Citation Nr: 0402278 Decision Date: 01/22/04 Archive Date: 02/05/04 DOCKET NO. 03-03 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether there is new and material evidence to reopen a claim for service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from April 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 2002 which determined that new and material evidence had not been submitted to reopen the claim for service connection for residuals of a low back injury with degenerative joint disease and degenerative disc disease. The veteran's claims for service connection for residuals of a back injury had previously been denied by rating decisions of August 1995, March 1996, and August 2002, none of which were appealed. There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2000)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (the Court) 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 App. 477 (1999), withdrawn sub nom.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) (holding that VA cannot assist in the development of a claim that is not well grounded). Final regulations to effectuate the VCAA were published on August 29, 2001 with the same effective date of the VCAA, November 9, 2000. Except for the amendment to 38 CFR § 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii), effective August 29, 2001, governing reopening of previously and finally denied claims, the provisions of this final rule apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. As the instant appeal addresses a reopened claim, the revised regulations pertaining to reopened claims are applicable to this appeal. The record shows that the claimant and his representative were notified of the provisions of the VCAA by RO letters of May 13, 2002; September 17, 2002; and October 17, 2002, each of which informed them of VA's duty to notify them of the information and evidence necessary to substantiate the claim and to assist them in obtaining all such evidence. Those letters also informed the claimant and his representative which part of that evidence would be obtained by the RO and which part of that evidence would be obtained by the claimant, pursuant to Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (requiring VA to notify the claimant of what evidence he or she was required to provide and what evidence the VA would attempt to obtain). In any case, the only matter decided in this decision is resolved entirely in the veteran's favor. FINDINGS OF FACT 1. The veteran served on active duty in the United States Navy from April 1952 to March 1956, during which service he sustained multiple contusions and abrasions in a motor vehicle accident on September 27, 1952, which was ruled in the line of duty. 2. The veteran's claims for service connection for residuals of a back injury were previously denied by rating decisions of August 1995, March 1996, and August 2002, none of which were appealed. 3. On September 12, 2002, the claimant undertook to reopen his claim for service connection for service connection for residuals of a back injury with degenerative joint disease and degenerative disc disease by submitting additional medical evidence and offering sworn testimony at a hearing held in June 2003 before the undersigned Veterans Law Judge of the Board of Veterans' Appeals. 4. The veteran's sworn testimony at his hearing held in June 2003 before the undersigned Veterans Law Judge of the Board of Veterans' Appeals include factual assertions regarding postservice symptomatology and treatment for the disabilities at issue not previously advanced and which must be presumed credible. 5. The additional evidence submitted includes evidence not previously submitted to agency decision-makers that 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 decide fairly the merits of the claim. CONCLUSION OF LAW New and material evidence having been submitted, the claim for service connection for residuals of a back disability is reopened. 38 U.S.C.A. § 5108, 5103, 5103A (West 2000); 38 C.F.R. § 3.156(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Evidence The veteran served on active duty in the United States Navy from April 1952 to March 1956, during which service he sustained multiple contusions and abrasions in a motor vehicle accident on September 27, 1952. In March 1957, the veteran sought a dental rating, and his dental records and service entrance examination were obtained. The claimant's service entrance examination, conducted on April 25, 1952, showed that his spine and his neurological and musculoskeletal systems were normal. The veteran's original application for VA disability compensation benefits (VA Form 21-526), received at the RO on May 2, 1995, sought service connection for a back injury sustained in a 1952 auto accident and for kidney stones on three occasions while in service. With respect to an inquiry as to any physicians or medical facilities treating him for the claimed conditions since service separation, the claimant responded "none." The veteran's complete medical records, received in August 4, 1995, showed that his service entrance examination, conducted on April 25, 1952, disclosed that his spine and his neurological and musculoskeletal systems were normal. The veteran's service medical records show that he sustained generalized contusions in a motor vehicle accident on September 27, 1952; that he was initially treated by Dr. Paul Atkins, Jr., at Hillcrest Memorial Hospital, Tulsa, Oklahoma; that he was given extensive X-rays at that facility and his contusions and abrasions were treated. In October 1952, the veteran's injuries sustained in the accident were described as multiple concussions and abrasions. A determination by the appropriate service department authorities in March 1953 ruled that the claimant's injuries sustained in that motor vehicle accident were incurred in the Line of Duty and were not the result of his own misconduct. The service medical records show that in December 1952, the veteran was admitted to the Dispensary, United States Naval Aviation Training Center, Point Mugu, California, with complaints of severe pain in the left flank, radiating down his left groin and into the left testicle, with no prior history of hematoma or pyuremia, and no past kidney history. A review of systems was normal except for moderate tenderness in the left costavertebral angle and red blood cells in the urine, while kidney, ureter, and bladder (KUB) film was inconclusive. It was believed that the problem was calculus, kidney, left, and the veteran was transferred that date to the United States Naval Hospital, Corona [now USNH, San Diego], for further treatment and disposition. Service medical records from the United States Naval Hospital, Corona, dated in December 1952, show that the veteran was admitted with a diagnosis of calculus, kidney, left; that examination revealed marked rigidity over the left kidney and ureter with recurring renal colics; that 24 hours after admission, the veteran passed a small urinary calculus; and that a follow-up IVP and KUB showed normal function of both kidneys, with no evidence of any remaining calculi, and that he was returned to duty at the U. S. Naval Aviation Training Center, Point Mugu. In March 1954, the veteran was examined at that duty station and found physically qualified for transfer. In August 1954, while aboard USS GENERAL WILLIAM A. MANN (TAP-114), the claimant was seen for complaints of back pain, noting previous back pain in 1952 when he had ureteral colic due to a kidney stone which was passed at that time. Examination disclosed that the veteran was in moderate distress, with back pain in the lumbar area, bilateral CVA tenderness to percussion, worse on the left, an elevated red blood cell count, and burning on urination. The following day, he was asymptomatic, and his back pain had diminished. He was discharged to duty after four days with a diagnosis of nephrolithiasis, but readmitted one week later with complaints of chills and fever, and back and abdominal cramps, with bilateral costavertebral pain which wakened him. The following day, his chills and fever had subsided and he was feeling relatively well except for occasional lumbar pains. The veteran remained in the sick bay until September 10, 1954, when he was transferred to the U. S. Naval Hospital, Bremerton, Washington, for evaluation and treatment of a condition diagnosed as nephrolithiasis. Service medical records from that facility show that he was admitted to that facility with a diagnosis of nephrolithiasis, and complaints of intermittent pain in the back and flanks, bilaterally, worse on the left, with occasional frequency and burning on urination. The attending physician cited the claimant's history of renal calculi treated on numerous occasions symptomatically since 1952, with the passing of stones on numerous occasions corroborated by the medical record. His medical history included treatment for generalized contusions at the USNTC in September 1952, and admission to the USNH, Corona, in December 1952, with a diagnosis of calculus in the kidney. Physical examination was essentially normal except for bilateral tenderness in both flanks and in the costavertebral, more marked in the left side, while the spine was noticeably flat and there was some weakness in the upper limbs on lifting weights. Urinalysis was essentially negative chemically and microscopically on September 10, September 14, and September 29, 1954, while on September 14, a urine culture was negative. On September 10, a KUB was negative for renal calculi, while in September17, a IV urogram was negative, and in September 23, urine obtained on a retrograde pyelogram was essentially negative on routine examination and culture. It was noted that the claimant's symptoms persisted up until September 21, 1954, when they diminished somewhat. At this time he had residual pain in the back, more or less as noted on his admission, and he was placed on routine therapy for renal calculus, but none were observed to pass and it was presumed, in the absence of any positive findings on cystoscopic retrograde pyelogram and IVP, that stones may have passed earlier. The attending service physician stated that there was no evidence of any infection in the urinary tract; that on September 26, 1954, because of residual soreness in the left flank, the veteran was sent to physiotherapy for exercise to strengthen and mobilize the back; that he had continued daily physiotherapy to his spine and extro girdle, with loss of much of his pain; that an orthopedic consultation on October 6, 1954, showed that the claimant was orthopedically qualified for full duty; that there was no evidence of musculoskeletal derangement of his back; that many of the veteran's symptoms were due to a strong functional overlay; and that in view of his many numerous admissions and emotional outlook, the veteran should have an orthopedic or urological consultation prior to any admission in the future. The claimant was discharged to full duty on October 13, 1954, with a diagnosis of calculus in kidney. The service medical are silent for any further complaint, treatment, findings or diagnosis of low back pain during the veteran's remaining period of active service. His service separation examination, conducted in March 1956, showed that the veteran's spine and his neurological and musculoskeletal systems were normal. A rating decision of August 9, 1995, granted service connection for kidney stones, evaluated as noncompensably disabling, and denied service connection for a back injury. The claimant and his representative were notified of those actions and of his right to appeal by RO letter of August 18, 1995, with an enclosed copy of the rating decision. The veteran failed to initiate an appeal. In February 1996, during the appeal period, the claimant submitted a Statement in Suppport of Claim (VA Form 21-4138) in which he sought an increased (compensable) rating for his service-connected kidney stones, asserting that such had worsened and that a VA C&P examination was warranted. He further asked that he be scheduled for a C&P examination for a back injury he sustained in service, and enclosed VA outpatient treatment records from the VAMC, Tulsa, showing treatment for his back. . VA outpatient treatment records from the VAMC, Tulsa, dated from August to December 1995, show that the veteran was seen in August 1995 with complaints of low back pain since the past evening. Laboratory reports and urinalysis were negative, while examination revealed lumbar pain, bilaterally, with positive muscle spasm in the lumbar spine. The assessment was lumbar muscle pain. In September 1995, the veteran was seen for complaints of left flank pain, with no urinary problems, and urinalysis was negative for hematuria. Examination revealed mild lumbar muscle spasm, and he was referred for X-ray. Multiple X-rays of the lumbosacral spine in September 1995 showed a disc phenomenon and narrowing of the lumbosacral disc space indicating some degeneration of the disc at that level, while some small spurs of a spondylotic nature were present anteriorly on the vertebral bodies, and osteopenia was evident throughout. Facet degenerative changes were evident at the 4th and 5th levels. The radiographic impression was demineralized bony structures; disc narrowing at the L5-S1 level; and facet arthritis at the 4th and 5th levels. In December 1995, the claimant indicated that his renal stones were stable; and that his back problem had resolved. His X-rays were reviewed and were noted to show degenerative joint disease and disc space narrowing at L5-S1, and facet arthritis at L4 and L5 was seen. A report of VA examination for pyelitis and nephrolithiasis, conducted in March 1996, cited the claimant's history of kidney stones in 1952, without surgery, and that he currently complains of occasional renal pain, with attacks of colic three times per year. Examination revealed no objective clinical findings, and his external genitalia and prostate were normal. There was no evidence of any current calculi or infection, no catheter drainage was required, and no other kidney problem was apparent. The diagnosis was nephrolithiasis, well-controlled on medical management, i.e., fluids. A rating decision of March 1996 increased the evaluation for the claimant's service-connected kidney stones from a noncompensable evaluation to 10 percent, effective May 2, 1995, the date of receipt of his original claim, and denied service connection for a back injury. The claimant and his representative were notified of those actions and of his right to appeal by RO letter of April 5, 1996, with an enclosed copy of the rating decision. The veteran failed to initiate an appeal, and those decisions became final after one year. In June 1997, the claimant submitted a Statement in Suppport of Claim (VA Form 21-4138) in which he asserted that the only evidence used in denying his claim for service connection for a back injury in March 1996 was the VA examination in March 1996 and the VA outpatient treatment records dated from August to December 1995. He asserted that he injured his back after boot camp when he was being transported back to Oklahoma for a 10-day furlough prior to going to his ship assignment; that during transit, he was injured in a car provided by Greyhound Bus Lines; that upon his return to boot camp, he was treated for a back condition; that he was stationed at San Diego. He asked that the RO try to obtain his service medical records to support his back claim. By RO letter of June 11, 1997, the veteran and his representative were notified that his claim for service connection for a back condition had previously been denied, citing the rating decisions of August 1995 and March 1996; that in the rating action of August 1995, his service medical records were considered; that in the rating decision of March 1996, the outpatient treatment records from the VAMC, Tulsa, between August and December 1995 were considered, as well as the VA examination in March 1996, but his claim was denied because the evidence failed to show continuity of symptomatology since his discharge from service. That letter to veteran and his representative defined new and material evidence; informed him that submission of new and material evidence was required to reopen his claim; and informed him that no action could be taken until and unless he submitted such new and material evidence. The veteran and his representative were notified of his right to appeal that determination. That decision was not appealed, and became final after one year. In April 2002, the claimant submitted a Statement in Suppport of Claim (VA Form 21-4138) in which he sought a rating in excess of 10 percent for his service-connected kidney stones, asserting that such disability was causing him a serious employment handicap because of his periods of severe pain, requiring that he take large doses of pain medication and lie still to obtain relief. He further asked that he be afforded a CT scan for his severe back pain injured in service [sic]. The claimant and his representative were notified of the provisions of the VCAA pertaining to service connection and increased rating claims by RO letter of May 13, 2002, and that letter enclosed a waiver of the 30-day development period. The claimant executed and returned the waiver of the 30-day development period to the RO on May 24, 2002. A report of VA fee-basis genitourinary examination, conducted in June 2002, cited the claimant's statement that he has a history of kidney stones and had passed his last kidney stone about one year ago; that his injury was in 1952 and that since then, he has intermittently passed a stone; and that he used to wake up about 10-12 times a night, but has improved to 3-4 times a night with about two hours between [attacks]. The claimant denied any pain with urination, any bladder incontinence, or any difficulty in initiating urination. He further denied any history of surgery to his urinary tract, while noting that a catheter was input on one occasion, a stone removed from his bladder, and a biopsy accomplished. He denied impotence or trauma to his testicles, and stated that he had not been on dialysis and had been asymptomatic for the past year. The genitourinary examination disclosed no abnormalities, while a metabolic panel, urinalysis and complete blood count were unremarkable. The examiner stated that the established diagnosis was kidney stones, resolved for the past one year, with a history of kidney stones in the past, and noted that clinically the claimant may have underlying kidney stones and that such could further be determined by X-ray KUB or IVP. A rating decision of July 2002 confirmed and continued the 10 percent rating for the claimant's service-connected kidney stones. The claimant and his representative were notified of that action and of his right to appeal by RO letter of July 8, 2002, with an enclosed copy of the rating decision. The veteran failed to initiate an appeal and that decision became final after one year. Later in June 2002, the claimant submitted a Statement in Suppport of Claim (VA Form 21-4138) with which he included VA outpatient treatment records from the VAMC, Tulsa, dated in May 2002, showing that a CT scan of the cervical spine revealed apparent narrowing of the C5-C-6 and C-6 and C-7 disc spaces with degeneration of those discs and facet arthritis changes quite prominent at C5-C-6 and C-6 and C-7 levels, while neural foramina narrowing was quite prominent at the C5-C6 level on the right side and at the C6-C7 level on the left side, and mild narrowing of the left C5-C6 neural foramen was also seen. A CT scan of the lumbar spine performed that same day showed degenerative changes occurring at the L3-L4, L4-L5, and L5-S1 levels, with some mild stenosis occurring at the L4-L5 level, as well as mild hypertrophy of the ligamentum flavum with concentric bulging at the L4-L5 level causing some flattening of the anterior convexity of the thecal sac, and concentric bulging occurring at L5-S1 level. The examining radiologist identified the most striking features of the examination as the osteoarthritic changes occurring at the facets at the L3-L4, L4-L5, and L5-S1 levels. A rating decision of August 2002 determined that new and material evidence had not been submitted to reopen the claim for service connection for residuals of a back injury. The claimant and his representative were notified of that action and of his right to appeal by RO letter of August 7, 2002, with an enclosed copy of the rating decision. In September 2002, within the appeal period, the claimant submitted a Statement in Suppport of Claim (VA Form 21-4138) in which he asserted that his back was injured in service; that he now has arthritis in his back which is severely disabling and degenerative; and asked that his claim for service connection for a back injury be reopened. He asserted that his service medical records do not show trips to doctors for pain medication, and that he has had to rely on over-the-counter medications to get around since service. In an attachment, the claimant related that he enlisted in April 1952; that he went to boot camp [recruit training] at the U.S.N.T.C., San Diego; that he was in a motor vehicle accident in September 1952; that he was sent back to the USNH, San Diego; that later in September 1952, he was transferred to the Naval Base at Point Mugu; that in December 1952, he sustained a back injury when the wind blew a door shut; that he was hospitalized and after 24 hours, he was passing kidney stones; that he was subsequently transferred from the Point Mugu Base Hospital to the USS GENERAL MITCHELL (TAP-114); and that in September 1954, he was transferred to the U.S. Naval Hospital at Bremerton, Washington; and that he served in the Naval Reserve from March 23, 1956, until his discharge in April 1960. He cited his X-rays and CT scans in April and May 2002, and indicated that six years ago, he was sent to a doctor at the VA outpatient clinic, Tulsa. With that communication, the claimant submitted duplicate copies of his cervical and lumbar CT scans completed in May 2002, together with outpatient treatment records showing that the claimant related that he was in a motor vehicle accident in 1952 with the whole left side of his body and head affected, and that new X-rays showed severe degenerative joint disease of the lumbosacral spine with osteoporosis. He was referred for consultation. A June 2002 consultation report from the VAMC, Tulsa, showing that the claimant was seen with complaints of chronic neck pain fairly constantly for 7-8 years, aggravated by turning his neck and head and with occasional "shock-like" pains to the upper arms and reduced neck motion, all of which the claimant associated with a history of motor vehicle accident in 1952. The claimant further complained of constant low back pain without radiation to the lower extremities, aggravated by bending forward, lifting, and twisting of the trunk, all of which the claimant associated with a history of motor vehicle accident in 1952. The consultation report noted that the claimant was in mild distress related to neck and back pain; that his movements were slow and guarded; that the range of cervical motion was reduced, with equivocal ridiculer pain to the intrascapular region with stress; that sensation in the upper extremities were intact; and that fine motor functions of the hands were intact. A reduction in range of motion of the lumbosacral spine was noted, without radicular pain, while straight leg raising was negative at 70-78 degrees, bilaterally, and sciatic notch tenderness was not found. Reflexes in the knees and ankles were symmetrical at 2/4, bilaterally, and sensation was intact to pinwheel in the lower extremities. The claimant was noted to have an inflexible kyphosis of the thoracic spine and shoulder protraction, and his gait showed a kyphotic posture with reduced trunbk rotation. The findings on the May 2002 CT scans of the cervical and lumbar spines were cited, and the impression was chronic low back pain related to degenerative disc disease and degenerative joint disease of the lumbosacral spine; and chronic cephalgia related to degenerative disc disease and degenerative joint disease of the cervical spine with foraminal encroachment and possible radiculopathy, C5-6. Cervical traction was recommended. Outpatient treatment records from the VAMC, Muskogee, dated in June 2002, show that the claimant was seen with complaints of cervicalgia and lumbalgia; that his neck pain was not constant but was exacerbated on certain moves; that his low back pain was more frequent; that he had recently seen another VA physician on consultation who had identified degenerative disc disease and degenerative joint disease as the cause of those problems; that on examination, the claimant had an antalgic gait, some tenderness of the cervical spine, and no tenderness over the back. The claimant was told to return to the clinic in six months. By RO letter of September 17, 2002, the claimant and his representative were informed of the provisions of the VCAA, including VA's duty to notify the claimant of all information and evidence necessary to substantiate his claim for service connection and of VA's duty to assist him in obtaining all such evidence. The claimant was informed that he had 30 days to submit any additional evidence that he wished to have considered. He was provided a waiver of the 30-ay development period, and asked to execute and submit that document. That document was executed by the claimant, who stated that he had no additional evidence to submit, and asked that his appeal be processed. A rating decision of September 2002 determined that new and material evidence had not been submitted to reopen the claim for service connection for residuals of a back injury. The claimant and his representative were notified of that action and of his right to appeal by RO letter of September 30, 2002, with an enclosed copy of the rating decision. That letter informed the claimant and his representative of the nature of new and material evidence, and the means by which he could reopen his claims. The veteran filed a timely Notice of Disagreement in October 2002, taking issue with the determination that he had failed to submit new and material evidence to reopen his claim for service connection for residuals of a back injury. With that document, he submitted a duplicate copy of the attachment previously submitted in September 2002, in which he related that he enlisted in April 1952; that he went to boot camp [recruit training] at the U.S.N.T.C., San Diego; that he was in a motor vehicle accident in September 1952; that he was sent back to the USNH, San Diego; that later in September 1952, he was transferred to the Naval Base at Point Mugu; that in December 1952, he sustained a back injury when the wind blew a door shut; that he was hospitalized and after 24 hours, he was passing kidney stones; that he was subsequently transferred from the Point Mugu Base Hospital to the USS GENERAL MITCHELL (TAP-114); and that in September 1954, he was transferred to the U.S. Naval Hospital at Bremerton, Washington; and that he served in the Naval Reserve from March 23, 1956, until his discharge in April 1960. He cited his X-rays and CT scans in April and May 2002, and indicated that six years ago, he was sent to a doctor at the VA outpatient clinic, Tulsa. The claimant further requested reevaluation for his service- connected kidney stones, incorrectly stating that the evaluation for that disability had originally been 20 percent, but had been reduced to 10 percent disabling. In an RO letter of October 17, 2002, the claimant and his representative were again informed of the provisions of the VCAA, including VA's duty to notify the claimant of all information and evidence necessary to substantiate his claims for service connection and for increased ratings, and of VA's duty to assist him in obtaining all such evidence. The claimant was informed that he had 30 days to submit any additional evidence that he wished to have considered. He was provided a waiver of the 30-day development period, and asked to execute and submit that document. VA outpatient treatment records from the VAMC, Tulsa, dated from November 2001 to September 2002, show that the claimant was seen in November 2001 for routine follow-up, and that he complained pain in his back, neck, hip, knee and the left side, and pain in his left lower extremity from his leg to his hip and low back. The impression was osteoarthritis of multiple joints. He was noted to be retired but indicated that he continues to do repairs. The claimant reported that he walks 3 miles daily for exercise. A depression screen was negative. Physical examination disclosed that his neck was supple and no tenderness or organomegaly was present. The pertinent impression was osteoarthritis, multiple joints. In May 2002, the claimant related that severe low back pain keeps him up at night and that he experiences pain in his left hip when walking, which he associated with a motor vehicle accident in 1952 that allegedly caused whole left body damage from head to toe with loss of consciousness, contusions and confusion and a shift in the rib cage. His current complaints included intercostal pain on coughing, neck pain and stiffness, stiff shoulders, low pack pain and left hip pain, while examination revealed that his neck was not swollen but was stiff on passive motion, and that straight leg raising elicited complaints of pain. The impression was severe pain with degenerative joint disease, and a rehabilitation consult was scheduled for spine evaluation, to include a CT scan of the spine. The veteran offered a history was having undergone urethral dilatation in the past for passage of a stone, with frequent sediment stones passed. In September 2002, the claimant stated that Diclofenac relieves his back pain but not for a full 12 hours. The impression was chronic low back pain radiating to the right leg. By RO letter of November 14, 2002, the veteran and his representative were notified of his right to elect to have a Decision Review Officer assigned to his case or to pursue the traditional appeals process. In January 2003, the claimant and his representative were provided a Statement of the Case which notified them of the issue on appeal, the evidence considered, the adjudicative actions taken, the pertinent law and regulations pertaining to reopening a previously finally denied claim for service connection, the applicable portions of VA's Schedule for Rating Disabilities, and VA's duty of notification to the claimant of required information and evidence and of its duty to assist him in obtaining all evidence necessary to substantiate his claim. A November 2002 report of private medical examination (Dr. A.O.), an osteopath, cited a history of inservice back injury as related by the claimant, including the assertions that the claimant was hit in the back by a door, sustaining fractured ribs and back pain; that he was hospitalized and placed in traction; that two days later he passed some kidney stones; that in 1994, he was hospitalized for kidney stones; and that since that time , he has had 17 episodes of passing stones, characterized by bloating with back pain; and that his current medications are Diclofenac, 50 mg. twice daily, and Hydrocodone/APAP, 500 mgs. p.r.n. Physical examination showed that cervical tenderness was present, bilaterally; that the abdomen was normal and without organomegaly or tenderness on palpation; and that the was no edema of the lower extremities. X-rays revealed no conclusive current evidence as to the existence of kidney stones, while urinalysis and a complete blood count were each within normal limits, and KUB revealed osteopenia of the osseous structures and scoliosis of the lumbar spine, as well as non specific gas patterns. The examination for calculi was limited by stool in the intestine, and the possibility of calculus could not be excluded. A rating decision of September 2002 increased the evaluation of the claimant's service-connected kidney stones from 10 percent to 20 percent disabling, effective October 7, 2002, the date of receipt of his claim. The claimant and his representative were notified of that action and of his right to appeal by RO letter of January 30, 2003, with an enclosed copy of that rating decision. The claimant did not appeal that determination, and it is not currently in appellate status before the Board. In January 2003, the claimant submitted his Substantive Appeal (VA Form 9) perfecting his appeal of the rating decision of September 2002 which determined that new and material evidence had not been submitted to reopen the claim for service connection for residuals of a back injury with degenerative joint disease. In a May 2003 letter, the claimant indicated that he wanted a hearing before a traveling Veterans Law Judge of the Board of Veterans' Appeals, and he was notified by a May 16, 2003 Board letter of the date, time and place of the requested hearing. A hearing was held on June 23, 2003, before the undersigned traveling Veterans Law Judge of the Board of Veterans' Appeals. The veteran testified, in pertinent part; that he served on active duty in the U.S. Navy from April 25, 1952, to March 23, 1956; that he was in a motor vehicle accident in 1952 while traveling to his first shipboard assignment; that he was sent to the Navy Hospital, and from there to Point Mugu; that he was still recovering from the back injury, neck injury and cuts from glass; that while he was working a Point Mugu in the guard mail, the wind caught a steel door that was standing open and slammed it against his back; that such event put him in the hospital again; and that he was hospitalized for his back condition a total of four times while in service; first in September 1952 at the U.S. Navy Hospital in San Diego [Coronado], then in December1952 at the hospital at Point Mugu for injuries caused by the wind-blown door; then again in December 1952 following shipboard duty, he was returned to the Point Mugu medical facility, where he began passing kidney stones; and then in September 1954 with generalized back pain and kidney stones. The claimant testified that he has had symptoms of this back injury ever since service discharge; that he was treated for his back problems from 1956 to about 1980 by Dr. C.S. Summers of Tulsa, who is now deceased; by Dr. David Shapiro from 1956 to seven years ago (i.e., 1996), who is also deceased with no records; and by Dr. James Snipes, who is also decesased with no records extant. The claimant testified that he had tried to obtain medical records from those treating physicians; without success, and that he is currently being treated by VA. The claimant further testified that immediately following service separation, he began working as a tile setter and helper for his brother, who was redoing the buildings at American Airlines; that during the period of his treatment by the above-named private physicians, he was first working for Bottom (unintelligible) and Tile, then working for Roy Myers Floor Covering in Tulsa; and that now his hands, his back and his kegs are so bad that he can't do tile work or repairs. A transcript of the testimony is of record. II. Analysis Under Barnett v. Brown, 83 F.3d. 1380 (Fed.Cir.1996), any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, a potential jurisdictional defect may be raised by the court or tribunal sua sponte or by any party and at any stage in the proceedings and, once apparent, must be adjudicated. Title 38 U.S.C.A. § 7104(b) does not vary the Board's jurisdiction according to how the RO ruled. Accordingly, the Board must independently address the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for claimed disability. In general, RO decisions which are unappealed become final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. 20.200 (2003). The veteran did not file a Notice of Disagreement with the rating decisions of August 1995, March 1996, and August 2002 denying service connection for residuals of a low back injury, and those decisions each became final after one year. It is well-settled law that the submission of new and material evidence by a VA claimant to reopen a previously denied claim is a jurisdictional prerequisite to the reexamination of the veteran's claim by VA and the Board. The Board is obligated by law to conduct a de novo review of this issue. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record, although not its weight, is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. Justus, id., 3 Vet. App. at 513. Medical records describing a claimant's current condition are not material to the issue of service connection. Morton v. Principi, 3 Vet. App. 508, 509 (1992). To the same point, although "new and material evidence" is presumed credible, it must be from a competent source. The Court has noted that "lay assertions of medical causation . . . cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108 (West 1991). Just as the [Board] must point to a medical basis other than its own unsubstantiated opinion (Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)), the veteran cannot meet his initial burden by relying upon his own, or his representative's, opinions as to medical matters. Nor can the veteran meet the 'new and material evidence' burden of 38 U.S.C.A. § 5108 by relying upon such 'evidence'." Moray v. Brown, 5 Vet. App. 211, 214 (1993), citing Grottveit v. Brown, 5 Vet. App. 91 (1993). The Federal Circuit Court has stated that new and material evidence determinations are highly factual and "typically require[] the comparison of two sets of evidence - that which existed prior to the closing of the claim and that produced in conjunction with a request to reopen . . . ." Prillaman and Blackwell v. Principi, __ F.3d __, Nos. 03-7012, 03-7036 (Fed. Cir. Oct. 14, 2003). New and material evidence is defined as evidence not previously submitted to agency decisionmakers 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(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Once the evidence is found to be new and material and the claim is reopened, the presumption that the evidence is credible no longer applies. In the following adjudication [i.e., de novo review], the RO must determine both the credibility and weight of the new evidence in the context of all the evidence, both old and new. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kates v. Brown, 5 Vet. App. 93, 95 (1993). 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. It 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) (2002). As causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Nothing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in § 5108 of this title. 38 U.S.C.A. § 5103A(d)(2)(C)(f) (West 2000). 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. It 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) (2002). As causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). As indicated above, under the VCAA, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2000). In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2002). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that there has been a regulatory change with respect to new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [to be codified at 38 C.F.R. § 3.156(a)]. Because the veteran filed her claim prior to that date, the earlier version of the law, which follows, remains applicable in this case. New and material evidence is defined as evidence not previously submitted to agency decision-makers that 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 decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (2001). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for her claim has been satisfied. See 38 U.S.C.A. § 5103A (West 2000); Elkins v. West, 12 Vet. App. 209 (1999). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record, although not its weight, is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. Justus, 3 Vet. App. at 513. Medical records describing a claimant's current condition are not material to the issue of service connection. Morton v. Principi, 3 Vet. App. 508, 509 (1992). To the same point, although "new and material evidence" is presumed credible, it must be from a competent source. The Court has noted that "lay assertions of medical causation . . . cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108 (West 1991). Just as the [Board] must point to a medical basis other than its own unsubstantiated opinion (Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)), the veteran cannot meet his initial burden by relying upon his own, or his representative's, opinions as to medical matters. Nor can the veteran meet the 'new and material evidence' burden of 38 U.S.C.A. § 5108 by relying upon such 'evidence'. "Moray v. Brown, 5 Vet. App. 211, 214 (1993), citing Grottveit v. Brown, 5 Vet. App. 91 (1993). The record in this case shows that the evidence of record at the time of the last previous decision denying service connection for residuals of a low back injury included the claimant's original application for VA disability compensation benefits; his service medical records; VA outpatient treatment records dated from August to December 1995, and in May 2002; a report of VA examination in March 1996; a report of VA fee-basis examination in June 2002; a report of VA examination in May 2002. The above-cited evidence shows that the veteran's service entrance examination, conducted in April 1952, disclosed that his spine and his neurological and musculoskeletal systems were normal. Those service medical records show that he sustained generalized contusions in a motor vehicle accident on September 27, 1952, when the vehicle turned over; that he was initially treated by Dr. Paul Atkins, Jr., at Hillcrest Memorial Hospital, Tulsa, Oklahoma; and that he was given extensive X-rays at that facility and his contusions and abrasions were treated. In October 1952, the veteran's injuries sustained in the accident were described as multiple concussions and abrasions. A determination by the appropriate service department authorities in March 1953 ruled that the claimant's injuries sustained in that motor vehicle accident were incurred in the Line of Duty and were not the result of his own misconduct. The service medical records show that in December 1952, the veteran was admitted to the Dispensary, United States Naval Aviation Training Center, Point Mugu, California, with complaints of severe pain in the left flank, radiating down his left groin and into the left testicle, with no prior history of hematoma or pyuremia, and no past kidney history. A review of systems was normal except for moderate tenderness in the left costavertebral angle and red blood cells in the urine, while kidney, ureter, and bladder (KUB) film was inconclusive. It was believed that the problem was calculus, kidney, left, and there were no current clinical findings indicative of a spine or musculoskeletal injury. The veteran was transferred to the United States Naval Hospital, Corona [now USNH, San Diego], for further treatment and disposition. Records from that medical facility show that the veteran was admitted with a diagnosis of calculus, kidney, left; that examination revealed marked rigidity over the left kidney and ureter with recurring renal colics; that 24 hours after admission, the veteran passed a small urinary calculus; and that a follow-up IVP and KUB showed normal function of both kidneys, with no evidence of any remaining calculi, and there were no clinical or radiographic findings of spine or musculoskeletal injury. The claimant was returned to duty at the U. S. Naval Aviation Training Center, Point Mugu, and in March 1954, the veteran was examined at that duty station and found physically qualified for transfer. In August 1954, while aboard USS GENERAL WILLIAM A. MANN (TAP-114), the claimant was seen for complaints of back pain, noting previous back pain in 1952 when he had ureteral colic due to a kidney stone which was passed at that time. Examination disclosed that the veteran was in moderate distress, with back pain in the lumbar area, bilateral CVA tenderness to percussion, worse on the left, an elevated red blood cell count, and burning on urination. The following day, he was asymptomatic, and his back pain had diminished. He was discharged to duty after four days with a diagnosis of nephrolithiasis, but readmitted one week later with complaints of chills and fever, and back and abdominal cramps, with bilateral costavertebral pain which wakened him. The following day, his chills and fever had subsided and he was feeling relatively well except for occasional lumbar pains. There were no clinical or radiographic findings of spine or musculoskeletal injury or disability during these hospitalizations. The veteran remained in the sick bay until September 10, 1954, when he was transferred to the U. S. Naval Hospital, Bremerton, Washington, for evaluation and treatment of a condition diagnosed as nephrolithiasis. Service medical records from that facility show that he was admitted to that facility with a diagnosis of nephrolithiasis, and complaints of intermittent pain in the back and flanks, bilaterally, worse on the left, with occasional frequency and burning on urination. The attending physician cited the claimant's history of renal calculi treated on numerous occasions symptomatically since 1952, with the passing of stones on numerous occasions corroborated by the medical record. His medical history included treatment for generalized contusions at the USNTC in September 1952, and admission to the USNH, Corona, in December 1952, with a diagnosis of calculus in the kidney. Physical examination was essentially normal except for bilateral tenderness in both flanks and in the costavertebral, more marked in the left side, while the spine was noticeably flat and there was some weakness in the upper limbs on lifting weights. Urinalysis was essentially negative chemically and microscopically on September 10, September 14, and September 29, 1954, while on September 14, a urine culture was negative. On September 10, a KUB was negative for renal calculi, while in September17, a IV urogram was negative, and in September 23, urine obtained on a retrograde pyelogram was essentially negative on routine examination and culture. It was noted that the claimant's symptoms persisted up until September 21, 1954, when they diminished somewhat. At this time he had residual pain in the back, more or less as noted on his admission, and he was placed on routine therapy for renal calculus, but none were observed to pass and it was presumed, in the absence of any positive findings on cystoscopic retrograde pyelogram and IVP, that stones may have passed earlier. The attending service physician stated that there was no evidence of any infection in the urinary tract; that on September 26, 1954, because of residual soreness in the left flank, the veteran was sent to physiotherapy for exercise to strengthen and mobilize the back; that he had continued daily physiotherapy to his spine and extro girdle, with loss of much of his pain; that an orthopedic consultation on October 6, 1954, showed that the claimant was orthopedically qualified for full duty; that there was no evidence of musculoskeletal derangement of his back; that many of the veteran's symptoms were due to a strong functional overlay; and that in view of his many numerous admissions and emotional outlook, the veteran should have an orthopedic or urological consultation prior to any admission in the future. The claimant was discharged to full duty on October 13, 1954, with a diagnosis of calculus in kidney. The Board notes that the hospital treatment records from the U. S. Naval Hospital, Bremerton, Washington, showed that while the claimant's previous history of kidney stones and renal colic was noted, there were no objective findings of either during his hospitalization at that facility, urinalysis was essentially negative chemically and microscopically, a urine culture was negative, a KUB was negative for renal calculi, an IV urogram was negative, urine obtained on a retrograde pyelogram was essentially negative on routine examination and culture, and there was no evidence of any infection in the urinary tract. None of those findings appear indicative of kidney stones. Rather, those records show that the claimant's symptoms persisted until September 21, 1954, at which time he was shown to have residual pain in the back, bilateral tenderness in both flanks and in the costavertebral angle, more marked in the left side, while the spine was noticeably flat (i.e., loss of normal spinal lordosis) and there was some weakness in the upper limbs on lifting weights. The claimant was referred to physiotherapy where he obtained some relief following exercise to strengthen and mobilize his back, and continued to have daily exercise to his spine and extro girdle, with loss of much of his pain. The diagnosis at hospital discharge was changed from nephrolithiasis to calculus in kidney, although all laboratory and diagnostic tests disclosed no findings which would support that diagnosis. The service medical records are silent for any further complaint, treatment, findings or diagnosis of low back pain during the veteran's remaining period of active service. His service separation examination, conducted in March 1956, showed that the veteran's spine and his neurological and musculoskeletal systems were normal. The claimant's orginal application for VA disability compensation benefits (VA Form 21-526), received in May 1995, showed no postservice treatment for a back disability; rather, the claimant indicated "none." The rating decision of August 1995 denied service connection for residuals of a back injury based, in part, upon the absence of evidence showing a chronic back condition or postservice treatment. VA outpatient treatment records, dated from August to December 1995, show that the claimant was seen in August 1995 for complaints of low back pain, and that laboratory reports and urinalysis were negative, while examination revealed lumbar pain, bilaterally, with positive muscle spasm in the lumbar spine. The assessment was lumbar muscle pain. Multiple X-rays of the lumbosacral spine in September 1995 showed a disc phenomenon and narrowing of the lumbosacral disc space indicating some degeneration of the disc at that level, while some small spurs of a spondylotic nature were present anteriorly on the vertebral bodies, and osteopenia was evident throughout. Facet degenerative changes were evident at the 4th and 5th levels. The radiographic impression was demineralized bony structures; disc narrowing at the L5-S1 level; and facet arthritis at the 4th and 5th levels. A report of VA genitourinary examination in March 1996 showed a diagnosis of nephrolithiasis, without findings of residuals of a back injury, while a report of VA fee-basis genitourinary examination in June 2002 showed findings consistent with kidney stones, without findings of residuals of a back injury; and VA outpatient treatment records, dated in May 2002, disclosed showing that a CT scan of the cervical spine revealed apparent narrowing of the C5-C-6 and C-6 and C-7 disc spaces with degeneration of those discs and facet arthritis changes quite prominent at C5-C-6 and C-6 and C-7 levels, while neural foramina narrowing was quite prominent at the C5-C6 level on the right side and at the C6-C7 level on the left side, and mild narrowing of the left C5-C6 neural foramen was also seen. A CT scan of the lumbar spine performed that same day showed degenerative changes occurring at the L3-L4, L4-L5, and L5-S1 levels, with some mild stenosis occurring at the L4-L5 level, as well as mild hypertrophy of the ligamentum flavum with concentric bulging at the L4-L5 level causing some flattening of the anterior convexity of the thecal sac, and concentric bulging occurring at L5-S1 level. The examining radiologist identified the most striking features of the examination as the osteoarthritic changes occurring at the facets at the L3-L4, L4-L5, and L5-S1 levels. The foregoing constitutes the evidence of record at the time of the August 2002 rating decision which determined that new and material evidence had not been submitted to reopen the claim for service connection for residuals of a back injury. In September 2002, the claimant undertook to reopen his claim for residuals of a back injury by submitting additional evidence. The additional evidence submitted included a VA Form 21-4138, in which the claimant reiterated his assertions that he sustained a back injury in a motor vehicle accident in September [sic] 1952 while on active duty, and additional VA outpatient treatment records, dated in June 2002, showing that the veteran complained of cervicalgia and lumbalgia, together with duplicate copies of VA outpatient treatment records from the VAMC, Tulsa, dated in May 2002, showing the findings on CT scans of the cervical and lumbar spines in May 2002. A report of examination by a private physician in November 2002 cited the claimant's assertion that he was hit in the back with a door in November 1952, with some fractured ribs; that he was hospitalized and placed in traction; and that he is currently being treated for low back pain. The diagnosis was kidney stones. The veteran appeared and offered testimony in support of his claim for service connection for residuals of a back injury at a hearing held in June 2003 before the undersigned Veterans Law Judge of the Board of Veterans' Appeals. In that testimony, the veteran testified, in pertinent part; that he served in the U.S. Navy from April 1952 to March 1956; that he was in a motor vehicle accident in 1952 while traveling to his first shipboard assignment; that while he was working at Point Mugu in the guard mail, the wind caught a steel door that was standing open and slammed it against his back; that he has had symptoms of this back injury ever since service discharge; that he was treated for his back problems from 1956 to about 1980 by Dr. C.S. Summers of Tulsa, who is now deceased; by Dr. David Shapiro from 1956 to seven years ago (i.e., 1996), who is also deceased with no records; and by Dr. James Snipes, who is also decesased with no records extant. The claimant testified that he had tried to obtain medical records from those treating physicians; without success, and that he is currently being treated by VA. The claimant further testified that immediately following service separation, he began working as a tile setter and helper for his brother, who was redoing the buildings at American Airlines; that during the period of his treatment by the above-named private physicians, he was first working for Bottom (unintelligible) and Tile, then working for Roy Myers Floor Covering in Tulsa; and that now his hands, his back and his kegs are so bad that he can't do tile work or repairs. The Board notes that the rating decision of March 1996 denied service connection for residuals of a back injury based, in part, upon the absence of continuity of symptomatology from the time of service discharge to his back disability diagnosed in August 1995. However, at his June 2003 hearing, the veteran offered sworn testimony that he has experienced symptoms of back symptomatology from the time of service discharge to the present; that he was, in fact, treated for his claimed residuals of a back injury 1956 to about 1980 by Dr. C.S. Summers of Tulsa; by Dr. David Shapiro from 1956 to seven years ago (i.e., 1996); and by Dr. James Snipes. The Board finds that the claimant's sworn testimony to the effect that he experienced back symptomatology from the time of service discharge to the present is both new and material to the claim for service connection for residuals of a back injury; and that his testimony that he underwent treatment for residuals of his inservice back injury during the initial postservice year and continuing through 1996 is both new and material to the issue of service connection for residuals of a back injury with degenerative joint disease and degenerative disc disease. As noted, For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record, although not its weight, is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Based upon the foregoing, and for the reasons and bases stated, the Board finds that new and material evidence has been presented to reopen the claim for service connection for residuals of a back injury; that the prior rating decisions denying that claim are no longer final; and that the claim for service connection for residuals of a back injury with degenerative joint disease and degenerative disc disease has been reopened. ORDER The appeal to reopen the claim for service connection for a back disability granted. REMAND In view of the Board's determination that new and material evidence has been submitted to reopen the claim for service connection for residuals of a back injury, the Board may proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In the instant appeal, the Board finds that VA's duty to assist has not been fulfilled, and that Remand is warranted to comply with the VA's duty of notification and assistance set for the VCAA. The Board notes that the veteran was initially treated after his September 1952 motor vehicle accident by Dr. Paul Atkins, Jr., at Hillcrest Memorial Hospital, in Tulsa, Oklahoma. Those records have never been requested or obtained by the RO, and remand is warranted to obtain those records and the X-rays taken at that time.] The record further shows that the claimant has offered sworn testimony he has experienced symptoms of back symptomatology from the time of service discharge to the present; that he was, in fact, treated for his claimed residuals of a back injury 1956 to about 1980 by Dr. C.S. Summers of Tulsa; by Dr. David Shapiro from 1956 to seven years ago (i.e., 1996); and by Dr. James Snipes. He has further testified that those physicians are deceased, and that he has been unable to find those records of his postservice treatment. The RO should obtain the necessary medical record release authorizations from the claimant, and attempt to obtain all medical records pertaining to treatment records of the veteran by those physicians. The record further shows that the claimant has alleged that following service separation, he served in the Navy Reserve from March 23, 1956, until his discharge in April 1960. The record shows that the RO has not requested or obtained the service medical and administrative records from the claimant's reported service in the Navy Reserve from March 23, 1956, until his discharge in April 1960. The record further shows that the RO has not obtained a VA orthopedic examination and medical opinion as to whether it is at least as likely as not that the claimant's current back problems were caused or worsened by the injuries sustained in his inservice motor vehicle accident on September 27, 1952. In view of the fact that multiple inservice injuries to the claimant are documented in his service medical records, and that he was treated during service for lumbar complaints, the Board finds that a VA examination and medical opinions is warranted under the provisions of 38 U.S.C.A. § 5103A(West 2000). The appellant is hereby informed that he has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The case is Remanded for the following actions: 1. Ask the veteran to identify specific names, addresses, and approximate dates of treatment for all non-VA health care providers from whom he has received treatment for his claimed residuals of a back injury, to include possible traumatic arthritis. With any necessary authorization from the veteran, attempt to obtain copies of all pertinent records identified by the veteran that have not been previously secured. In any event, attempt obtain copies of all clinical records and X-rays pertaining to treatment of the veteran on September 27, 1952, by Dr. Paul Atkins, Jr., at Hillcrest Memorial Hospital, in Tulsa, Oklahoma, as well as all clinical records pertaining to treatment of the veteran in the possession of Dr. C.S. Summers of Tulsa, Oklahoma (1956 to 1980); by Dr. David Shapiro of Tulsa, Oklahoma (1956 to 1980); and by Dr. James Snipes of Tulsa, Oklahoma, during the period from 1956 to 1996. The RO should further obtain all clinical records pertaining to treatment of the veteran for a back disability at the VAMC, Tulsa, since June 2002. In the event any such records no longer exist or cannot be obtained, a written explanation to that effect should included in the claims folder. 2. Obtain the veteran's complete service medical and administrative records from his reported service in the Navy Reserve from March 23, 1956, until his discharge in April 1960. 3. Upon completion of the above-requested development, obtain a current VA orthopedic examination from a qualified examiner who has first reviewed the veteran's complete claims folder, to include his service medical records. Upon completion of that review and his examination, the examining VA physician should express his or her medical opinion as to whether it is at least as likely as not that the claimant's current back problems were caused or worsened by the injuries sustained in his inservice motor vehicle accident on September 27, 1952. The examiner must affirmatively indicate that the reviewed the veteran's complete claims folder, to include his service medical records, prior to the examination. A complete rational should be provided for any medical opinion expressed. 4. Upon completion of the requested development, readjucicate the claim for service connection for residuals of a back injury ion light of the additional evidence obtained. If the benefit sought on appeal remains denied, the appellant should be provided a Supplemental Statement of the Case. That Supplemental Statement of the Case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The Court has held that a remand by the Court or the Board confers on the appellant or other claimant, as a matter of law, the right to compliance with the remand orders. Further, the Court stated that where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). All cases returned to the Board which do not comply with the instructions of the Board remand will be returned to the RO for further appropriate action as directed. 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 2002) (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. 8.43 and 38.02. ______________________________________ G. H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 459 7 Pag e 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Pa ge 2