Citation Nr: 21023297 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-17 311 DATE: April 20, 2021 ORDER The appeal seeking to reopen a claim of service connection for a low back disability is denied. FINDINGS OF FACT 1. A final September 2013 rating decision denied service connection for a low back disability, finding in essence that such disability was not shown to be etiologically related to the Veteran’s service. 2. Evidence received since the September 2013 rating decision does not show or suggest that the Veteran’s low back disability may be related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim seeking service connection for a low back disability may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 1954 to August 1974. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 Department of Veterans Affairs (VA) rating decision, which declined to reopen the claim of service connection for a low back disability. In January 2021, a virtual Board hearing was held before the undersigned; a transcript is in the record. The Veteran was granted a 90-day abeyance period for the submission of additional evidence. That period lapsed, and no evidence was received. The appeal to reopen a claim of service connection for a low back disability is denied. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed September 2013 rating decision denied the Veteran service connection for a low back disability, finding in essence that such disability was unrelated to service. The Veteran also did not submit new and material evidence within the following year, and the decision is final. 38 U.S.C. § 7105. Pertinent evidence of record at the time of the September 2013 rating decision included the Veteran’s service treatment records (STRs), a July 2013 VA examination report, a September 2013 VA medical opinion, and VA treatment records. The Veteran contends that his low back disability is related to service (to include the automobile accident in March 1958). On May 1974 retirement examination, a report of medical history noted the Veteran’s automobile accident in March 1958 (when he sustained a fracture of “acetabulum left, pubis, inferior and superior rami, left, ulnar styloid right, and clavicle left”). In a July 2013 Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ), the Veteran reported that while he was on leave in 1958, he was in an automobile accident and was thrown/ejected from the car and hit black ice, sustaining several fractures (nose, left acetabulum, and pubis area). He was in a coma for 3 days, and his acetabulum had since healed. He was upset that his back was not examined on the July 2013 examination. In a September 2013 Medical Opinion DBQ, the examiner stated that there was no current evidence of continued or chronic deformity in the left acetabulum and pubis area. Since the changes found on MRI were consistent with degenerative changes, biology of aging, and the Veteran’s postservice occupational history (power plant inspector), the examiner opined that the low back disability was not likely as caused by the motor vehicle accident in March 1958. The only pertinent evidence received since the September 2013 rating decision includes copies of STRs, VA treatment records (February 2017 and January 2018), and the Veteran’s testimony. The additional treatment records do not include an opinion regarding the etiology of the Veteran’s low back disability. At the January 2021 Board hearing, the Veteran (with his wife’s assistance) testified that he was in an automobile accident in service and had an altered gait from a (service-connected) hip fracture (which impacted on a back disability). No evidence was received during the 90-day abeyance period. Because service connection for the low back disability was previously denied based on a finding that such disability was unrelated to service, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that the low back disability was incurred in, aggravated by, or is otherwise etiologically related to, his service. As the originals of the copies of STRs submitted were already in the record at the time of the September 2013 rating decision (and that the Veteran was in an automobile accident in service is not in dispute), that evidence is cumulative, and not new, evidence. While the February 2017, January 2018 VA treatment records, and the Veteran’s testimony (describing how his altered gait (from his service-connected hip fracture) has affected his back disability) added to the record since the September 2013 rating decision are new evidence in the sense that they were not considered in that decision, they are not material evidence. Because he is a layperson, the Veteran’s testimony attributing his back disability to an altered gait due to a service-connected disability is not competent (and probative) evidence in the matter. The etiology of his back disability (to include whether it was caused or aggravated by a service- connected disability) is a medical question. The Veteran does not profess to have medical expertise, and does not cite to supporting medical opinion. The treatment records do not show or suggest that the Veteran’s low back disability may be related to his service or to a service-connected disability, and nexus of current disability to service or to a service-connected disability is the one critical element that remains necessary to substantiate the claim. Therefore, they do not relate to an unestablished fact necessary to substantiate the claim; do not raise a reasonable possibility of substantiating the claim; and are not material. No evidence received since the September 2013 rating decision is new evidence that positively bears on the unestablished facts necessary to substantiate the claim of service connection for the low back disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for the low back disability may not be reopened. The appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu, 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.