006, (3) VA treatment records for the period from 2003 and 2006, and (4) personal testimony from the Veteran received in 2007. The August 2008 Board decision, which was not appealed to the Court, was final when issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In the July 2012 rating decision currently on appeal, the RO denied reopening of service connection for DDD of the thoracic spine, finding that the evidence submitted was not new and material. After a review of all the evidence, the Board finds that the newly received evidence since August 2008 is not new and material to reopen service connection for a back disorder. The evidence received since the August 2008 Board decision is cumulative of the evidence previously considered. The Board’s 2008 decision denied service connection for DDD of the thoracic spine on the basis that the evidence did not show that the DDD of the thoracic spine was related to service. The newly submitted evidence does not tend to show that DDD of the thoracic spine was related to service. When making this determination, the Board considered the Veteran’s newly submitted: (1) medical examination reports for the period from 2006 and 2011, (2) x-rays from 2013, (3) personal testimony from the Veteran received since 2008, and (4) excepts from medical literature provided by the Veteran. This newly submitted evidence merely relates to the already established element of current disability (DDD) of the thoracic spine. It has no tendency to show nexus to service or to a service-connected disability. For these reasons, the Board finds that the evidence received since the August 2008 Board decision does not raise a reasonable possibility of substantiating the claim for service connection for DDD of the thoracic spine. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dye, Associate Counsel