Citation Nr: 18151530 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-35 278A DATE: November 19, 2018 ORDER New and material evidence having not been presented, the application to reopen the previously denied claim of entitlement to service connection for a back condition, to include lumbar disc disease, is denied. FINDINGS OF FACT 1. In a March 2011 rating decision, the RO denied the claim of service connection for a back condition, to include lumbar disc disease. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year appeal period. 2. The evidence added to the record since the March 2011 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of service connection for a back condition, to include lumbar disc disease. CONCLUSIONS OF LAW 1. The March 2011 rating decision that denied the Veteran’s claim for entitlement to service connection for a back condition, to include lumbar disc disease, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the March 2011 rating decision is neither new nor material, the requirements to reopen the claim for entitlement to service connection for a back condition, to include lumbar disc disease, have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army on active duty from September 1972 to February 1973. He also has service in the Army Reserve. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless “patently incredible.” Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran is claiming entitlement to service connection for a back condition, to include lumbar disc disease, The Veteran’s claim was previously denied by the RO in March 2011 on the basis that it was not caused by service or incurred in service. Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of this claim. As an initial matter, under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3156 (a). The Board acknowledges that additional service department records have been associated with the claims file since the March 2011 rating decision, including the Veteran’s service treatment records (STRs) received in October 2013 and a military personnel record regarding the Veteran’s discharge from the Army Reserve received in April 2012. The Board also notes that in the November 2016 in lieu of VA Form 646 the Veteran raises the fact that his STRs were not associated with the claims file at the time of the March 2011 rating decision as a basis to reopen this previously disallowed claim. However, the Board has reviewed these newly associated records and finds that they are not relevant and/or are duplicative or cumulative of the evidence of record. Specifically, the STRs do not contain any relevant information regarding a claimed in-service event, injury, or disease relating to the Veteran’s back condition, to include lumbar disc disease. Further, the military personnel record regarding the Veteran’s discharge from the Army Reserve do not contain any relevant information regarding the Veteran’s back condition. Therefore, the Board determines that this evidence does not warrant readjudication of his original claim, and that new and material evidence will be required to reopen the claim. After a review of the evidence submitted since the March 2011 rating decision became final, the Board determines that reopening the claim for service connection for a back condition, to include lumbar disc disease, is not warranted. Further, the May 2018 appellate brief is also duplicative of the evidence of record. The brief specifically states that in a November 2012 medical report, the Veteran’s private treating physician indicated that his back condition was a work-related injury. The brief argues that the physician did not clarify what employment caused the injury, and thus the case should be reviewed with consideration for sound rating and medical principles consistent with the Board’s policy of liberal interpretation of applicable laws, regulatory provisions, and precedent Court opinions. The Veteran has submitted additional private treatment records since the March 2011 rating decision. These treatment records were received in March, April, and December of 2012. Social Security Administration records regarding the Veteran’s disability and medical treatment were also received in October 2013. The Board has reviewed these records and finds that they are not relevant and/or are duplicative or cumulative of the evidence of record. These records continue to show that the Veteran injured his back in a work-related injury in 2000 while employed as a truck driver when he fell off a truck, and in a second work-related injury in 2002 while employed as a truck driver when moving pallets with a hand truck. Therefore, the evidence submitted in the medical records and appellate brief is merely recitations of evidence already in the record and does not constitute new nor material evidence. Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Additionally, the Veteran’s lay statements contained in the February 2012, April 2012, and May 2012 Report of General Information Forms are also duplicative of the evidence of record. Accordingly, as evidence that is both “new” and “material” has not been submitted, there is no basis to reopen the previously denied claim for the Veteran’s back condition, to include lumbar disc disease. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel