Citation Nr: 21073672 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-34 120 DATE: December 9, 2021 ORDER New and material evidence not having been received, the petition to reopen the claim of entitlement to service connection for chronic low back pain is denied. FINDINGS OF FACT 1. An unappealed July 2004 rating decision denied the claim for service connection for chronic low back pain. 2. The evidence associated with the claims file subsequent to the July 2004 rating decision is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for chronic low back pain. CONCLUSION OF LAW The July 2004 rating decision that denied entitlement to service connection for chronic low back pain is final; new and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a low back pain. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1988 to February 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Oakland, California. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in February 2021. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in May 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the RO to obtain records related to the Veteran's current Worker's Compensation claim and updated VA treatment records. On remand, the RO obtained the outstanding Worker's Compensation claims file and updated VA treatment records have been associated with the record. A June 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on her behalf. Thus, the RO substantially complied with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action. Claim to Reopen Low Back Pain The Veteran seeks reopening the previously denied claim of entitlement to service connection for a low back pain. Specifically, the Veteran testified at her Board hearing that the physical rigors of service, to include prolonged sitting and standing and or physical training testing, aggravated her preexisting low back disorder. As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court has held that 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 Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's original claim for entitlement to service connection for chronic low back pain was received by VA in February 2004 and was originally denied in a rating decision decided in July 2004. Specifically, the rating decision indicated that the evidence did not show that the Veteran's chronic low back pain was either incurred in or caused by an injury or other type of evidence during her active service based on her service medical records which showed no evidence of any complaints or treatment for a back disability or any evidence of any back disorder at the time of her bicycle accident in August 1991. The rating decision further noted that the Veteran's service discharge examination had noted a history of dorsal scoliosis since childhood that was manifested by back pain that was treated with physical therapy with good results. As a result, her claim was denied. Evidence considered in the July 2004 rating decision includes service medical records and post-service treatment records. In July 2004, the Veteran was advised of the decision and her appellate rights. However, no further communication regarding her claim for entitlement to service connection for chronic low back pain was received until April 2011, when VA received a petition to reopen such claim. Therefore, the July 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from July 2004 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Additional evidence received since the July 2004 rating decision included post-service treatment records, Worker's Compensation records, testimony provided at a Board hearing and several statements submitted by the Veteran. In April 2004, the Veteran stated she had chronic low back pain since falling off her bicycle in 1991, that continued during her active service. See VA Form 21-4138 Statement in Support of Claim, April 28, 2004. Similarly, in 2013, the Veteran again asserted that her low back pain was caused by an injury during active service. See VA Form 21-4138 Statement in Support of Claim, August 5, 2013. In June 2014, the Veteran reported her low back pain was due to long periods of standing during her active service. See VA Form 21-4138 Statement in Support of Claim, June 5, 2014; see also Notice of Disagreement, April 18, 2015; and see also VA Form 9, July 18, 2016. Finally, the Veteran asserts that she injured her low back during an obstacle course training during basic training, and also when she fell off of a bicycle during active service. See VA Form 21-526EZ, Fully Developed Claim, May 17, 2021. The Board finds that while some of the newly received evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material as it does not specifically address the reason the claim was previously denied. Specifically, the evidence does not show that the Veteran's low back pain is etiologically related to her active service. Specifically, the Board notes that the Veteran testified at her February 2021 Board hearing that the physical rigors of her service, such as prolonged standing and sitting, aggravated a preexisting low back disorder, similar to her statements in August 2013, June 2014, April 2015, and July 2016. However, her statements do not pertain to the reason why her claims were previously denied, namely, a lack of nexus pertaining to the etiology of her currently diagnosed low back disorder and active service. Even presuming the credibility of her statements, the Veteran is competent to report her symptoms but she is not competent to offer an opinion as to the etiology of her currently low back disorder. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board has also considered the applicability of 38 C.F.R. § 3.156(c) as it appears that additional service personnel records may have been received subsequent to the July 2004 rating decision. In this regard, such provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Veteran's personnel records were received after the July 2004 rating decision. The Board finds that these records are not relevant for the purposes of reconsidering the Veteran's claim for service connection for a chronic low back pain. Pertinently, these records do not show that the Veteran has a current lumbar spine disorder that was either occurred in or caused by service. Therefore, these service records are not relevant to this issue before the Board. Accordingly, the Board will not reconsider the Veteran's claim for service connection for a chronic low back pain pursuant to 38 C.F.R. § 3.156(c). Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claim of entitlement service connection for chronic low back pain. Accordingly, reopening of such claim is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.