Citation Nr: 18160579 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-17 478 DATE: December 27, 2018 ORDER New and material evidence having not been received, the claim for service connection for a chronic low back strain with Scheuermann’s disease is not reopened. FINDINGS OF FACT 1. In an August 1976 decision, the Board denied service connection for a chronic low back strain with Scheuermann’s disease. The Veteran did not file a motion to vacate, file a motion for reconsideration, or file a motion to revise the decision based on clear and unmistakable error. 2. The evidence received since the August 1976 Board decisions is duplicative, cumulative, or does not relate to unestablished facts necessary to substantiate the claim for a chronic low back strain, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to warrant reopening of the previously denied claim for service connection for a chronic low back strain with Scheuermann’s disease. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1971 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In order to reopen a claim which has been 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 of 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 a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. After reviewing the evidence of record, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for a chronic low back strain. The Veteran’s claim for service connection for a chronic low back strain was previously considered and denied by the Board in an August 1976, decision. The Board specifically denied the claim because the Veteran had a back disorder that preexisted service, and there was no clinical or radiographic evidence showing that there was an increase in the underlying pathology over that which existed prior to service. The Board concluded that the Veteran’s back disorder was not aggravated in service. The Veteran did not submit any motion to vacate, revise, or reconsider the decision. Therefore, the decision became final. The evidence received since the August 1976 Board decision includes VA treatment records, a March 2012 private medical opinion, and statements from the Veteran. The March 2012 private medical opinion issued by D.C. (initials used to protect privacy), a chiropractor, noted that the Veteran had diagnoses of a chronic strain of the lumbar spine, a chronic strain of the thoracic spine, and radiculopathy. The examiner concluded that, based upon examination, objective findings, and the Veteran’s subjective complaints, the Veteran did sustain injuries during service that were consistent with his current diagnoses. However, the opinion did not address that the Veteran had a documented back disorder which preexisted service. Rather, the opinion only addressed that the Veteran sustained injuries during service. Thus, the opinion did not consider the correct legal standard and does not show that any injury in service aggravated his preexisting back disorder. As such, the opinion is not new and material. With regard to the VA treatment records and the Veteran’s statements, the Board notes that they do not contain any evidence showing that the Veteran’s preexisting back disorder was aggravated during service. Rather, the records and statements document diagnoses and symptoms related to the Veteran’s back disorder, and his assertions that he injured his back during service. They do not address his preexisting back disorder or whether his military service aggravated his back disorder. Therefore, the Board finds that the VA records and statement do not constitute new and material evidence. The Board notes that, in a March 2012 statement, the Veteran indicated that the prior Board decision was erroneous because his service records and claims file were not reviewed. However, the August 1976 Board decision references treatment that the Veteran receiving during service, as well as treatment the Veteran received after separation from service. Thus, there is no indication in the record that the Veteran’s service treatment records and claims file were not reviewed. Significantly, the evidence missing at the time of the August 1976 Board decision continues to be absent. Specifically, there remains no evidence that the Veteran’s preexisting back disorder was aggravated by service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the previously denied claim for service connection for chronic low back strain with Scheuermann’s disease. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel