Citation Nr: 18129062 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-23 347A DATE: August 23, 2018 ORDER New and material evidence sufficient to reopen the claim for service connection for a back disability, to include as secondary to a service connected right ankle disability, has not been submitted. FINDING OF FACT Evidence added to the record since the previous final is cumulative of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. CONCLUSION OF LAW New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 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). The Veteran’s original claim for service connection for a back disability was denied in a February 2008 rating decision because there was no evidence the Veteran’s back disability was incurred in or caused by the Veteran’s time in service or proximately due to the Veteran’s right ankle disability. The Veteran filed a notice of disagreement and a statement of the case (SOC) was issued in September 2009, continuing the denial of service connection for a back disability. The Veteran did not appeal and therefore, the decision became final. The Veteran submitted the present claim for service connection for a back disability in September 2011. An August 2012 rating decision denied reopening of the claim because no new and material evidence had been submitted. The Veteran appealed. The relevant evidence received prior to the previous final denial include the Veteran’s service treatment records (STRs), examinations for the Veteran’s back, treatment records, an internet article about how foot pain should not be ignored as it could lead to back pain, and statements by the Veteran, including statement that he has been told my several of his doctors that his back disability is due to his right ankle disability. The relevant evidence received after the previous final denial include treatment records, Social Security Administration (SSA) records, and statements by the Veteran, including statements again about how several of the Veteran’s doctors have told him his back disability is due to his right ankle disability. The evidence submitted after the previous final denial is “new” in that it was not of record at the time of the prior denial. However, the evidence is not “material” because it does not relate to the unestablished facts necessary to substantiate the Veteran’s claims and does not address the basis for the prior denials. The evidence submitted does not show the Veteran’s back disability was incurred in or due to his time in service nor does it show the Veteran’s back disability is proximately due to his service connected ankle disability. While the submitted internet article talks about a potential connection between low back pain and foot pain, the article simply provides speculative generic statements not relevant to the Veteran’s claim, Wallin v. West, 11 Vet. App. 509, 514 (1998), and does not raise the possibility that the Veteran’s back disability is proximately due to his service connected right ankle disability. Simply stated, no one would suggest there could not be a potential connection between low back pain and foot pain, however, this does not provide “material” evidence to reopen the claim. (Continued on the next page)   Therefore, because none of the evidence submitted from the previous final denial is both new and material, the Veteran’s claim to reopen his claim for service connection for a back disability must be denied. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel