Citation Nr: 18159594 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-18 512 DATE: December 19, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for low back syndrome is not reopened. FINDINGS OF FACT 1. In a final decision issued in January 2012, the Regional Office (RO) denied the Veteran’s petition to reopen a claim for service for low back syndrome. This claim had been previously denied in an April 1987 rating decision. 2. Evidence added to the record since the last final denial in January 2012 is cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for low back syndrome. CONCLUSIONS OF LAW 1. The January 2012 decision that denied the petition to reopen a claim for service connection for low back syndrome is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for low back syndrome. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from March 1961 to March 1969 and from July 1972 to September 1986, to include service in the Republic of Vietnam. This matter is before the Board of Veteran’s Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran’s claims of service connection for a low back condition was re-opened by the RO in the September 2014 rating decision as discussed below. 1. The petition to reopen a claim for service connection for low back syndrome. VA is required to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as provided in 38 U.S.C. § 5108 (2012). Reopening a claim for service connection which has been previously and finally denied requires that new and material evidence be presented or secured since the final last denial of the claim. Id. See also Evans v. Brown, 9 Vet. App. 273 (1996); Graves v. Brown, 8 Vet. App. 524 (1996). “New evidence,” means existing evidence not previously submitted to VA. “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. New and material evidence can be neither cumulative nor repetitive of the evidence of record at the time of the last prior final denial of the claim which is being sought to be reopened and must raise a reasonable possibility of substantiating the clam. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In the case Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim then reopened under 38 U.S.C. §5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The Court also held that the law of new and material evidence should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). An April 1987 rating decision denied the Veteran’s claim for service connection for a low back syndrome. Of record at the time of the April 1987 rating decision were the Veteran’s service treatment records and a November 1986 examination report. The RO found that the one episode of low back pain during service had apparently resolved and that no residuals were found on the last examination. Consequently, the RO denied the claim. In April 1987, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for low back syndrome was received until July 2011, when VA received his application to reopen such claim. Therefore, the April 1987 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). A January 2012 rating decision reopened the claim for service connection for low back syndrome and denied the claim. Evidence considered in the January 2012 rating decision includes VA and Tricare treatment records, various private treatment records and VA examination reports dated in September 2011 and December 2011. The RO noted that the Veteran had injured his back at work in January 1995 and in August 2002 and that he had been diagnosed with degenerative changes of the spine in August 2002. The RO further noted the opinion of a VA examiner that the Veteran’s degenerative disk disease was part and parcel of the natural aging process, that it was influenced by age, genetics and axial loading and that the degenerative changes seen on VA examination were not caused by, related to or aggravated by service. Consequently, the RO denied the claim as the condition was not incurred in or aggravated by service. In January 2012, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for low back syndrome was received until March 2014, when VA received his application to reopen such claim. Therefore, the January 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). In this regard, the Board again notes that the Veteran’s claim for service connection was previously denied as the record did not establish that his low back syndrome was incurred in or was aggravated by service. The newly received evidence likewise fails to demonstrate such a relationship. The Veteran filed a petition to reopen the claim for service connection for low back syndrome in March 2014. Evidence received since the January 2012 rating decision included various VA and private treatment records. These treatment records showed ongoing complaints and treatments for the lumbar spine; however, no etiology opinion was contained in these records. Additionally, while the Veteran has submitted additional statements regarding his low back syndrome during the course of the appeal, such are duplicative of his contentions that were previously of record at the time of the January 2012 rating decision. Specifically, he simply continues to contend that his low back syndrome is related to service and/or his service-connected status-post left knee replacement and right knee status-post unicompartmental arthroplasty. Therefore, the Board finds that the evidence received since the January 2012 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection. Consequently, new and material evidence has not been received to reopen such claim and the Veteran’s appeal must be denied. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel