Citation Nr: 0112657 Decision Date: 05/03/01 Archive Date: 05/09/01 DOCKET NO. 97-27 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from December 1948 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 1997, which denied the veteran's application to reopen a previously denied claim for service connection for residuals of a low back injury. The Board denied the appeal in a decision dated in July 1998, and the veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). Pursuant to a joint motion filed by the parties, in January 1999, the Court vacated the Board's decision, and remanded the issue to the Board for further action. The Board issued another decision in August 1999, and, again, the veteran appealed the Board's decision to the Court. Again, the parties filed a joint motion, which was granted by order dated in October 2000. This decision/remand is issued in response to the directives contained in the joint motion for remand. FINDINGS OF FACT 1. Service connection for a low back disability was last denied by an unappealed rating decision of the RO in May 1995. 2. Evidence received since that determination bears substantially and directly on the matter in question, and has been found to be so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the RO's final decision in May 1995 is new and material, and the veteran's claim of service connection for a low back disability may be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to service connection for degenerative joint disease of the lumbosacral spine was denied by the Board in January 1986. A subsequent application by the veteran to reopen his claim was denied by the RO in May 1995. Those decisions are final. 38 U.S.C.A. §§ 7103, 7104, 7105 (West 1991); 38 C.F.R. § 3.104 (2000). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" is defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a). In considering whether there is "new and material evidence" under this standard, all evidence submitted since the last time that the claim was finally disallowed on any basis must be considered. Evans v. Brown, 9 Vet.App. 27 (1996). Evidence of record at the time of the May 1995 rating decision included the veteran's testimony that he had injured his back while performing his duties as a combat medic in service, and medical evidence showing the presence of degenerative joint disease of the lumbosacral spine in 1984. Evidence received since that determination includes an April 1999 report by J. McConnell, M.D., which relates that the veteran had experienced chronic back problems since a service related back injury as an Army medic in Korea in 1950. The veteran had chronic problems since then, and had had multiple treatments over the years. Following an examination, he concluded that the veteran had a chronic back problem since a service-related injury in 1950, and now had symptomatic degenerative intervertebral disk disease and lumbar spondylosis. His original injury most likely represented herniated intervertebral disc L5-S1 and/or L4-5. He had developed chronic degenerative disc disease at other levels over the years. The parties agreed in a joint motion that this evidence was so significant that it must be considered in order to fairly decide the merits of the claim, and directed the Board to reopen the claim. Accordingly, the claim is reopened with the submission of new and material evidence, and VA must review the claim in light of all the evidence, new and old. ORDER The claim for entitlement to service connection for residuals of a low back injury is reopened; to that extent, the appeal is granted. REMAND There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well- grounded claim, and redefines the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the above decision finding that the veteran's claim has been reopened by the submission of new and material evidence, as well as the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because the RO has not yet considered the claim on the merits, or whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. Further, additional evidence which was not first reviewed at the RO has been received at the Board. The veteran did not waive RO consideration of the evidence. Hence, the RO must review the claim in light of this evidence. See 38 C.F.R. § 21.1304(c). This evidence consists of an opinion from C. Bash, M.D., received in February 2001, who concluded, based on a review of the veteran's medical file, that he clearly injured his spine during combat and has had chronic persistent symptoms since then. However, he also noted that his review of the veteran's file included the veteran's service medical records. Yet, service medical records pertaining to the veteran are not available. Moreover, Dr. Bash did not actually examine the veteran. Additionally, the veteran was discharged from service in 1952, and the earliest post-service record of an evaluation of the veteran's back, noted in the report of Dr. Bash as well as in the claims file, is in 1984. There are no records on file pertaining to the intervening 32 year period. According to Dr. McConnell's statement, the veteran had undergone multiple treatments for his back over the years. Pursuant to the VCAA, VA must make reasonable efforts to obtain all potentially relevant records. Therefore, the RO must attempt to obtain all records of treatment for a back disorder from 1952 to 1984. The veteran, who received a Purple Heart and a Combat Medical Badge, claims that his back injury occurred in combat. Accordingly, the provisions 38 U.S.C.A. § 1154(b) are for application, and, as applied in this case, provide a presumption that the veteran injured his back in service, despite the absence of service medical records. Accordingly, the question for consideration is whether such injury resulted in the veteran's current back disability. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should ask the veteran to provide a list of the names, locations, and approximate dates of treatment of any physicians, hospitals, or treatment centers (private, VA or military) who provided him with treatment for his low back disability from the time of his discharge from service in May 1952 to May 1984. The RO should obtain any records so identified. The results of the requests, whether successful or unsuccessful must be documented in the claims file. The veteran must be informed of any negative results, and that he himself may submit any records directly to the RO. 2. Thereafter, the veteran should be scheduled for an examination by a board- certified orthopedic specialist to determine whether he currently has residuals of a low back injury which occurred in service. The claims folder, to include a copy of this remand, must be available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests or studies should be completed and the results reviewed by the examiner prior to the final opinion. The complete rationale for any opinion expressed must explicitly be set forth in a report, including the evidence relied upon for the opinion. The reasons for agreeing or disagreeing with the April 1999 opinion of Dr. McConnell and the February 2001 opinion of Dr. Bash should also be provided. 3. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 4. Thereafter, the RO should readjudicate the claim for service connection for residuals of a low back injury on the merits, and with consideration of 38 U.S.C.A. § 1154(b). If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (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. GEORGE R. SENYK Member, Board of Veterans' Appeals Error! Not a valid link.