Citation Nr: 1808669 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-33 983A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1972 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case was previously remanded by the Board in March 2017 and July 2017. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. FINDINGS OF FACT 1. A February 2000 Board decision denied the Veteran's claim for entitlement to service connection for a claimed low back disorder; the Veteran has not submitted a motion for reconsideration of the February 2000 Board decision and did not timely appeal that decision. 2. Evidence received since the February 2000 Board decision is new, but is not material and does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The February 2000 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has not been received to reopen a claim for entitlement to service connection for a low back disability; therefore, the claim is not reopened. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously submitted to VA. 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 generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In 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 appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim 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, 328 (1999). The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. To establish service connection for a disability on a direct-incurrent basis, the 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. Analysis The Veteran submitted a claim for entitlement to service connection for a low back disability in March 1993. A rating decision in June 1993 denied service connection for low back strain, and notice of the determination, and his appellate rights were issued that same month. No appeal was taken from the determination, and new and material evidence was not received within the one year thereafter to appeal the determination. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Generally, a VA decision becomes final if an NOD is not filed, and new and material evidence is not received during the one year period to appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.1100, 20.1103. However, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156(c), 20.1000(b). By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014). In correspondence received March 1994, the Veteran requested to reopen his claim for service connection for a low back disability. Evidence submitted in support of the claim to reopen included VA treatment records and private treatment records showing that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine. Additional evidence included the Veteran's service treatment records reflecting that the Veteran complained of back pain in March 1973. Pursuant to the provisions of 38 C.F.R. § 3.156(c) outlined above, in a July 1994 rating decision, the RO reconsidered and denied the Veteran's claim. The Veteran submitted a timely notice of disagreement with the denial of the issue in May 1995 and, following issuance of a statement of the case in June 1995, submitted a timely substantive appeal in August 1995. The Board issued a decision in February 2000 denying the Veteran's claim for entitlement to service connection for a claimed low back disorder. In the decision, the Board explained that there was no medical evidence establishing a nexus between the Veteran's current low back disability and any injury or disease which was incurred in or aggravated by service. The February 2000 Board decision further explained that the medical evidence of record suggested that the Veteran's low back disability was related to his HIV, a December 1981 motor vehicle accident or an April 1982 injury. The Veteran did not file a motion for reconsideration of the decision, nor was such reconsideration ordered by the Chairman of the Board. The Veteran also did not appeal the Board decision to the Court within the prescribed period of time. Accordingly, the February 2000 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Evidence received since the final February 2000 Board decision that is relevant to the claim for entitlement to service connection for a low back disability includes the Veteran's Social Security Administration (SSA) records, VA treatment records, a March 2016 VA examination and an April 2017 VA addendum opinion. Upon careful review of the evidence of record, the Board finds that new and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for a low back disability. For evidence to be new and material it would have to tend to show a causal relationship between the Veteran's current disability and the in-service injury, event or disease. The Board finds that the evidence received since the February 2000 Board decision, including the Veteran's SSA records, VA treatment records and VA examination do discuss the current nature of his low back disability. However, they do not demonstrate that the Veteran's current low back disability is etiologically related to his active service. Specifically, the March 2016 VA examination noted the Veteran's diagnosis of degenerative arthritis of the spine. The March 2016 VA examiner opined that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner stated there are several medical opinions in the record offering different opinions as to the origin of the Veteran's low back disability, including a December 1981 motor vehicle accident and a September 1990 work related injury. The April 2017 VA examiner also opined that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner stated that the Veteran's separation examination was marked normal as to the spine, and the Veteran marked no recurrent back pain. The VA examiner further identified that the Veteran previously attributed his back disability to a December 1981 motor vehicle accident. Therefore, the VA examinations are new in that they were not considered by VA in the prior final decision. However, they are not material because when considered either alone or in conjunction with previous evidence of record, they do not relate to an unestablished fact necessary to substantiate the claim. In summary, the February 2000 Board decision denied entitlement to service connection for a low back disability because the evidence of record did not provide a nexus between the Veteran's low back disability and his active service. The record shows that, in rendering that decision, the Board considered the Veteran's in-service injury and current disability. The February 2000 Board decision became final because the Veteran did not appeal the determination to the Court within the prescribed period of time, nor file a motion for reconsideration of the decision, nor was such reconsideration ordered by the Chairman of the Board. The Veteran now seeks to reopen the claim. He again asserts that his current low back disability is related to his active service. He also provided new evidence relating to the current nature of his disability. However, the newly submitted evidence, to include the March 2016 VA examination and April 2017 VA addendum opinion, are not material because they are essentially duplicative of the evidence previously considered in the prior final decision, and merely restatements of evidence considered by the Board in rendering the prior final decision, namely that the Veteran has current low back disability. Furthermore, evidence associated with the record since the prior final decision is not material as it does not relate to an unestablished fact necessary to substantiate the claim, namely that there is a relationship between his current low back disability and service. As such, new and material evidence to reopen the finally disallowed claim of entitlement to service connection for a low back disability has not been submitted, the benefit of the doubt doctrine is not for application, and the claim for entitlement to service connection for a low back disability is not reopened. Gilbert v. Derwinski, 1 Vet. App. 4 (1990); 38 U.S.C. § 5107 (b) (2017); 38 C.F.R. § 3.102 (2017). ORDER New and material evidence has not been received, and the claim for entitlement to service connection for a low back disability is not reopened. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs