Citation Nr: 20004049 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-08 997 DATE: January 16, 2020 ORDER The request to reopen the claim of entitlement to service connection for a herniated nucleus pulposus, L4-5, is denied. REMANDED Entitlement to service connection for a left lower extremity disability is remanded. FINDINGS OF FACT 1. Service connection for a herniated nucleus pulposus, L4-5, was denied by the Board of Veterans’ Appeals (Board) in a November 1959 decision on the basis that the Veteran’s herniated nucleus pulposus, L4-5, pre-existed service and his condition was not aggravated or increased in service. The Veteran did not appeal the decision. Thus, the decision is final. 2. Evidence received since the November 1959 Board decision is not new and material as to the issue of service connection for a herniated nucleus pulposus, L4-5, because the evidence is either an exact duplicate of evidence in the record or duplicative of evidence in the record prior to the November 1959 Board decision. CONCLUSIONS OF LAW 1. The November 1959 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100. 2. The evidence received since the November 1959 Board decision, which denied service connection for a herniated nucleus pulposus, L4-5, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1959 to May 1959. This matter comes before the Board on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2018 for further development. Whether new and material evidence has been received to reopen a claim of service connection for a herniated nucleus pulposus, L4-5. Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a herniated nucleus pulposus, L4-5, was denied by the Board in a November 1959 decision on the basis that the Veteran’s herniated nucleus pulposus, L4-5, pre-existed service and his condition was not aggravated or increased in service. He did not appeal the decision. Thus, the decision is final. Of record at the time of the November 1959 Board decision were service treatment records (STRs), including an April 1959 narrative summery by Dr. A. J. Schoepflin, May 1959 medical board proceedings, and a May 1959 clinical abstract by J. Rosegay. There was a certificate of attending physician dated September 1959 and a September 1959 letter from Mount Vernon Clinic. Finally, there was significant testimony from the Veteran, including that he disclosed to the induction examiner in service that he had injured his back prior to service. See October 1959 Board hearing. In September 2013, the Veteran re-submitted the September 1959 letter. In March 2016, he re-submitted the April 1959 narrative summary. These documents are duplicates. The Board notes that the heading for the September 1959 letter is missing, but the letter is otherwise an exact duplicate. In his March 2014 notice of disagreement (NOD), the Veteran cited to the April 1959 narrative summary and did not otherwise submit any new lay statements. In his March 2016 substantive appeal (VA Form 9), he once again cited the April 1959 narrative summary and reported that a back issue was found and mentioned to him at his induction physical and that it was not severe enough to keep him from serving. The documents submitted by the Veteran after the October 1959 Board decision are all duplicates of documents previously of record. Additionally, his lay statements referencing the April 1959 narrative summary are also duplicative of evidence already of record, because the April 1959 narrative summary was of record in November 1959. Lastly, his statement in his March 2016 VA Form 9 regarding his induction examination is duplicative or otherwise cumulative of his prior testimony in October 1959. Because of all the evidence received is redundant of evidence previously of record, the Veteran has not submitted new and material evidence, and the matter must be denied. The Board is grateful to the Veteran for his honorable service and regrets a more favorable decision could not be reached. REASONS FOR REMAND Entitlement to service connection for a left lower extremity disability. The Veteran reported that his left leg pain began in service and did not pre-exist service. See October 1959 Board hearing. A letter from a physician noted that the Veteran did not have sciatica pain of the left leg prior to his induction. See September 1959 correspondence. In his March 2014 NOD, he referenced current neurological issues. Because there are medical questions outstanding, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left lower extremity disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left lower extremity disabilities present during the appeal period (from September 2013). (b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must consider the Veteran and his physician’s near-contemporaneous reports that his left leg pain began in service and did not pre-exist service. 2. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, Associate Counsel 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.