Citation Nr: 18153747 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-54 709 DATE: November 28, 2018 ORDER The petition to reopen a previously denied claim for service connection for a lumbar spine disability is denied. FINDING OF FACT 1. Service connection for a lumbar spine disability was previously denied in an October 2012 rating decision. 2. Evidence submitted since the October 2012 rating decision is new, but not material, as it does not raise a reasonable possibility of substantiating the claim for a lumbar spine disability. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.159, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to December 1972. The Veteran asserts that new and material evidence exists to reopen his claim of service connection for a lumbar spine disability. The Veteran filed an initial claim for service connection for a lumbar spine disability in August 2011. The claim was denied in an October 2012 rating decision, which found insufficient evidence to support a causal relationship between the Veteran’s current lumbar spine disability and his in-service complaints of back pain. The Veteran was notified of such decision but did not file a notice of disagreement, or submit any new and material evidence within the one-year appeal period, and that decision became final. The Veteran submitted a new application for service connection for a lumbar spine disability in August 2015, thus indicating a desire to reopen the claim. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence is defined as evidence not previously submitted to agency decision-makers. 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. 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 evidence of record at the time of the October 2012 rating decision included service treatment records, VA examinations, statements from the Veteran, and VA medical records. Service treatment records in 1972 document complaints and treatment of back pain. In August 1984, the Veteran was assessed with musculoskeletal back pain. He was noted to experience increased lumbar lordosis. 2011 VA medical records indicate that the Veteran sought treatment for his back pain and was prescribed pain medication. The Veteran’s pain was characterized as left low back pain with radiation along the left hip to the antero-lateral thigh. At that time, x-rays showed degenerative changes in the Veteran back. The Veteran was also given an MRI which showed left sacroiliitis, lumbar facet arthropathy- not clinically significant, and chronic pain syndrome. A November 2011 VA examination indicates a diagnosis of degenerative disc disease with left radiculopathy. The examiner assessed the Veteran’s range of motion, employment history, and medical history. The Veteran was found able to engage in a gainful occupation. A February 2012 VA examiner opined that the Veteran’s current lumbar spine disability was less likely than not related to his in-service back pain. In written correspondence the Veteran reported that he injured his back when he fell off a mountain in Korea and that he was only treated with pain killers at time. The Veteran reported that he was not allowed to see a doctor for his back until he was ready to separate from service, that he sought post-service back treatment and learned to live with the pain until it became “out of hand.” Pertinent evidence received since the October 2012 rating decision includes medical records and written statements from the Veteran. However, the treatment records essentially show only continued treatment for back problems. For example, 2014 and 2015 VA medical records indicate that the Veteran continued to experience low back pain and began experiencing bilateral radicular symptoms. He was started on new medication to address pain and inflammation. Private treatment records indicate that Veteran received spinal surgery in October 2015, consisting of right sided laminotomy, foramenotomy, partial facetotomy, and decompression of the nerve root. 2016 VA treatment records indicate that the Veteran experienced improvement in bilateral radicular symptoms after his back surgery, but still experienced some pain. Unfortunately, these records only show that the Veteran currently has a back disability, which is a fact that was known at the time of the previous denial. The Veteran also submitted a statement in April 2016 indicating that he has experienced progressive back problems since his in-service back injury. However, such contentions were clearly of record in October 2012 as the Veteran clearly described his history and contentions to the VA examiner. The Board finds that the evidence submitted since the October 2012 rating decision is new as it had not been previously considered. However, the evidence is not material, as it does not raise a reasonable possibility of substantiating the Veteran’s claim. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. However, while Shade creates a low threshold for reopening a claim, it is a threshold and the evidence presented in this case does not rise to that threshold. Essentially even if the claim were reopened, there would be no duty to assist triggered as there is no medical evidence of record that even suggests the Veteran’s back disability may be the results of his time in service. (Continued on the next page)   A VA examiner has already addressed the Veteran’s contention that his back disability was a continuation of his back complaints in service, but found that it was less likely than not that it was. While the Veteran has continued to assert that his back pain has continued since service, such was known both at the time of the examination and at the time of the previous denial. Accordingly, the previously denied claim of entitlement to service connection for a lumbar spine disability is not reopened. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel