Citation Nr: 0114027 Decision Date: 05/18/01 Archive Date: 05/23/01 DOCKET NO. 00-18 677 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from January 1965 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1999 RO decision which denied the veteran's application to reopen a claim of service connection for a low back disability. FINDINGS OF FACT 1. In an unappealed decision, dated in December 1967, the RO denied service connection for a low back disability. 2. The evidence received since the RO's December 1967 decision bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the claim of service connection for a low back disability. CONCLUSIONS OF LAW 1. The RO's December 1967 decision, which denied a claim of service connection for a low back disability, is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. New and material evidence has been received since the RO's December 1967 decision denying the claim of service connection for a low back disability, and the claim for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's spine was normal at the time of his July 1963 Naval Reserve enlistment examination. The veteran served on active duty in the Navy from January 1965 to January 1967. In January 1965, the veteran was examined for Navy enlistment purposes, at which time his spine was within normal limits. A consultation request, dated in July 1966, reflects that the veteran presented for treatment with complaints that he had a chronic lumbar ache for over 4 months. He related he had been placed on light duty, and was taking Robaxin and Darvon with negligible results. It was also noted that he had undergone a thorough urological work-up for persistent pyuria and hematuria, and no pathology was found. He reported a history of routine heavy lifting, and it was requested that he be given an evaluation for a questionable orthopedic problem. During the consultation examination, the veteran reported that his mid back pain did not radiate and was localized to the paraspinal muscles at T12-L1. He said that his pain was aggravated by standing or sitting for long periods, and felt stiff most of the time as if someone was pushing on it. On physical examination, it was noted that he had mild deep muscle tenderness at T12-L1, bilaterally, but more so on the right side. Muscle spasms were present. His remaining examination was entirely within normal limits. The impression was that the veteran's back problems may represent a mild chronic muscle sprain. It was also opined that it was more likely than not that he did not have any orthopedic pathology. On separation examination in January 1967, the veteran's spine was clinically normal. In a statement, Eugene D. Angelo, M.D., indicated that he had treated the veteran in April 1967, for complaints of back pain. X-ray studies performed at Bradley Hospital in April 1967 were noted as showing slight narrowing of the lumbosacral disc interspaces, posteriorly. The veteran was diagnosed as having a lumbosacral spine strain. In May 1967, the veteran filed an application for service connection for a back disability. A May 1967 medical record reflects that the veteran presented for VA treatment with X-ray studies of his lumbosacral spine, which had been taken at another facility. It was noted that the X-ray studies did not reflect arthritis, and were essentially negative. A physical examination of the veteran's spine revealed normal range of motion (with no pain), normal reflexes, and no muscle spasms. Medication was prescribed. By a December 1967 RO decision, service connection for a low back disability was denied. The RO noted that a back disability had not been noted at the time of the veteran's discharge examination. The veteran was properly informed of the RO's decision in a January 1968 letter, which was sent to his last address of record. The veteran did not file an appeal. Evidence received since the RO's December 1967 decision is summarized below in chronological order. Service medical records were received by the RO which show that in March 1966, the veteran presented for treatment, indicating he felt soreness at the base of his spine. Two days earlier, he reported, he had been doing sit-ups on deck and had suffered a surface abrasion. In April 1966, the veteran again complained of a back ache. The diagnosis was a minor muscular back strain, and medication was prescribed. Service medical records, dated in May 1966, show that the veteran complained of persistent back or flank pain. He related he had experienced pain just above the iliac crest for 8 months. It was noted that his original genitourinary symptoms were investigated but all studies were negative except for a urinalysis which showed white and red blood cells. Recent urinalyses were noted as negative and no genitourinary symptomatology was detected The diagnosis was a questionable muscular strain of the low back (chronic). For several weeks (in May and June 1966), the veteran continued to complain of mild low back aching, and was diagnosed as having a chronic low back strain. In a September 1988 application to reopen his claim of service connection for a low back disability, the veteran indicated he had hurt his back in March 1966 while conducting "underway replenishments via highline detail." Specifically, he related, he had fallen down some stairs and that bottles or cylinders of gas had landed on top of him. He said he had sought treatment at sick bay in April and August. After service, in February 1967, he said he had seen Dr. Brown, in Southington, Connecticut for spinal X-rays and was told he had acute inflammation of the lower disc area and a tipped pelvis. He also related he had gone to a VA hospital where he decided not to proceed with a drastic operation, which had been recommended. In 1982, he said, he underwent disc surgery. In an October 1988 RO letter, the veteran was instructed to submit new evidence in order to reopen his claim; and he did not respond. In March 1990, the RO received the veteran's application to reopen his claim of service connection for a low back disability. In the application, he indicated he had injured himself in April and August 1966. In a May 1990 RO letter, the veteran was instructed to submit new evidence in order to reopen his claim; and he did not respond. In August 1995, the veteran was hospitalized at a VA facility. It was reported that he had a long history of low back pain, which radiated down his right leg. It was noted he had undergone a L4-L5 diskectomy 12 years earlier, but that his right leg pain continued to persist. During the course of the hospitalization, he underwent a L3, L4, L5 total laminectomy, foraminotomies, and a L5-S1 diskectomy. In April 1999, the RO received the veteran's application to reopen his claim of service connection for a low back disability. In February 2001, the veteran submitted a private treatment record, signed by Mukesh D. Bhatt, M.D. The veteran waived RO jurisdiction over this evidence. The private treatment record appears to be dated in February 2001 and shows that the veteran complained of low back pain. The assessment was acute lower back pain with radiation to L4-L5-S1, and status- post lumbar surgery, among other things. In February 2001, the veteran presented testimony at a Board video-conference hearing. He testified that he did not have back problems prior to his entry into military service. During active duty, while aboard a destroyer, he said, he injured his back when the oxygen bottle he was carrying fell on him. He also related that he had back problems as a result of doing sit-ups. He indicated he had received medical care for his back problems during active duty. About three weeks to a month after his service discharge, he related, he saw a private doctor for back treatment, and was told he had a lumbosacral strain. He also indicated that he sought treatment at VA and was told that he had a back problem which could be treated with immediate surgery. He said he declined this treatment option. He said he had filed a claim of service connection for his back disability shortly after his discharge, but the claim was denied. He said he was neither informed of the outcome of his claim nor informed of his appellate rights by VA. For the last 20 years, he said, he had received low back treatment from a chiropractor. As for VA treatment, he indicated he started going to the Palm Beach facility beginning in 1994, but was not currently receiving treatment. Over the years, he said, he had undergone back surgery, but that such had not corrected his problems. Currently, he related that he was receiving treatment from a private physician who reportedly told him that there was an etiological relationship between his current back disability and his inservice back injury. Following the conclusion of the hearing, the record was held open for 60 day to enable the veteran to submit additional evidence in support of his claim. In March 2001, the veteran submitted additional evidence, namely a private treatment record and a statement from Mrs. [redacted], who is the wife of a chiropractor. The veteran waived RO jurisdiction over this evidence, which is summarized below. In a March 2001 private treatment record, signed by Mukesh D. Bhatt, M.D., it was reported that the veteran had been having chronic pain since sustaining injuries during his Navy service in 1965. Following an examination, the impressions included acute lower back pain with radiation to the right side of L4-L5 and S1. Dr. Bhatt opined that the veteran's current back condition was related to his original injury of 1965. A March 2001 statement of Mrs. [redacted] indicates that she had periodically served as the receptionist for her husband, Dr. Burgess, who was a chiropractor. She noted that the veteran was under Dr. Burgess' care from 1972 to 1980. She further noted that related medical records were destroyed. II. Legal Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In December 1967, the Board denied the veteran's claim of service connection for a low back disability. It is noted that the RO sent the veteran a letter in January 1968 informing him of the outcome of the December 1967 decision and apprising him of his appellate rights. Thereafter, he did not respond. During his February 2001 Board hearing, the veteran seemed to suggest that he had not received notice of the RO's December 1967 decision, or information about his appellate rights. There is no evidence in the record to overcome the presumption in favor of administrative regularity with regard to receipt of the denial notice in January 1968. See Mindenhall v. Brown, 7 Vet. App. 271 (1994); Hyson v. Brown, 5 Vet. App. 262 (1993). It is pointed that the RO sent the denial notice to the veteran's last address of record. Accordingly, the Board holds that the December 1967 RO decision is final and went unappealed. The veteran's claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. When the RO denied the claim of service connection for a low back disability in December 1967, it considered the veteran's service medical records, which show that on enlistment examination in January 1965, the veteran's spine was normal. In July 1966, the veteran presented for treatment, complaining of a low back problem of four months duration. Following an examination, the impression was a mild chronic muscle sprain. Additionally, the examiner indicated that it was more likely than not that the veteran did not have any orthopedic pathology. On separation examination, in January 1967, the veteran's spine was clinically normal. The RO also considered post-service medical evidence, including the statement of Eugene D. Angelo. Dr. Angelo indicated that he had treated the veteran for back complaints in April 1967, and had diagnosed the veteran as having a lumbosacral spine strain. X-ray studies were noted as showing slight narrowing of the lumbosacral disc interspaces. Finally, the RO reviewed a May 1967 VA medical record. This medical record reflects that the veteran's spine was normal on physical examination. Additionally, it is noted that the veteran apparently brought his X-rays to the VA for interpretation, following his examination by Dr. Angelo. The VA examiner opined that the X-ray studies did not reflect arthritis and were essentially negative. The VA examiner's interpretation of the X-ray studies clearly conflicts with Dr. Angelo's interpretation which is noted above. Evidence received since the RO's December 1967 decision consists of numerous service medical records dated from March to June 1966, which show that the veteran received treatment for his low back on several occasions and was diagnosed as having a low back strain during active duty. These service medical records are neither cumulative nor redundant of evidence previously considered as they tend to show that the veteran repeatedly sought treatment for back complaints instead of just showing that he presented on one occasion. Moreover, inasmuch as the service medical records speak directly to whether he incurred a back injury in service, the Board finds that the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. In sum, it is concluded that the service medical records, dated from March to June 1966, constitute new and material evidence. 38 C.F.R. § 3.156. Finally, additional evidence includes VA and private medical records dated from the 1990s to 2001. These records generally reflect that the veteran has received current treatment for a low back disability (including surgery). Most notably, a March 2001 treatment record, prepared by Dr. Mukesh D. Bhatt, reflects the opinion that the veteran's current low back problems are related to service. Since the private and VA medical records as well as Dr. Bhatt's statement speak directly to the presence of a current disability and the likelihood of a nexus between the current disability and service, the Board finds that the evidence is new and material. The evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Id. In sum, it appears that the prior denial was, in part, based on a lack of competent evidence of a current disability. The evidence added to the record cures one of the evidentiary defects that had existed. The evidence is new and material. ORDER New and material evidence having been submitted to reopen the claim of service connection for a low back disability, the claim is reopened. REMAND The veteran's claim was reopened on the basis that new and material evidence had been submitted. The next step is to address the question of whether service connection is warranted. It is noted that it is unclear as to whether the etiological opinion of Dr. Bhatt (referenced above, which linked the veteran's current back condition to military service) took into consideration the entire evidentiary record. In view of the unresolved medical questions in this claim, it is concluded that a VA examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991). (It is noted that the veteran has not yet been afforded a VA compensation examination to determine the etiology of his low back disability.) Furthermore, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Accordingly, the case is again REMANDED to the RO for the following action: 1. The RO should contact the veteran and ask him to furnish the names and addresses of all VA and non-VA medical providers who have treated him for back problems, including but not limited to Mukesh D. Bhatt, M.D., Dr. Brown, and the VA facilities in Florida. The RO should then contact the identified sources and obtain copies of the records, following the procedures of 38 C.F.R. § 3.159. 2. The veteran should be scheduled for a VA orthopedic examination to evaluate the nature and etiology of any back disability. The claims folder and a copy of the Board's remand must be made available to the examiner for review prior to the examination. All findings should be reported in detail. The examiner should address the following: State a medical opinion as to whether it is at least as likely as not that any current low back disability is the result of a disease or injury he had in service. 3. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 4. In connection with the above-cited development, the RO is advised to ensure compliance with examination reporting requirements. Pursuant to 38 C.F.R. § 3.655, when the claimant without good cause fails to report for examination in connection with a claim for an increased evaluation, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. [Reference is made to M21- 1, Part IV, paragraph 28.09(b)(3).] The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. This serves as notification of the regulation. 5. The RO should undertake all developments required under the Veterans Claims Assistance Act of 2000. 6. The RO should readjudicate the claim of service connection for a low back disability. The entire claims file must be reviewed prior to any adjudicatory action. If the claim is denied, the veteran and his representative should be issued a SSOC (which addresses all of the additional evidence, including all medical evidence and statements added to claims folder since the last statement of the case), and given an opportunity to respond, before the case is returned to the Board. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. H. N. SCHWARTZ Member, Board of Veterans' Appeals