Citation Nr: 18160213 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-05 688A DATE: December 26, 2018 ORDER Because new and material evidence has not been received to reopen a previously denied claim of service connection for degenerative disc disease (DDD) of the lumbar spine, the appeal is denied.   FINDING OF FACT The evidence received since an April 2007 rating decision denying service connection for DDD of the lumbar spine is cumulative and redundant of evidence of record at the time of the prior denial and, when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, or otherwise raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the previously denied claim of service connection for DDD of the lumbar spine are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to January 1975. The case is on appeal from a May 2015 rating decision. In a February 2017 VA Form 9, the Veteran requested a Board hearing. In February 2017 and September 2017, the Veteran withdrew the hearing request. See 38 C.F.R. §20.704(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Whether new and material evidence has been received to reopen a previously denied claim of service connection for DDD of the lumbar spine. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In order to reopen a claim which was denied by a final decision, the claimant must present new and material evidence. 38 U.S.C § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence or record to an unestablished fact necessary to substantiate the claim; which is 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 which raises the possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regulations do not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Rather the Board must focus on whether the evidence, taken together with evidence of record, could at least trigger the duty to assist by providing a medical opinion. Id. Analysis By an April 2007 rating decision, a claim of service connection for a low back condition (characterized as degenerative disc disease at L3-L4) was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in May 2015. No new evidence or notice of disagreement was received by VA within one year of the issuance of the April 2007 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The pertinent evidence associated with the claim’s file at the time of the prior decision consisted of the Veteran’s service treatment records (STRs), post-service VA treatment records dated July 2003 through January 2007, and a VA examination dated March 2007. During the March 2007 VA examination, x-rays revealed that there was straightening of the normal lumbar lordosis, which can be seen with muscle strain. The examiner noted that “there is subtle disk space narrowing at the L3-L4 and L4-5 with associated mild anterior osteophytes. No fractures, lytic or blastic lesions are noted.” The Veteran was then diagnosed with mild degenerative disk disease prominent at L3-4 and L4-5. In the April 2007 decision, the RO denied the claim because, although STRs account for a motor vehicle accident (MVA) in August 1973, there was not medical evidence for consideration showing continuity of care nor complaints for the claimed low back condition until approximately 30 years later, when the Veteran complained about it at the VA examination a referenced above. The evidence added to the file since the April 2007 decision consists of unrelated VA treatment records, service connection claims, VA examinations and rating decisions pertaining to bilateral hearing loss, tinnitus, knee disabilities and an application for VA pension benefits. VA treatment records do not account for any low back pain or complaints since the last rating decision in 2007 to present. The Veteran seeks to reopen a claim of service connection for a degenerative disk disease. On his May 2015 claim form, he contends that his DDD at L3-L4 is related to a MVA suffered while on active duty in August 1973. The Board points out that although the Veteran did not expressly present that service connection theory during his initial claim, it was properly considered by the RO as raised by the record. The record reflects that, in October 2016, the Veteran failed to report to a scheduled VA examination. A second VA examination was scheduled for December 2016. Once again, the Veteran failed to report. Notwithstanding, a medical opinion from a VA physiatrist was requested in September 2017. The examiner provided that after reviewing the entire claim file, in his medical opinion it is less than 50 percent probability that the Veteran’s “currently diagnosed lumbar strain with mild DDD, prominent L3-4 and L4-5—is related to the incident of an MVA and lumbar pain noted in military service.” The VA physiatrist further opined that the medical evidence does not support this claim since review of the Veteran’s STRs revealed no continuity of symptoms related to the back. The examiner pointed out that she was the same doctor who conducted the 2007 VA examination and noted that, during the examination, the Veteran did not claim a link between the MVA and his back condition. Additionally, “there was not a continuity of symptoms from service to present.” See VA medical opinion dated September 2017. In this case, the Veteran simply asserts that there is a link between his DDD of the lumbar spine and the MVA in 1973, without submitting any competent medical evidence to support his contention or identifying such. The facts of a current diagnosis of DDD of the lumbar spine and the existence of the in-service MVA injury were already established at the time of the April 2007 rating decision. Thus, any evidence towards the current disability and in-service injury element of the claim is cumulative and redundant. A medical opinion addressing the possible relationship between the two was obtained, but it weighs against the claim. Thus, while new, this evidence does not raise a reasonable possibility of substantiating the claim. The Board notes that the RO’s action of obtaining the medical opinion in and of itself does not constitute new and material evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007). Accordingly, the evidence since the final April 2007 rating decision is not new and material under 38 C.F.R. § 3.156(a). Even with consideration of the low threshold set forth in Shade, the Veteran has not submitted any new and material evidence that relates to an unestablished fact necessary to substantiate the claim, i.e., competent evidence of a nexus. For these reasons, reopening the claim of service connection for DDD of the lumbar spine is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel