Citation Nr: 21074587 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-46 001 DATE: December 15, 2021 ORDER The petition to reopen the claim of service connection for a back disability is denied. FINDINGS OF FACT 1. An October 2006 rating decision denied service connection for a back disability; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Some of the evidence received since the October 2006 rating decision is new, but it does not relate to an unestablished fact necessary to substantiate the claim for service connection for a back disability, nor does it raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 the Veteran provided testimony before the undersigned Veterans Law Judge by videoconference hearing. In a December 2019 decision, the Board, in pertinent part, found that new and material evidence had not been received to reopen a claim for service connection for a back disability. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded that part of the Board's December 2019 decision that that denied the petition to reopen the claim of service connection for a back disability. In June 2021 the Board remanded the case for further development. 1. The petition to reopen the claim of service connection for a back disability The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. The JMPR noted that the Veteran's testimony and information noted in VA treatment records indicate that there are outstanding treatment records pertinent to the Veteran's back claim from Presbyterian Hospital, Dr. Cervone, and Dr. Lipp that VA has not obtained, and that the Veteran should be asked to provide the records or a release so that VA can obtain them. Following the Board's June 2021 remand, the RO sent the Veteran a letter dated in June 2021 requesting that he complete the necessary releases. In an August 2021 letter, the Veteran's attorney requested an additional 90 days to allow time to complete the releases. An August 2021 letter from the RO granted this request. In November 2021, the Veteran attorney submitted a written statement stating that it would be futile to submit the requested release forms. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has been unable to assist the Veteran in obtaining these records due to his own inaction. The Veteran's attorney also contended that the Veteran's VA Form 21-4138 dated in December 2013 should be found to constitute new and material evidence sufficient to reopen the claim, and that a VA examination should be scheduled to evaluate the reopened claim. The Board disagrees. Service connection for a back disability was denied in an October 2006 rating decision on the basis that the evidence did not demonstrate that the Veteran had a current chronic back disability that was related to his period of service. At the time of the October 2006 rating decision, the pertinent evidence of record included service treatment records that noted the Veteran was treated for low back strain in July 1964, and a July 2006 VA examination report on which the Veteran reported back pain. The Veteran did not file a notice of disagreement with the October 2006 rating decision, and no evidence was associated with the record within one year of the October 2006 decision. In April 2013, the Veteran sought to reopen his claim. The RO declined to reopen his claim in a February 2014 rating decision. The appeal stems from that decision. Evidence received since the October 2006 rating decision includes VA treatment records, a statement from the Veteran, and the Veteran's hearing testimony. Having reviewed the record, the Board finds that new and material evidence has not been received to reopen this claim. While the VA medical records are new, they are not material because they do not show a chronic back disability related to the Veteran's period of service; a January 2010 treatment record notes the Veteran's report of low back pain for several months. The Veteran's statements and hearing testimony do not provide evidence of a current back disability associated with service; rather, he attributes his back pain to his service-connected pilonidal cyst residuals. On the December 2013 VA Form 21-4138, the Veteran reports that he has constant low back pain, with limited sitting, bending and walking. These statements are essentially duplicative of the report of back pain and problems sitting that the Veteran reported to the July 2006 VA examiner, which were of record at the time of the October 2006 rating decision. None of the newly submitted evidence establishes a current chronic back disability associated with service. Thus, it does not relate to an unestablished fact necessary to substantiate the claim. Further, the Veteran has not presented any new evidence that would create a reasonable possibility of substantiating the claim or which would trigger the need for a VA examination or medical opinion pursuant to Shade. The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the final disallowed claim of service connection for a back disability, the benefit of the doubt doctrine is not applicable. Accordingly, the petition to reopen the previously denied claim for service connection for a back disability is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.