Citation Nr: 20060792 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 17-60 127 DATE: September 15, 2020 ORDER New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. In an August 2014 rating decision, a VA regional office (RO) denied reopening of the claim of service connection for a lumbar spine disorder. Although notified of the denial in an August 2014 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year. 2. Evidence associated with the file since August 2014, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The August 2014 rating decision denying service connection for a lumbar spine disability is final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2019). 2. As pertinent evidence received since the August 2014 denial is not new and material, the criteria for reopening the claim for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1966 to September 1968. The Veteran initially requested a Videoconference hearing in his November 2017 Substantive Appeal (VA Form 9). In an October 2019 statement, he withdrew this hearing request in writing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (e) (2019). Petition to reopen a previously denied claim Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO 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. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability In November 1973, the RO denied the claim because the Veteran did not demonstrate a current lumbar spine disability. Although notified of this decision by a November 1973 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In April 2004 the Veteran petitioned to reopen the claim. In a September 2004 rating decision, the RO reopened the claim but denied the underlying service connection claim. Although notified of this decision by a September 2004 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In April 2006 the Veteran again petitioned to reopen the claim. In a November 2006 rating decision, the RO denied reopening the claim because the evidence submitted was not new and material. Although notified of this decision in a November 2006 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In July 2010 the Veteran again petitioned to reopen the claim. In October 2010 the RO denied reopening the claim because the evidence submitted was not new and material. The Veteran did not initiate a timely appeal, and the October 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2013, the Veteran petitioned to reopen the claim. In an August 2014 rating decision, the RO reopened the claim but denied the underlying service connection claim. Although notified of the decision in an August 2014 letter, the Veteran did not initiate an appeal or submit new and material evidence within one year of the rating decision. The denial is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In August 2016, the Veteran again petitioned to reopen the claim. In a July 2017 rating decision, the RO denied reopening because the evidence submitted was not new and material. The Veteran filed a timely notice of disagreement (NOD), and perfected the appeal following the November 2017 statement of the case (SOC). Evidence submitted since the final August 2014 rating decision consists of duplicate copies of the Veteran’s service treatment records, duplicate and new private treatment records, and new VA treatment records. New and material evidence has not been received to reopen a claim for service connection for a lumbar spine disability. The Veteran’s service treatment records are duplicative of records previously submitted and considered. The new private and VA treatment records do not suggest any nexus between the Veteran’s current lumbar spine diagnoses and his service and are therefore not material. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant’s current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). By itself or when considered with the evidence previously of record, none of the recently-submitted evidence relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disability, and does not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim for service connection. The requirements to reopen the claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claims has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.