Citation Nr: 19123735 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-25 944 DATE: March 29, 2019 ORDER The application to reopen a claim for service connection for a low back condition is denied. FINDINGS OF FACT 1. In an August 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied a claim of service connection for a low back condition; the Veteran did not perfect an appeal to this decision. New and material evidence was not received within one year of notification. 2. The material added to the record after the August 2013 rating decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied service connection for a low back condition is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received after the August 2013 rating decision denying service connection for a low back condition is not new and material and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1987 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by RO. Whether new and material evidence has been received to reopen a claim for service connection for a low back condition Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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 is defined as 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied the Veteran's claim of service connection for a low back condition in an August 2013 rating decision. The RO found that the Veteran’s condition neither occurred in nor was caused by service. The Veteran was advised of the rating decision and his appellate rights by letter dated in September 2013. The evidence in August 2013 included the service treatment records. The included the Veteran’s pre-separation report of medical history where he described having back pain “only when sleeping on [a] poor surface.” However, a military medical examiner noted no abnormalities as to the Veteran’s back. The Veteran was assigned a “1” rating under the PULHES profile system, indicating that the Veteran was then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Also in the record in August 2013 was a July 2013 VA examination report. The examiner opined that the Veteran’s lumbar condition was less likely than not due to or related to his military service. The Veteran was informed of this decision and apprised of his appellate rights, but he did not perfect a timely appeal. Therefore, the August 2013 rating decision became final. 38 C.F.R. § 20.1103. In September 2014, the Veteran requested that his claim be reopened. The evidence received since the August 2013 rating decision includes lay statements submitted by the Veteran reiterating his previously rejected assertion that his low back condition was incurred in or aggravated by his service. Also received are additional medical records. The statements are cumulative in nature and repetitive of his previous assertions. The more recent treatment records do not serve to support his lay assertions that his low back condition was incurred in or aggravated by his service. The medical treatment records received in November 2014, September 2015, and June 2016 confirm that the Veteran has a current disability. However, they contain no evidence that the Veteran’s low back condition was incurred in or aggravated by his service. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant’s current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). These more recent treatment records and examination reports do not tend to substantiate that the Veteran’s low back condition was incurred in or aggravated by his service. This evidence is cumulative. The Veteran has not submitted material evidence to reopen his claim and the appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. T. Emmart, Associate Counsel