Citation Nr: 19155697 Decision Date: 07/18/19 Archive Date: 07/18/19 DOCKET NO. 18-42 413 DATE: July 18, 2019 ORDER New and material evidence having not been received, the claim of entitlement to service connection for low back condition, as secondary to residuals, fracture, right tibia and fibula with right knee meniscal tear is not reopened; the appeal is denied. FINDINGS OF FACT 1. An unappealed July 2015 rating decision denied entitlement to service connection for a low back condition. 2. Evidence regarding a low back condition received since the July 2015 rating decision is not new and material in that it is cumulative, was previously considered by decision makers, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2015 rating decision that denied entitlement to service connection for a low back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1984, this period was considered honorable for VA purposes. The Veteran also served on active duty from July 1984 to June 1988, this period was considered dishonorable for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, IN. The Veteran submitted a Notice of Disagreement (NOD) in September 2017. A Statement of the Case (SOC) was issued in August 2018. The Veteran perfected a timely substantive appeal via VA Form 9 in August 2018. There was additional evidence added to the record after the issuance of the September 2018 Supplemental Statement of the Case (SSOC) both prior to and after certification of the issue to the Board. The included evidence continues to show the Veteran’s contention that his low back disability is secondary to his right leg disability. Thus, the Board finds that this additional evidence was neither relevant such that the issuance of a supplemental statement of the case was required as set forth in 38 C.F.R. § 19.37(a), nor pertinent such that solicitation of a waiver was necessary as set forth in 38 C.F.R. § 20.1304(c). 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for a low back condition. A claim of entitlement to service connection for a low back condition was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Also, the duty to provide a medical examination or obtain a medical opinion “applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured.” See 38 C.F.R. § 3.159(c)(4)(iii); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007) (holding that once the Board decides that a claim cannot be reopened, the duty to provide an appellant with a new medical examination is extinguished and the adequacy of any new examination becomes moot). Here, the Veteran’s original claim of entitlement to service connection for a low back condition was denied in an October 1997 RO decision. The July 1997 VA examination report showed the Veteran reported that he believed that he now had low back pain associated with his limping on the right side as he had been advised by his previous doctor. He denied a history of trauma to the back. X-rays showed early degenerative changes at L5-S1. The examiner indicated that he did not believe the changes had anything to do with the Veteran’s injury that he had on his right lower extremity in service. The RO denied service connection for a low back condition as secondary to the right leg condition. The Veteran did not file an NOD and no new and material evidence was submitted within a year of the rating decision. The October 1997 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran sought to reopen the claim for secondary service connection, but the June 2008 rating decision continued the previous denial. A May 2008 VA examiner found that the Veteran’s low back disability was not related to a service connected injury. The Veteran submitted an NOD in August 2008. He maintained that his "lower back has hurt me for years even while in service my medical records have shown that I've always complained about my back hurting." An SOC was issued in March 2009, in which the RO continued to find that no new and material evidence had been submitted. The Veteran did not submit a Form 9, nor did he submit any new and material evidence within a year of that rating decision. The June 2008 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran sought to reopen the claim again, and in a July 2015 rating decision, the RO found that no new and material evidence had been submitted. He did not file an NOD and no new and material evidence was submitted within a year of the rating decision. The July 2015 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the July 2015 rating decision included service treatment records, military personnel records, post-service VA treatment records dated beginning in 1993, VA examination reports, and statements from the Veteran. In February 2017, the Veteran filed a request to reopen his claim of entitlement to service connection for a low back condition. Additional evidence received since the July 2015 rating decision includes VA treatment records, a June 2017 VA examination report, lay statements and SSA records. In particular, in a statement received in April 2017 from K.M., she maintained that she had known the Veteran for “over four years.” She witnessed him complain of back pain on a regular basis. In a statement received in April 2017, the Veteran maintained that about 20 years ago he was advised by a doctor that due to the way he walked he would have severe back pain. He maintained that VA should have done an MRI on his back in 1993 which would have revealed that he had problems. Now his back pain was constantly causing shoulder and neck pain far worse than as first reported back in 1993. In a statement received in April 2017, the Veteran’s wife maintained that if it were not for his leg injury, the Veteran would not have all of these problems with his back, depression, and all the pain in his body. The June 2017 VA examination report shows the VA examiner found that the Veteran’s back is not secondary to his right leg condition. In the September 2017 Notice of Disagreement, the Veteran maintained that his right leg disability led to his back condition. The Veteran reported on the results of research the Veteran’s daughter conducted on the Internet. The research indicated that an improper body alignment can cause stress on the joints, including the spine. The Board finds that the new lay statements and lay summaries of articles reviewed are cumulative and redundant of lay statements previously considered by the RO. Specifically, the evidence continues to show that the Veteran believes that his low back disability is secondary to his right leg disability based on the theory that his right leg caused altered body mechanics resulting in a back disability. The June 2017 VA opinion is against the claim. Thus, the new evidence does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for low back condition, and do not raise a reasonable possibility of substantiating the claim. Accordingly, the claim of entitlement to service connection for a low back condition is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Daley, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.