Citation Nr: 19106948 Decision Date: 02/01/19 Archive Date: 01/29/19 DOCKET NO. 18-34 189 DATE: February 1, 2019 ORDER Reopening of entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. In a December 1978 decision, VA denied entitlement to service connection for a low back disorder; 2. The evidence received since the December 1978 decision is not new and material. CONCLUSIONS OF LAW 1. The December 1978 rating decision is final. 38 U.S.C. § 7105 (West 2014). 2. The criteria for reopening or reconsideration of the claim of entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from March 1959 to December 1962. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2018, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2018). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103 (2018). A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C.A. § 7107(a)(2) (West 2014). Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included among the presumptive chronic diseases. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Whether new and material evidence has been received to reopen a claim seeking service connection for a low back disorder. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision makers and material evidence is 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). At any time after VA issues a decision on a claim, if 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 the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 100 (2010). For purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a December 1978 decision, VA denied a claim of entitlement to service connection for a low back disorder. Although notified of the RO’s decision and of his right to appeal, the Veteran did not initiate an appeal of that decision (see 38 C.F.R. § 20.200 (2018)). As will be discussed below, new and material evidence was not received within the appeal period, or at any time since that decision. See 38 C.F.R. § 3.156(b). The December 1978 rating decision is the last disallowance on any basis. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened). At the time of the December 1978 rating decision, the evidence established Shedden element (1). An October 1978 Clinical Note established a diagnosis herniated nucleus pulposus of L5-S1 (Record 12/04/1978). At the time of the December 1978 rating decision, the evidence did not establish Shedden element (2). While the October 1978 Clinical Note included the Veteran’s assertion that he injured his back in service lifting heavy objects, and experienced symptoms in service, service treatment records revealed no injury or disease of the low back in service. The evidence also established that the Veteran was involved in a motor vehicle accident on June 16, 1962 (Record 07/18/1966 at 21). However, the subsequent examination revealed no pertinent complaints or diagnoses regarding the low back. Moreover, a report of medical examination performed on December 6, 1962, revealed normal clinical findings for the spine (Record 07/18/1966 at 8). A physical profile rating of L-1 was assigned. The L factor concerns the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. The number 1 rating indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). A report of medical history completed by the Veteran on the same day as the examination revealed his account that he had no history of, or current, arthritis or painful joints (Record 07/18/1966 at 29). At the time of the December 1978 rating decision, the evidence also did not establish Shedden element (3). As VA concluded there was no injury or disease in service, the nexus element could not be substantiated. Evidence received since the December 1978 decision includes additional statements and testimony from the Veteran and his representative. The Veteran testified that he injured his back lifting communication equipment onto a truck. He testified that he experienced low back symptoms during his period of service. These statements and testimony simply reiterate what the Veteran had previously asserted. While they provide additional detail, they do not provide a different theory of entitlement; nor do they address any unestablished fact in a way that raises a reasonable possibility of substantiating the claim, or that would justify additional development to attempt to substantiate the claim. See Shade, supra. This evidence is cumulative and redundant of evidence previously of record and is not new and material evidence. The Board notes that the Veteran’s service records were obtained and considered at the time of the December 1978 decision, and that no additional pertinent service department records have been received since that decision. See 38 C.F.R. § 3.156(c). Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for a low back disorder has not been received. As such, the December 1978 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen either of the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp