Citation Nr: 21071103 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-31 136 DATE: November 29, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for lumbar degenerative disc disease is denied. New and material evidence having not been received, the application to reopen the claim of service connection for right lower extremity radiculitis is denied. New and material evidence having not been received, the application to reopen the claim of service connection for left lower extremity radiculitis is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a right elbow condition is denied. FINDINGS OF FACT 1. Service connection for degenerative disc disease of the lumbar spine was denied by the Regional Office (RO) in a March 2012 rating action; although the Veteran initiated an appeal of this decision, he did not perfect the appeal by filing a timely substantive appeal following the issuance of a November 2014 Statement of the Case. 2. Since the March 2012 rating decision (and November 2014 Statement of the Case) denying service connection for degenerative disc disease of the lumbar spine, the additional evidence, not previously considered, is duplicative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. Service connection for radiculopathy of the right lower extremity as secondary to degenerative disc disease of the lumbar spine was last denied by the RO in a July 2014 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 4. Since the July 2014 decision, additional evidence for the basis for the denial, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of service connection for radiculitis of the right lower extremity. 5. Service connection for radiculopathy of the left lower extremity as secondary to degenerative disc disease of the lumbar spine was last denied by the RO in a July 2014 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 6. Since the July 2014 decision, additional evidence for the basis for the denial, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of service connection for radiculitis of the left lower extremity. 7. Service connection for a right elbow disorder was last denied by the RO in a July 2014 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 8. Since the July 2014 decision denying service connection for a right elbow disorder, additional evidence, not previously considered, has not been received, thus a reasonable possibility of substantiating the claim has not been raised. CONCLUSIONS OF LAW 1. The criteria for new and material evidence having been received, the application to reopen the claim of service connection for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for new and material evidence having been received, the application to reopen the claim of service connection for right lower extremity radiculitis have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for new and material evidence having been received, the application to reopen the claim of service connection for left lower extremity radiculitis have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for new and material evidence having not been received, the application to reopen the claim of service connection for a right elbow condition have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to February 1993. The Board notes that the Veteran initially requested to attend a hearing on appeal before a Veterans Law Judge. See June 2017 VA Form 9, substantive appeal. However, in an August 2019 statement from the Veteran's representative, the Veteran's hearing request was withdrawn. See August 2019 VA Form 21-4138. New and Material Service connection for lumbar degenerative disc disease was denied by the RO in a March 2012 rating decision and notification letter. Although the Veteran initiated an appeal of this decision by filing a notice of disagreement (NOD) in August 2012, he did not perfect the appeal by filing a timely substantive appeal following the issuance of a November 2014 statement of the case (SOC). Therefore, the decision became final. Regarding the Veteran's claims of service connection for right lower extremity radiculitis, left lower extremity radiculitis, and a right elbow condition, these were most recently denied by the RO in a July 2014 rating decision. The Veteran did not file an NOD or submit new and material evidence within one year of that decision; therefore, the July 2014 rating decision is also final. In such cases, it must first be determined whether new and material evidence has been received such that the claims may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). The question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board has characterized the Veteran's claims accordingly. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The application to reopen the claim of service connection for lumbar degenerative disc disease As noted, service connection for lumbar degenerative disc disease was originally denied by the RO in a March 2012 decision. Evidence of record at that time included the Veteran's service treatment records (STRs) that showed he was treated for complaints of low back pain in June 1988; August and October 1998 post-service treatment records demonstrating that the Veteran had degenerative disc disease of the lumbar spine; and a July 2011 statement from the Veteran's private doctor that the Veteran's low back disorder was the result of an injury that he sustained while in the military. Also of record was the report from an October 2011 VA examination wherein it was opined that the Veteran's current back disorder, degenerative disc disease of the lumbar spine, was not related to service. The rationale was that there was no documentation of a back injury during service and the 1988 incident of low back pain was unrelated to the current diagnosis. Prior to issuance of the November 2014 SOC and considered at that time, VA received a May 2012 statement from a fellow serviceman who related that the Veteran had sustained a significant back injury in a serious fall while he was on active duty. The Veteran's application to reopen the claim of service connection was received in September 2016. Evidence received the prior final rating decision includes a November 2015 VA examination with a negative nexus opinion with the same rationale as the October 2011 VA opinion. In addition, a duplicate copy of the May 2012 lay statement regarding the Veteran's in-service back injury was received. Thus, the evidence submitted by the Veteran consists primarily of duplicate records and a duplicate opinion of that which was of record at the time of the prior denial. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). As such, the claim must remain denied. The application to reopen the claim of service connection for right and left lower extremity radiculitis The Veteran claims service connection for radiculitis of each of his lower extremities as secondary to the degenerative disc disease of the lumbar spine. The Board notes that service connection was last denied by the RO in a July 2014 rating decision. The last decision denial on any basis is to be finalized Evans v. Brown 9 Vet. App. 273 (1996). The Board finds that, as new and material evidence has not been found to reopen the claim of service connection for degenerative joint disease of the lumbar spine, the claims of service connection for lower extremity radiculitis, which are based upon that primary claim, must be similarly denied. The application to reopen the claim of service connection for a right elbow condition As noted, service connection for a right elbow condition was last denied by the RO in a July 2014 decision. Evidence of record at the time of that denial included the Veteran's STRs and post-service treatment records that did not show evidence of a right elbow injury of disability of the right elbow. Service connection was denied on the basis that there was no demonstration of a current right elbow disability. (Continued on the next page) Evidence received subsequent to the July 2014 rating decision does not demonstrate that the Veteran currently has a right elbow disability. As there continues to be no demonstration of a current disability of the right elbow, new and material evidence has not been received and the application to reopen the claim must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.