Citation Nr: 20004785 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-60 753 DATE: January 21, 2020 ORDER As new and material evidence has not been received, the appeal to reopen the claim for entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. A January 1970 rating decision denied entitlement to service connection for a low back disorder. The Veteran was notified of that decision and initiated an appeal. The denial was confirmed in a May 1970 rating decision, but he did not perfect the appeal after the June 1970 statement of the case was issued. 2. The evidence received since May 1970, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a low back disorder. CONCLUSIONS OF LAW 1. The January and May 1970 rating decisions, which denied the Veteran’s claim of entitlement to service connection for a low back disorder, are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the May 1970 rating decision is not new and materia, so the claim of entitlement to service connection for a low back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to June 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned during a video conference hearing; a transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a January 1970 rating decision, the RO denied service connection for a low back disorder based on a determination that the diagnosed congenital disorders of hemivertebrae and lumbar scoliosis existed prior to service and were not aggravated by service. Service treatment records show he complained of back pain during basic training and that he had back pain with exertion. See December 1969 STR – Medical. The Veteran filed to reopen his claim and after he was afforded a VA examination in April 1970 that contained the same findings of the Veteran having only a congenital disorder, a May 1970 rating decision confirmed the earlier denial on the basis that there was no aggravation. Since he did not perfect the appeal after the June 1970 statement of the case was issued, these decisions became final. See 38 U.S.C. § 7105. Further no new and material evidence was received within one year of that decision. The claim to reopen was received in December 2014. Evidence received since the May 1970 rating decision is not new and material. Treatment records from the Swedish Medical Center only show the Veteran had low back pain and was seeking treatment in the form of medical marijuana. See February, March, and May 2015 Medical Treatment Record – Non-Government Facility. These records are new but are cumulative rather than material since the evidence previously considered already showed the Veteran had pain associated with his low back disorder. In November 2019, the Veteran testified that he slipped and fell on the stairs in service, which resulted in an injury to his back. He was hospitalized for three to five days and after continually complaining, he was separated by the Medical Board. He was not aware he had a low back problem prior to service until he was told this after his injury. He denied having any pain prior to service. His hearing testimony is not new. The Veteran’s testimony that he had no back symptoms prior to service is cumulative, since he made a statement to this effect in his January 1970. See January 1970 Statement in Support of Claim. His testimony is essentially duplicative of his prior assertion made in 1970; his military service caused his back disability. The element missing in 1970 is still missing; this is there is no indication of a nexus or relationship between his service and his back disability. As new and material has not been received, the claim for entitlement to service connection for a lumbar disorder is not reopened. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.