Citation Nr: 20043710 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-41 343 DATE: June 29, 2020 ORDER The petition to reopen the previously denied claim for service connection for low back disability is denied. The petition to reopen the previously denied claim for service connection for right ankle disability is denied. FINDINGS OF FACT 1. An unappealed November 2008 rating decision denied service connection for low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. 2. An unappealed September 2009 rating decision denied service connection for right ankle disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The November 2008 rating decision denying the claim for service connection for lumbosacral strain is final; and new and material evidence has not been received to reopen the claim. 8 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§3.156(a), 3.160(d), 20.1103. 2. The September 2009 rating decision denying the claim for service connection for right foot disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1975 to September 1995 in the United States Army. The Veteran died in September 2018. See Notification Letter (September 2018). The appellant is the Veteran’s surviving daughter who has been substituted in this appeal. See VA Form 21-0847 (Request for Substitution) (September 2018) & Appeal Process Request Letter (Notice of grant of substitution) (April 2019). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. A claim that has been denied in an unappealed Regional Office (RO) or unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 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. Finality of Board decisions are governed by 38 C.F.R. § 20.1100. Finality of determinations of the AOJ where issue is not appealed are governed by 38 C.F.R. § 20.1103. 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). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade supra. 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for low back disability. During his lifetime, the Veteran set out no specific contention with his claim, but it appears he believed his back disability had its onset in service. His claims for service connection for low back disability was previously consider by VA adjudicators and denied—and most recently it was denied in a November 2008 rating decision. The Board concludes that a November 2008 rating decision denying the claim for service connection for low back disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§3.156(a), 3.160(d), 20.1103. VA received his original claim for service connection for low back disorder in October 1995. See VA Form 21-526 (October 1995). A February 1996 rating decision denied the claim because there was no current disability. The Veteran appealed to the Board. A January 1999 Board decision denied claim because, although there was evidence of a low back disorder, the evidence did not establish that it was linked to in-service injury or disease—noting that the only evidence linking the current disorder to service was the Veteran’s own statements. VA notified the Veteran of this decision and how to appeal. He did not appeal that decision to the Court of Veterans’ Appeals. Therefore, the January 1999 Board decision became final. 8 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1100. A December 2007 rating decision denied the claim for service connection for low back disability because the evidence did not show a low back disability linked to the Veteran’s active service. VA notified the Veteran of the decision in a December 2007 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the December 2007 rating decision became final. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. A November 2008 rating decision denied the claim for service connection for low back disability because the evidence did not show a low back disability linked to the Veteran’s active service. VA notified the Veteran of the decision in a December 2008 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the November 2008 rating decision became final. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. In October 2010, VA received from the Veteran a request to reopen the previously denied claim for service connection for low back disability. See VA Form 21-4138 (October 2010). A May 2010 rating decision denied the claim and this appeal arises from that adverse determination. Evidence of record at the time of the prior final disallowance included lay and medical evidence. The lay evidence included the Veteran’s claims for service connection for the back, his request for an examination of his back, and argument from his representative indicating that he had filed his claim soon after service discharge. The medical evidence included the Veteran’s service treatment records (STRs) and VA treatment records dated after service separation. STRs reflect that the Veteran presented for back pain in November 1976, assessed as possible mild vertebral spasm secondary to fever and upper respiratory infection. A November 1978 STR reflects that the Veteran received treatment for muscle spasm on both sides of lower back. An August 1987 STR reflects that he sustained a back contusion when he slipped and fell on stairs, landing on right buttock. Paravertebral spams were noted. A February 1993 STR reflects treatment of back strain. An August 1994 STR reflects complaint of stiff neck down to the upper third of back. STRs include reports of examination. A January 1984 report of examination shows normal clinical evaluation of the spine. The Veteran’s February 1995 retirement examination similarly reflects normal clinical evaluation of the spine and that the Veteran denied recurrent back pain. He reported swollen/painful joints along with foot trouble. VA treatment records reflect that, in May 1997, the Veteran was found minimal disc narrowing at L5-S1 level of low back based on x-ray. Evidentiary submissions received by VA since the prior final disallowance in November 2008 consist of lay and medical evidence to include VA treatment records, a January 2011 VA examination report, and lay statements. The 2011 VA examination report reflects a diagnosis of degenerative joint disease of the spine with associated low back pain that is less likely than not caused by or the result of in-service injury or disease. The examiner noted the Veteran’s medical history. By history, the Veteran “fell inside of an armored tank when the tank was struck by an RPG round” and he had onset of back pain the next day. Also, by history, the Veteran reported that he was diagnosed with arthritis of the back by Orlando VA Clinic in 1997. The examiner considered the Veteran’s normal clinical evaluation on service separation examination as well. The examiner found that the evidence did not show chronicity of back symptoms to support a favorable finding. VA medical records reflect treatment for low back pain. The Veteran’s statements, claims, continue to reflect that the Veteran’s belief that he is entitled to service connection for low back disability. Here, none of the recent evidentiary submission tend to substantiate the claim or cure any prior evidentiary defect. In this regard, the evidence does not include competent evidence that tends to show or suggest that the Veteran has a current disability that had its onset in service; or that arthritis manifested within one year after service discharge; or that any current disability is due to or a result of in-service injury or disease, to include any of the complaints noted in service or injury. Therefore, new and material evidence has not been received in this matter. Accordingly, the petition to reopen is denied. The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).To the extent that the January 2011 VA medical opinion is inadequate, the Board notes that, because it has been determined that new and material evidence has not been presented to reopen the low back claim, the adequacy of this new examination and opinion already provided is moot. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see also 38 C.F.R. § 3.159(c). 2. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for right ankle disability. During his lifetime, the Veteran contended that he had a right ankle disability related to his military service. His claim for service connection for right ankle disability was denied—and most recently in a September 2009 rating decision. The Board concludes that a September 2009 rating decision denying the claim for service connection for right ankle disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. VA received an original VA disability application in October 1995, which did not include a right ankle claim. VA received from the Veteran his claim for service connection for right ankle disorder in July 1999. See VA Form 21-4138 (July 1999). A February 2000 rating decision denied service connection for right ankle injury because there was no current disability—noting that, while STRs showed treatment for right ankle injury, it had resolved without residuals. VA notified the Veteran of this decision in an April 2000 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the decision became final. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. An August 2001 rating decision denied service connection for right ankle injury because there was no current disability. VA notified the Veteran of this decision in an August 2001 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the decision remained final. 338 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. A September 2009 rating decision denied the claim for service connection for right ankle disorder because the current disability was not etiologically linked to in-service injury or disease. The RO reviewed the claim based on records showing convalescence following surgery, noting a calcific soft tissue growth was removed from the Veteran’s right ankle. VA notified the Veteran of this decision in a September 2009 letter and how to appeal. See Notification Letter (September, 2009). VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the decision became final. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. Evidence of record at the time of the prior final disallowance in September 2009 consisted of lay and medical evidence. The lay evidence included the Veteran’s claims. The medical evidence included the Veteran’s STRs and VA treatment records dated after service separation. STRs reflect that that, in August 1981, the Veteran was assessed with ankle sprain following twisted right foot injury and that he had full range of motion. STRs show that he sustained a right ankle sprain in May 1983 while playing basketball and was placed in a short walking cast—but x-rays were negative. The Veteran’s February 1995 retirement examination reflects normal clinical evaluation of the lower extremities although he reported a history of swollen/painful joints along with foot trouble—which was explained by the examiner (physician elaboration) as a corn between toes and the joint complaints appeared to be related to the knees as the Veteran reported that his knees ache weekly. VA treatment records show that, in September 2008, the Veteran had surgical removal of a calcific soft tissue growth of the right ankle. A December 2008 VA treatment note show that the Veteran was evaluated for bilateral ankle complaints, which disclosed no evidence of arterial insufficiency of right lower extremity unlike the left. A January 2009 VA treatment podiatry note reflects that the Veteran had had a right medial ankle exostectomy and has chronic nerve pain of the right ankle. A January 2009 VA neurology note reflects findings for right neuropathic pain. Evidentiary submissions received by VA since the prior final disallowance in September 2009 include VA treatment records, a January 2011 VA examination, and lay statements. The January 2011 VA examiner considered the Veteran’s reports of in-service right ankle injury; but, concluded that a right ankle injury was less likely than not etiologically related to service. While a chronic right ankle arthritis disability was found, the there was no continuity of symptomatology noted of right ankle treatment within one year of separation to present. VA treatment records show treatment for right ankle pain and arthritis. However, the record does not include any etiology opinion linking the Veteran’s right ankle disability to service, nor do the records evidence a continuity of symptomatology of right ankle treatment within one years of separation from service. Here, none of the recent evidentiary submission tend to substantiate the right ankle claim or cure any prior evidentiary defect. In this regard, the recent evidentiary submissions do not include competent evidence that tends to show or suggest that the Veteran has residuals of in-service right ankle injury; or that any current disability is due to or a result of in-service injury or disease, to include any of the complaints noted in service or injury. Therefore, new and material evidence has not been received in this matter. Accordingly, the petition to reopen is denied. The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).To the extent that the January 2011 VA medical opinion is inadequate, the Board notes that, because it has been determined that new and material evidence has not been presented to reopen the low back claim, the adequacy of this new examination and opinion already provided is moot. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see also 38 C.F.R. § 3.159(c). (Continued on the next page)   . C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.