Citation Nr: 20007950 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-41 545 DATE: January 30, 2020 ORDER 1. As new and material evidence has been received, the previously-denied claim for service connection for a lumbar spine disability is reopened. REMANDED 2. The reopened claim of entitlement to service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, is remanded. FINDINGS OF FACT 1. In an unappealed January 2010 rating decision, the regional office (RO) denied service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, based on a finding that the evidence did not support a nexus between the lumbar spine disability and service. 2. Evidence submitted subsequent to the January 2010 rating decision that denied service connection for a lumbar spine disability is not cumulative or redundant of evidence previously of record, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to September 1993. The Veteran had a video conference hearing before the undersigned Veterans Law Judge in September 2019. New and Material Evidence If a claim for 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claim on a de novo basis. 1. New and material evidence to reopen the previously denied claim for service connection for lumbar spine disability In December 2008, the Veteran filed a claim for service connection for a lumbar spine disability. In July 2009, the RO denied the claim based on a finding that while there was evidence of in-service complaints of low back pain, there was competent evidence that the current lumbar spine disability was not related to service. In August 2009, the Veteran submitted additional evidence and requested that VA reconsider the claim for service connection for a lumbar spine disability. In a January 2010 rating decision, the RO continued the denial of service connection for a lumbar spine disability, finding that the additional evidence received, which included statements from friends, neighbors, and co-workers, did not establish a nexus between the current disability and service. The RO notified the Veteran of this decision in a January 2010 letter, which included her appellate rights. The Veteran did not appeal the decision, nor did she submit new and material evidence within one year of the January 2010 notification letter. Thus, this decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In May 2013, the Veteran submitted additional evidence “for service[-]connected back condition.” In November 2013, VA informed the Veteran that it could not accept her May 2013 statement as a notice of disagreement because she had not appealed the January 2010 rating decision within one year. She was provided appeal rights in this letter, and did not appeal the May 2013 determination that her notice of disagreement was not timely to the January 2010 rating decision. In January 2016, the Veteran submitted an application to reopen the claim for service connection for a lumbar spine disability. She explained that when she filed her request for reconsideration after the July 2009 decision, which prompted the January 2010 rating decision, she meant for that to be a notice of disagreement, which she pointed out did not require a formal notice of disagreement at that time. She also wrote that after the January 2010 decision denying her claim, she submitted a VA Form 9, Appeal to the Board, and requested a hearing by a decision review officer. The Board has carefully reviewed the submissions that the Veteran mentioned included a notice of disagreement. In 2009, a notice of disagreement was defined by 38 C.F.R. § 20.201, which stated that a notice of disagreement was “[A] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result.” The regulation also provided that while special wording was not needed, the notice of disagreement must “reasonably be construed as disagreement with that determination and a desire for appellate review.” The August 2009 submissions from the Veteran do not meet these criteria. The representative wrote that he was submitting two documents in support of the Veteran’s claim, which included a “Request for reconsideration of claim” and a document giving VA permission to obtain VA medical records. In a VA Form 21-4138, Statement in Support of Claim, the Veteran wrote, “Please reconsider my claim after you review the records from the Saginaw VAMC.” The Board does not find that this document is an expression of dissatisfaction or disagreement, and shows a desire to contest the result or a desire for appellate review. The Veteran was asking that VA reconsider her claim, which the Board does not find meets the criteria for a notice of disagreement. Additionally, after the RO issued the January 2010 notification letter informing the Veteran that the denial of service connection for a lumbar spine disability was continued, there is no VA Form 9, Appeal to the Board, or substantive appeal asking for a hearing in the record. Thus, the January 2010 rating decision is final. The pertinent evidence of record at the time of the January 2010 rating decision included the Veteran's DD Form 214, service treatment records (STRs), private and VA treatment records, a May 2009 VA examination report, and lay statements. The service treatment records showed that the Veteran had complained of low back pain during service, that clinical evaluation of her spine at service discharge was normal, and she denied a history of recurrent back pain at service discharge. The lay statements documented that the Veteran was having back pain. The May 2009 VA examination report shows that a VA examiner, who reviewed the evidence of record, to include the in-service complaints of low back pain, found that the evidence did not support a finding that the in-service back complaints were indicative of a chronic condition. The Veteran now seeks to reopen her claim of service connection for a lumbar spine disability on the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in January 2010. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. For example, in a September 2019 VA medical opinion, the doctor of osteopathy provided a positive nexus between the Veteran’s lumbar spine disability and her period of service. This evidence is new because it has not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the evidence did not support a nexus between her lumbar spine disability and service. This evidence raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, See 38 C.F.R. § 3.156(a). The reopened issue of service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, is remanded, as discussed below. REASONS FOR REMAND 2. The reopened claim of entitlement to service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, is remanded. As the agency of original jurisdiction has not reviewed the claim on the merits, the Board must remand to allow it to do so. The matter is REMANDED for the following action: Consider the Veteran’s claim for service connection for a lumbar spine disability, to include right facet arthropathy at L5-S1, degenerative disc disease, and disc herniation, on the merits, and perform any development that is deemed warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.