Citation Nr: 18160662
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-00 663
DATE:	December 27, 2018
ORDER
The application to reopen the previously denied claim for service connection for a back condition is denied.
FINDING OF FACT
1. In a February 2013 decision, the RO denied the Veteran’s service-connection claim for back condition.  The Veteran did not appeal this decision and it became final.
2. Evidence received since the February 2013 decision does not bear directly and substantially upon the specific matter under consideration, is cumulative or redundant, and in connection with evidence previously assembled fails to raise a reasonable possibility of substantiating the claim of entitlement to service connection for back condition.
CONCLUSION OF LAW
The criteria for new and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for back condition has not been submitted since the February 2013 decision; the claim is not reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the United States Marine Corps from April 1979 until his honorable discharge in April 1982.
The Board notes that the Veteran requested a hearing at a local VA office in December 2016 on the Veteran’s VA Form 9.  The Board also notes that the Board received a request to withdraw his hearing request in June 2017.
New and Material Evidence 
In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108. 
Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 
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.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
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, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18.
In a February 2013 rating decision, the RO denied service connection because the available evidence at the time did not show that the condition was related to the Veteran’s service.  The Veteran did not appeal that decision and did not submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
In an April 2015 rating decision, the RO denied reopening the claim of service connection for the Veteran’s back condition because there was no new and material evidence.  The Veteran has appealed this decision to the Board.
Evidence of record at the time of the February 2013 RO rating decision includes the Veteran’s application for compensation and pension, the Veteran’s DD-214 showing honorable service from April 1979 through April 1982, service treatment records from April 1979 through April 1982, VCAA letter from VA advising of claims process and requesting additional evidence to support the Veteran’s claim, VA treatment records from June 2004 through January 2013, and a January 2013 VA examination.
Evidence submitted after the February 2013 RO decision includes the February 2015 application for compensation and pension; duplicative service treatment records from April 1979 through April 1982; private treatment records since the February 2013 RO decision; the April 2015 notice of disagreement; an October 2015 statement in support of claim; a  November 2015 application for disability compensation and benefits; a January 2016 application for pension; a January 2016 application for disability compensation and benefits; military personnel records; VA treatment records from March 2012 to November 2013; a November 2016 statement in support of claim concerning a 1989 gunshot wound to the Veteran’s back; a December 2016 statement in support of claim; a December 2016 statement of the case; the December 2016 VA Form 9; the December 2016 application for disability compensation and benefits; the March 2017 application for disability compensation and benefits; and, the March 2018 statement of accredited representative.
The Board finds that new and material evidence has not been presented.  The evidence submitted since the February 2013 rating decision does not show that the Veteran has a back disability that may be etiologically related to his military service.  The Board further notes that the service treatment records submitted are also not new because it they were previously considered in the February 2013 decision.  Additionally, the evidence is redundant as that evidence was of record at the time of the prior denial.  See 38 C.F.R. § 3.156(a).  
The Board has considered that the Veteran provided a new theory of entitlement in his December 2016 statement in support of the claim.  Specifically, he asserted that his back condition is secondary to his sciatic nerve and ankle injuries.  A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the sole basis for reopening the claim in the absence of new and material evidence.  Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008).  However, while a new theory of entitlement for the same disease or injury cannot serve as the basis of a new claim, if the evidence supporting the new theory constitutes new and material evidence, the claim may be reopened.  Id.
Hee, however, the Board notes that the Veteran’s sciatic nerve, ankle, and unspecified foot condition claims were all denied in the July 2017 RO decision and that this decision became final in July 2018.  This decision was reaffirmed in a September 2017 RO decision, noting that there was no additional evidence provided for the claims, and that decision also became final in September 2018.  
Therefore, the new theories of entitlement are not material because the claimed secondary service connection does not have any underlying disabilities which are service connected and were fully adjudicated in 2017.  Moreover, when considering the new evidence in conjunction with the evidence already of record, it does not raise a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  
Accordingly, for all of the above reasons, the Veteran’s claim of entitlement to service connection for a back condition is not reopened.

 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. DEEMER, ASSOCIATE COUNSEL 

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