Citation Nr: 18151254 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-39 116 DATE: November 16, 2018 ORDER The petition to reopen the previously denied claim for service connection for a low back disability is denied. The petition to reopen the previously denied claim for service connection for right leg numbness secondary to a low back disability is denied. FINDINGS OF FACT 1. An unappealed November 2011 rating decision denied service connection for low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed November 2011 rating decision denied service connection for right leg numbness secondary to a low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim CONCLUSIONS OF LAW 1. The November 2011 rating decision denying the claim for service connection for low back disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The November 2011 rating decision denying the claim for service connection for right leg numbness secondary to a low back disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1981 and from November 1981 to November 1984. This case comes before the Board of Veteran’s Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302 (2017). 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). In order to establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be considered as having been filed relating to the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). 1. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a low back disability 2. Whether new and material evidence has been submitted to reopen a previously denied claim for right leg numbness secondary to a low back disability. Issues 1-2. A January 2006 rating decision denied service connection for lumbar degenerative disc disease because service treatment records (STRs) did not show a diagnosis or treatment for a back injury while in the military and there was no evidence showing manifestation to a compensable degree within one year from discharge from service. See Rating Decision (RD), dated January 14, 2006. Of evidence were STRs for the Veteran’s periods of service, private treatment records, and the Veteran’s lay statements. The Veteran did not file an appeal within one year of notification, and the decision became final. A November 2011 rating decision continued the denial of service connection because evidence submitted failed to relate a low back condition to an event or disease during active service or within one year of discharge from active service. See RD, dated November 8, 2011. Service connection for right leg numbness was denied as STRs showed no diagnoses of or treatment for numbness of the right leg in service and a low back disability was not related to service. Id. Of evidence were STRs for the Veteran’s periods of service, private treatment records included in the previous decision, the Veteran’s military discharge certificates, and the Veteran’s lay statements. The Veteran did not file an appeal within one year of notification, and the decision became final. The Veteran sought to reopen his prior claims for a low back condition and right leg numbness in July 2013. Evidence in support of his claim includes private treatment records dated August 15, 2008, to January 18, 2010, VA examinations, statements from the Veteran’s representative, and lay statements from the Veteran and his friend. Statements received from the Veteran and his friend are cumulative or redundant in substance of information previously before VA adjudicators. Significantly, the Veteran reported the circumstances of a 1980 back injury and, apart from identifying the effects of the Veteran’s back injury, his friend simply reiterated the Veteran’s statements as reported to him by the Veteran. Private treatment records denote treatment of the Veteran’s back injury for the indicated time period, and a VA examiner opines the Veteran’s low back condition is more likely connected to work related accidents considered in prior decisions. See Medical Treatment Record, dated July 22, 2013, and CAPRI, dated March 19, 2014. While this evidence is new, it is not material as it does not establish a fact necessary to reopen either claim. The recent evidentiary submissions do not cure any prior evidentiary defect. Therefore, as new and material evidence to reopen the previously disallowed claims has not been submitted. Accordingly, the petitions to reopen the previously denied claims are denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel