Citation Nr: 18155231 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-19 911 DATE: December 3, 2018 ORDER New and material evidence has not been submitted to reopen the previously denied claim of entitlement to service connection for a L5-S1 lumbar laminectomy and bilateral diskectomy for an L5-S1 disc protrusion (“lumbar spine disorder”). FINDINGS OF FACT 1. An unappealed March 2009 rating decision denied service connection for a lumbar spine disorder. 2. The evidence received subsequent to the March 2009 rating decision does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for a lumbar spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1972 to May 1985. This claim is on appeal before the Board from an August 2012 rating decision. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a lumbar spine disorder. The Veteran seeks to reopen his previously denied claim of entitlement to service connection for a lumbar spine disorder. Even though the Agency of Original Jurisdiction (AOJ) reopened this claim in the August 2012 rating decision, the Board must first determine if the claim was properly reopened (i.e., if new and material evidence was actually received), and may only thereafter review the merits if new and material evidence is found. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). The AOJ, by a decision entered in March 2009, denied the Veteran’s claim for service connection for a lumbar spine disorder. The AOJ notified the Veteran of its decision and of his appellate rights in a letter dated that same month, but he did not initiate an appeal of the AOJ’s decision within one year. New and material evidence was also not received within a year of the decision. 38 C.F.R. § 3.156(b). As a result, the AOJ’s March 2009 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the March 2009 rating decision, service connection for a lumbar spine disorder was denied because it was not incurred in or caused by the Veteran’s active military service. The evidence received since the AOJ’s decision includes post-service VA and private treatment records and lay statements from the Veteran and his representative. This evidence is new because it has not previously been submitted. Duplicates of the Veteran’s service treatment records were also added into the record. However, the new evidence does not raise a reasonable possibility of substantiating the claim and thus is not material to the claim. The Veteran’s claim was previously denied because there was no nexus between his current lumbar spine diagnosis and his active military service. The Veteran’s lumbar spine disorder was found to be related to a prior workers compensation injury. A review of the medical evidence reveals there is still no nexus element. Specifically, the VA and private treatment records document a current lumbar spine disorder, but do not connect the Veteran’s current lumbar spine disorder to his active military service. In fact, the private treatment records support the previously obtained negative nexus opinion from the February 2009 VA examination. For instance, at a November 1988 private medical evaluation, the Veteran denied any low back pain prior to his March 1988 work injury. At a February 1991 private examination, the physician found that the Veteran’s current lumbar spine disorder was related to his March 1988 work injury and found no pre-existing medical conditions prior to this injury. As such, the Board finds that the additional medical evidence does not raise a reasonable possibility of substantiating the claim. Likewise, the Veteran’s lay statements submitted during the course of the appeal do not offer any additional material information or any substantive argument not previously considered by the AOJ in the March 2009 rating decision. The Veteran’s general assertions that his current lumbar spine disorder was the result of his active military service were previously considered. The Board finds the Veteran’s lay statements are cumulative and redundant and do not raise a reasonable possibility of substantiating his claim. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether the Veteran’s current lumbar spine disorder was incurred in or caused by his active military service) falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such an opinion. The only medical opinion of record addressing the claimed relationship is negative. No competent medical opinion linking his lumbar spine disorder to his active military service has been presented. New and material evidence has not been submitted and the Veteran’s request to reopen his claim is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel