Citation Nr: 23020192 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 19-09 538 DATE: March 31, 2023 ORDER The request to reopen a previously denied claim for service connection for a lumbar spine disability is denied. REMANDED Service connection for a bilateral hip disability is remanded. FINDING OF FACT By a final September 2014 rating decision, the Veteran's claim for service connection for a lumbar spine disability was denied. Evidence received since then does not raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW The criteria for reopening a previously denied claim for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 decision. New and Material Evidence To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran was denied service connection for a lumbar spine disability in a September 2014 rating decision. The basis of that denial was that the evidence showed a current disability but did not establish a relevant in-service incurrence of a lumbar spine disability or a nexus between current lumbar spine disability and service. He did not appeal that decision, and therefore it became final. Since the September 2014 rating decision, additional evidence has been received, including private treatment records showing ongoing diagnoses and treatment for a lumbar spine disability. This evidence is new because it was not part of the record at the time of the prior denial. However, it is not material, as it does not relate the current lumbar spine disability to service or otherwise establish an event, injury, or disease in service relevant to the current lumbar spine disability. Indeed, the evidence continues to show that the lumbar spine disability manifested after a motor vehicle accident in 1999. Therefore, the claim to reopen service connection for a lumbar spine disability is denied. REASONS FOR REMAND Bilateral hip disability The Board finds remand is necessary to ensure proper development of the claim. Specifically, the record of evidence shows a diagnosis of sacroiliac joint strain and/or sprain, but there is no VA examination or opinion of record. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. (Continued on the next page) ? 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any hip disability. The examiner must review the claims file and should note that review in the report. A complete history of onset and symptoms should be elicited from the Veteran. Any tests and studies deemed necessary should be conducted and all findings should be reported in detail. The examiner must opine as to whether it is at least as likely not (likelihood is at least approximately balanced or nearly equal, if not higher) that any hip disability had its onset in service or is otherwise related to service. The rationale for any opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.