Citation Nr: 9906960 Decision Date: 03/16/99 Archive Date: 03/24/99 DOCKET NO. 97-29 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence sufficient to reopen a claim for service connection for spondylolysis of L5 has been submitted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from May 1982 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In a February 1998 VA Form 1-646, the veteran's representative indicated that the veteran had a chronic low back spasm, independent of his spondylolysis, resulting from active service. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a March 1991 decision, the Board denied the reopening of the veteran's claim of entitlement to service connection for spondylolysis of L5 on the basis that there was no new and material evidence. 2. The additional evidence added to the record since the March 1991 decision of the Board, by itself or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The decision of the Board in March 1991 denying the reopening of the claim of entitlement to service connection for spondylolysis of L5 is final. 38 U.S.C. §§ 3008, 4004 (1988) (now 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1998)). 2. New and material evidence has been received to warrant reopening the claim of entitlement to service connection for spondylolysis of L5. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.156(a), 20.1105 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In a February 1985 decision, the Board denied service connection for a back disability on the basis that spondylolysis was not a disease or injury within the meaning of the applicable legislation and that the veteran did not have a low back disability that was incurred in or aggravated by service. The evidence of record at the time of that Board decision included service medical records. Service medical records reveal that in August 1982 the veteran reported that he had had pain since June 1982. He also indicated that he had had difficulty "humping hills" during boot camp. The assessment was a back pain of an unknown etiology. The veteran continued to complain of lower back pain in September 1982. In early February 1983, x-rays revealed an abnormal L5. Later that month, the veteran underwent a medical board examination. The veteran reported that he had had back pain since 1977 when he had a football injury. He indicated that he began to experience intolerable pain during boot camp when he was required to go up and down hills with a backpack. On palpation of the lumbar spine, a step-off was felt between the fifth lumbar and the first sacral vertebrae, and there was tenderness in that area. The neurologic examination revealed 2+ patellar reflexes, 2+ ankle reflexes, no Babinski sign, and normal motor testing. On sensory testing, the veteran had some hypesthesia of the dorsal and lateral aspects of the left foot and the anterior aspect of the right thigh. X-rays revealed that there was bilateral spondylolysis of L5 and that there was no spondylolisthesis. The diagnosis was bilateral spondylolysis of L5. It was determined that the condition existed prior to service and that it was not aggravated during service. In March 1991, the Board denied the veteran's application to reopen the claim of entitlement to service connection for spondylolysis of L5 on the basis that new and material evidence had not been submitted. The additional evidence of record at the time of that Board decision included the veteran's entrance examination and a transcript of an August 1990 hearing held at the RO before a hearing officer. The veteran's entrance examination revealed that the veteran had been hit in the right sacroiliac area in 1977 while playing football and that he was treated with manipulation and pills. It was noted that the veteran had a lordotic back. The assessment was acute lumbosacral strain, which had resolved; the veteran was found to be qualified for enlistment. At the August 1990 hearing, the veteran testified about the history of his back disorder. In September 1991, the veteran's motion for reconsideration of the March 1991 Board decision was denied. The evidence that the veteran has submitted since the March 1991 Board decision includes a May 1989 VA treatment record and an October 1996 statement from a Dr. Cameron. The May 1989 VA treatment record reveals that the veteran had severe degenerative joint disease in the lumbar spine. In his statement, Dr. Cameron indicated that, when he first treated the veteran in April 1990, the veteran had recently had a work-related injury and that the veteran then underwent a decompressive laminectomy and spine fusion at L5-S1 in December 1990. The physician noted that he had reviewed some of the veteran's service medical records. The doctor opined that the spondylolysis was a congenital abnormality, which pre-existed service, and that it was aggravated by service. In particular, Dr. Cameron indicated that during service the lesion became aggravated and painful and that the spondylolysis had been corrected by surgery. Legal Criteria Service connection may be established for a disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty. 38 U.S.C.A. § 1131. While congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation, any disability from a superimposed chronic acquired disease or injury during service may be considered for service connection. See 38 C.F.R. § 3.303(c) (1998); VAOPGCPREC 82-90 (1990). Every veteran of peacetime service after December 31, 1946, should be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991). If there is peacetime service after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Medical facts and principles may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b) (1998). When a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made. 38 U.S.C. §§ 3008, 4004 (1988) (now 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1998)). New and material evidence means evidence not previously submitted to agency decision makers 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 to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1998). For the purposes of determining whether new and material evidence has been submitted, credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As to the determination of the materiality of the evidence presented since the last final disallowance of the claim, the newly presented evidence does not need to be probative of all of the elements that are required to award a claim, but instead needs to be probative only as to each element that was a specified basis for the last disallowance. Evans v. Brown, 9 Vet. App. 273, 284 (1996). In this case, the veteran needs to present evidence that his preexisting back disorder is a disability within the meaning of the applicable legislation and that it was aggravated during active service. Analysis The statement of Dr. Cameron is new and material evidence. While noting that spondylolysis is congenital, Dr. Cameron indicated that it was aggravated during service. This evidence is new, and it is also probative of whether the veteran's preexisting back disorder was aggravated during active service. Whether spondylolysis actually can be aggravated is a medical question. Accordingly, the additional evidence is so significant that it must be considered to fairly decide the merits of the veteran's claim, and the claim of entitlement to service connection for spondylolysis of L5 is reopened. ORDER The claim of entitlement to service connection for spondylolysis of L5 is reopened. REMAND In the above decision, the Board has determined that new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for spondylolysis of L5. Since the Board has held on appeal that the claim has been reopened, the entire evidentiary record must accordingly be considered de novo. As such, the case should be remanded, pursuant to the decision of the the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) in Bernard v. Brown, 4 Vet. App. 384 (1993). Also, additional development is necessary. The pre-service medical records regarding the 1977 football injury and the post-service medical records regarding the 1990 injury are not of record. Based on the information of record, the veteran may have filed a Workers' Compensation claim for the 1990 injury. Also, the only copy of the veteran's entrance examination appears to have been provided by the veteran and may be incomplete. In light of the above, this case is REMANDED to the RO for the following: 1. The veteran should be asked to identify all treatment he has received for his back disorder, to include the names and addresses of all physicians and facilities that have treated or evaluated him both before and after active service, including all treatment related to the 1977 pre-service football injury and 1990 work-related injury. He should also identity and provide the address of the physician who performed the pre-service contract orthopedic consultation for the Marine Corps. The veteran should also be asked to provide the address of the B.D. Holt Company and to indicate whether he has ever filed a Workers' Compensation claim. After obtaining appropriate authorization, the RO should attempt to obtain the records identified by the veteran that are not already in the claims file, specifically to include copies of all relevant records from the San Antonio, Texas, VA Medical Center and from Bruce M. Cameron, M.D. 2. The RO should request the veteran's complete original service medical records from the National Personnel Records Center and any other appropriate sources. The records should include any reports of the pre-service orthopedic consultation and the medical history questionnaire completed by the veteran at the time of entrance. The veteran also should be asked for any additional service medical records and the report of the "special examination" he underwent prior to being accepted for service as referred to in his VA Form 9. The RO must document all efforts to locate and retrieve the veteran's service medical records. 3. The RO should obtain the veteran's release to obtain any pertinent records from B.D. Holt Company, relevant to an employment-related back injury incurred in or around April 1990. The employer also should be asked whether the veteran filed a Workers' Compensation claim in regard to any back injury. 4. The RO should obtain the medical records and decision in any Workers' Compensation claim filed by the veteran. 5. After the development requested above has been completed to the extent possible, the RO should provide the claims file and a separate copy of this remand to a board-certified orthopedic surgeon for an opinion as to the following: (1) Did the veteran's preexisting spondylolysis of L5 undergo a permanent increase in severity (rather than a temporary exacerbation of symptoms) in service and if so, (2) what constituted the increase and was the increase due to natural progression of the condition. The specialist must state the rationale for the opinion. 6. The RO should then review the specialist's report. If it is not responsive to the Board's instructions, it should be returned to the specialist as inadequate. 7. After the development requested above has been completed to the extent possible, the RO should again review the record and adjudicate de novo the claim of entitlement to service connection for spondylolysis of L5. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case containing all applicable laws and regulations not previously included and given the opportunity to respond thereto. No action is required of the appellant until he receives further notice. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (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. JANE E. SHARP Member, Board of Veterans' Appeals - 9 -