Citation Nr: 21008572 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-42 732 DATE: February 17, 2021 ORDER New and material evidence has not been received and the appellant’s service connection claim for lumbar spine disability is denied. FINDINGS OF FACT 1. A January 1984 rating decision denied entitlement to service connection for a back condition. The appellant was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of that rating decision. 2. Evidence submitted since the January 1984 rating decision, when considered by itself or in connection with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating whether the appellant’s claimed lumbar spine disability is etiologically related to service. CONCLUSIONS OF LAW 1. The January 1984 rating decision which denied the appellant’s claim of entitlement to service connection for a back condition, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the January 1984 rating decision is not new and material, and the claim of entitlement to service connection for lumbar spine disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from June 1975 to August 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). New and Material Lumbar Spine Disability The appellant’s claim for service connection for lumbar spine disability was originally denied in a January 1984 rating decision. The appellant was notified of the decision. However, as the appellant did not file a notice of disagreement with the decision and new and material evidence was not received within one year of notice of that decision, it is final. The Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the appellant’s service treatment records (STRs) were completely negative for any evidence related to a lumbar spine condition. It was also noted that the Veteran was treated by a chiropractor in March 1979. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. At the time of the January 1984 rating decision, the record contained STRs including a June 1975 enlistment examination noting a normal spine and the appellant denied any recurrent back pain. He did report having frequent or severe headaches. In this regard, the appellant reported having headaches every 2 days. A review of the STRs show the appellant was treated for headaches in July 1975, and the clinician noted an inflamed throat and that the appellant’s neck was “O.K.” An August 1975 discharge memorandum shows the appellant declined to undergo a separation examination. Thereafter, an August 20, 1975 STR shows the appellant reported that he had undergone no change in his medical condition since his previous examination. The claims file also contained a November 1983 letter from the appellant’s treating chiropractor, Dr. Gallagher, who noted that the appellant had been a patient since March 1979, and had been treated for subluxations of the cervical, dorsal and lumbar spine. Additionally, in a January 1984 VA Form 21-4176, Report of Accidental Injury, the appellant reported that during basic training, he was hit in the head by a duffel bag that was thrown off a truck. Since the January 1984 rating decision, evidence added to the claims file includes a June 2014 VA medical record showing the appellant complained of chronic low back pain. A chest X-ray study revealed significant disc disease. An August 2014 VA medical record noted that an MRI study revealing degenerative disc disease (DDD) at L4-L5 and L5-S1 with vacuum phenomenon and endosteal sclerosis of the contiguous endplates. The MRI also revealed mild broad-based bulging of the disc at L3-L4, and diffuse broad-based bulging of the degenerated disc at L4-L5. See VA Medical Records Received September 2014. In a September 2014 VA Form 21-4138, Statement in Support of Claim, the appellant asserted that during boot camp, he was hit in the head by a duffle bag which jammed his spine, knocked his vertebrae out of place and pinched a nerve. A September 2014 VA medical record shows the appellant reported chronic back pain related to an injury during basic training. He denied any recent trauma. Additionally, a December 2014 VA medical record shows the appellant reported the onset of his back pain occurred as a result of being struck by a duffel back during service 40 years prior. See VA Medical Records Received January 2015. Lastly, in his November 2015 VA Form 9, Substantive Appeal, the appellant asserted that his STRs documented an injury during service. The evidence added to the claims file is not new and material as it does not support a finding that the appellant sustained a lumbar spine disability that is related to service. At the time of the January 1984 denial, there was already evidence of a current lumbar disorder. The Veteran asserts the same contentions as he did before the January 1984 denial. In fact, evidence added to the claims file is substantively cumulative and redundant of evidence previously considered; i.e., that the appellant has a currently diagnosed lumbar spine condition which he asserts was caused by being hit in the head by a duffle bag during service. However, despite the appellant’s assertion that the STRs document an in-service injury, a review of the STRs does not reveal any treatment for an injury, to include any injury caused by being hit by a duffel bag. Additionally, the STRs do not document any treatment related to a lumbar spine condition. Instead, the STRs show that the Veteran denied any recurrent back pain during his enlistment examination, and he denied any change in his medical condition at separation from service. The STRs also document that the appellant reported having a headache condition with episodes every 2 days at entry to service, and that he was treated for headaches once in July 1975. A review of that STR does not evidence any precipitating head injury such as being hit by a duffel bag, and the examining clinician noted that the appellant’s neck was “O.K.” The only related symptom was an inflamed throat. This is the same evidence that the RO considered at the time of the January 1984 rating decision denial. Considered together, the evidence of record added to the claims file since the January 1984 rating decision does not raise the possibility that the appellant sustained a lumbar spine disability during service. Absent competent evidence raising the possibility that the appellant sustained a lumbar spine injury during service that is related to any current lumbar spine disorder, the Board finds that new and material evidence concerning the appellant’s claim for service connection for lumbar spine disability have not been received. As such, the petition to reopen is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.