Citation Nr: 18158221 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-14 735 DATE: December 14, 2018 ORDER New and material evidence not having been received, the claim of entitlement to service connection for a lumbar spine disability is not reopened. FINDINGS OF FACT 1. Entitlement to service connection for a lumbar spine disability was previously denied in a December 2010 rating decision, and the Veteran did not perfect an timely appeal. 2. No evidence has been received since the December 2010 rating decision which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. CONCLUSION OF LAW A December 2010 rating decision denying entitlement to service connection for a lumbar spine disability is final; as new and material evidence has not been received, the criteria for reopening the claim of entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to January 1968. In January 2009, the Veteran claimed entitlement to service connection for residuals of a back injury. In an April 2009 statement, the Veteran wrote that he had injured his back when he fell from an artillery gun in August 1988 while serving with the reserve, and that he was wounded with shrapnel in his back in 1966. The Veteran’s private treatment records received at that time indicated that the claimant had a lumbar spine disability, specifically, a private treatment record from October 2006 noted that the Veteran had a diagnosis of lumbar degenerative disc disease. Earlier private treatment records from 1999-2002 also note a history of low back pain. In a February 2010 rating decision, entitlement to service connection for lumbar degenerative disc disease was denied. The rating decision stated that there was no objective medical evidence showing that lumbar degenerative disc disease was related to military service, and there was no evidence that arthritis manifested to a compensable degree within one year of separation from active duty. In September 2010, the Veteran wrote that he would like to start a claim of entitlement to service connection for a back disorder. A December 2010 rating decision was issued which again denied the claim, stating that the Veteran had not submitted any evidence showing that his lumbar spine disorder was connected to service, and the service treatment records and private treatment records did not show that the condition was incurred in or aggravated by military service. In December 2011, the Veteran submitted a letter expressing his disagreement with the prior rating decision. This letter was accepted as a notice of disagreement with the denial of entitlement to service connection for a back disorder. An October 2012 statement of the case was issued addressing the denial of entitlement to service connection for lumbar degenerative disc disease. The Veteran did not perfect a timely appeal to that, and new and material evidence was not received within the remainder of the appeal period. Thus, the December 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran next submitted a claim of entitlement to service connection for a lower back injury in January 2014. That claim was denied in an August 2014 rating decision on the basis that no new and material evidence had been submitted. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). To establish entitlement to service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence at the time of the December 2010 rating decision established that the Veteran had a current lumbar spine disability, and he had provided statements describing injuring his back in service. While this verified the existence of a present disability and of a possible in-service injury, the claim was denied on the basis that the third necessary element was missing, i.e., there was no medical evidence of a causal relationship between the present disability and the in-service injury. Since the December 2010 rating decision, the Veteran has not submitted any medical evidence or argument addressing whether his lumbar spine disability is related to service. The only relevant evidence that has been received since 2010 are additional VA and private treatment records which show continued treatment for a lumbar disorder symptoms and diagnoses. A June 2014 evaluation stated that the Veteran had chronic low back pain, lumbar spondylosis, and lumbar facet syndrome. At a February 2016 evaluation, the Veteran reported continuous back pain, even after back surgery in 2011. In June 2018, the Veteran was treated for lumbar spine degenerative disc disease, lumbar radiculopathy, lumbar spondylosis, and spinal stenosis. This evidence only establishes that the Veteran continues to have a current diagnosis of a lumbar spine disability, a fact which was already established at the time of the December 2010 rating decision. No other medical evidence has been received which indicates or even suggests that any lumbar spine disability is related to his service. No evidence has been received in which any medical professional has related the Veteran’s low back symptoms to service, nor has the Veteran indicated that he has ever been told by a medical professional that his current back disorders are related to an in-service injury. While the Veteran has continued to assert that he has had continuous back pain since service and that he believes that his current back disability was caused by an injury in service, his lay assertions are not sufficient to provide probative medical nexus evidence, as he is a lay person and not trained in any medical field. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Veteran had already submitted these assertions prior to the December 2010 rating decision. Therefore, his statements that he believes his lumbar spine disorder is related to an in-service injury had already been included in the record, and does not constitute “new” evidence. In sum, the evidence that has been received since the last final decision on the matter is duplicative of other evidence already of record or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. The evidence received since December 2010 is either cumulative, irrelevant, or redundant of the evidence of record at the time of the last final denial, and does not raise a reasonable possibility of substantiating the claim. Thus, new and material evidence has not been submitted, and the requirements have not been met to reopen the claim of entitlement to service connection for a lumbar spine disability. The claim is denied. Until the appellant meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel