Citation Nr: 20008047 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-46 635 DATE: January 30, 2020 ORDER The claim to reopen service connection for a low back disability is denied. The claim for service connection for neurological impairment of the lower extremities, to include as secondary to a low back disability is denied. FINDINGS OF FACT 1. The claim for service connection for a low back disability was initially denied in a September 2009 Board decision. 2. The evidence received since the September 2009 Board decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim for service connection. 3. The Veteran’s neurological impairment of the lower extremities was not present in service or until years thereafter and is not etiologically related to any incident of active military service or a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Neurological impairment of the lower extremities was not incurred in or aggravated by active military service and is not caused or aggravated by a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 3, 1976 to August 20, 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Whether new and material evidence has been received to reopen service connection for a low back disability. The claim for service connection for a low back disability (characterized as a lumbar spine disability) was initially denied in a September 2009 Board decision. The Board found that the evidence did not establish a nexus between a current lumbar spine disability and the Veteran’s reported injuries during active service. The Veteran did not appeal the Board decision and it became final. 38 U.S.C. §§ 7103, 7104, 7105(c); 38 C.F.R. §§ 20.1100, 20.1103. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court further held that 38 C.F.R. § 3.156 (a) “must be read as creating a low threshold,” and that “the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade at 117. The Court further noted that “[t]he Board’s analysis of the issue of reopening must first be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision.” Id. at 121. The evidence received since the December 2009 Board decision includes treatment records from various private and VA health care providers, as well as lay statements from the Veteran and his family members and friends describing his disability. This evidence is new as it was not of record at the time of December 2009 Board decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. Additionally, the evidence does not raise a reasonable possibility of establishing the claim, and in the case of the new lay statements, is cumulative and redundant of the evidence previously before the Board. The new medical records document treatment and complaints for chronic low back pain. The Veteran underwent a lumbar laminectomy and foraminotomy with a private surgeon in December 2010 and an August 2015 MRI identified multiple lumbar disc bulges and bilateral foraminal stenosis. The private and VA treatment records also document the Veteran’s reports that his back problems began following a 1976 injury during active service. However, none of the treating private or VA providers has rendered a medical opinion addressing the etiology of the Veteran’s claimed back disability. The evidence received since the December 2009 Board decision does not include any medical evidence of a link between the Veteran’s low back condition and service. With respect to the lay evidence added to the record since December 2009, the statements by the Veteran and his friends and family are cumulative and redundant of evidence considered by the Board, including reports of a continuity of symptoms since service which the Board previously determined were not credible. The Board has carefully and specifically considered the Court’s decision in Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claim or would at least trigger the VA’s duty to assist by providing a medical opinion. The competent medical and lay evidence does not include competent evidence of a nexus between the Veteran’s current low back disability and his reported injuries during service. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claim. 2. Entitlement to service connection for neurological impairment of the lower extremities, to include as secondary to a low back disability. The Veteran contends that service connection is warranted for neurological impairment (radiating pain, loss of sensation, etc.) for the bilateral lower extremities as secondary to a low back disability. As a preliminary matter, the Board notes that since service connection is not warranted for the Veteran’s lumbar spine disability, service connection cannot be granted for the associated lower extremity neurological impairment on a secondary basis. 38 C.F.R. § 3.310. The Board will, however, also consider whether service connection is warranted for the claimed disability as directly due to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board finds that the preponderance of the evidence is against the claim for service connection on a direct basis. Service records are negative for any treatment or complaints related to the Veteran’s lower extremities. The service records also do not document the falls and injuries reported by the Veteran. There is no evidence of the claimed disability until decades after service: a February 1986 report from a private hospital notes a previous evaluation for low back pain and difficulty with the feet dated in 1985. Private records also document regular findings of lumbar radiculopathy affecting both lower extremities from July 1997. This evidence dates the onset of neurological impairment to at least 10 years after service. Furthermore, the Veteran’s treating physicians have consistently attributed his neurological impairment of the lower extremities to a nonservice-connected lumbar spine disability. The Veteran’s complaints of radiating pain, loss of sensation, and lower extremity weakness are characterized as lumbar radiculopathy by both VA and private neurologists. The Veteran has also not reported a continuity of symptoms with respect to this disability. The competent medical evidence of record therefore establishes that the Veteran’s neurological impairment of the lower extremities is not etiologically related to any incident of active duty service. The Board has considered the Veteran’s statements in support of his claim, but finds he is not competent to provide a nexus opinion regarding the etiology of his disability. In addition, the Veteran has not provided any statements in support of service connection on a direct basis; rather, his contentions focus on service connection as secondary to the claimed low back condition. The Board must therefore conclude that the preponderance of the evidence is against the claim and it is denied on both a direct and secondary bases. 3 U.S.C. § 5107(b). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.