Citation Nr: 21007349 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-33 086 DATE: February 9, 2021 ORDER The application to reopen a claim for service connection a gastrointestinal disorder (GI) is denied. The application to reopen a claim for service connection for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from November 1993 to December 2002. He has been rated at 100 percent disabled based on unemployability since April 2014. 2. In an unappealed December 2008 rating decision, the Regional Office (RO) denied service connection for a GI disorder, claimed as acid reflux, on the basis there was no relation between the Veteran’s active service and his GI disorder. The decision similarly denied service connection for a low back disorder, claimed as degenerative disc disease, on the basis that the disorder was not caused by service. 3. The evidence submitted since the December 2008 rating decision, to the extent that it is new, is not material with regard to the claims of service connection for a GI disorder or a low back disorder. CONCLUSIONS OF LAW 1. The December 2008 rating decision, which denied service connection for a GI disorder and a low back disorder, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the December 2008 rating decision is not new and material; the claim for a GI disorder is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. The evidence received since the December 2008 rating decision is not new and material; the claim for a low back disorder is not reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, in connection with his appeal, the Veteran testified at a February 2020 hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Turning to the laws and regulations, prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” Evidence is “material” if it is “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was originally denied service connection for these claims on the basis that the evidence failed to show the disorders occurred in or were caused by service. The evidence of record at the time consisted of service treatment records (STRs) and post-service medical treatment records. While the Veteran filed a notice of disagreement, he did not appeal, and the December 2008 rating decision became final. Gastrointestinal Disorder The evidence received since the December 2008 rating decision included additional post-service medical treatment records noting the Veteran’s acid reflux. In a CT scan of the abdomen and pelvis in February 2014, an umbilical hernia was noted. In a May 2015 VA examination of esophageal conditions, GERD was diagnosed as was a diaphragmatic hernia, among other diagnoses. However, nothing in this examination or any other post-service treatment records provide any new evidence that Veteran’s acid reflux or hernia were incurred in service. Therefore, the evidence, while new, fails to raise the reasonable possibility of substantiating the claim. Based on the above, the medical evidence does not support the Veteran’s request to reopen his claim of service connection for a GI disorder. Low Back Disorder Turning to the low back disorder, the evidence received since the December 2008 rating decision includes additional post-service medical treatment records noting the Veteran’s low back disorder. This low back disorder is now claimed as herniated vertebrae. The additional post-service medical treatment records are not material as they provide no new evidence that the Veteran’s low back disorder was incurred in service. Therefore, the evidence, while new, fails to raise a reasonable possibility of substantiating the claim. Based on the above the medical evidence does not support the Veteran’s request to reopen his claim of service connection for a low back disorder. As to the Veteran’s lay statements and sworn testimony, he reported that he experienced reflux in service but did not get treatment. As to the back, he related that he experienced back pain in service and was told that he pulled a muscle but did not go to the doctor. He indicated that he sought treatment for his back two years after discharge and had a herniated disc. These statements essentially duplicate his contentions all along. As the RO has previously considered the nature of his contentions, this evidence is not “new” as required under the applicable regulatory and statutory provisions. Therefore, his lay statements alone do not support reopening the claims. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.