Citation Nr: 0116658 Decision Date: 06/20/01 Archive Date: 06/26/01 DOCKET NO. 94-06 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. M. Panarella INTRODUCTION The veteran served on active duty from July 1941 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). In February 1996, the Board confirmed the denial of the issue on appeal and the veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). The Court, in a Memorandum Decision dated in October 1998, vacated and remanded in part the February 1996 Board decision for readjudication consistent with Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In July 1999, the Board again confirmed the denial of the issue on appeal. The Court, in a Memorandum Decision dated in December 2000, vacated and remanded the July 1999 Board decision. The Joint Motion to Remand granted by the Court directed that the Board find that the veteran had submitted new and material evidence in support of his claim for service connection for a low back disability. Since that time, the veteran has submitted additional evidence in support of his claim to the Board. As this evidence was accompanied by a waiver of RO consideration, the Board will consider this evidence and proceed with appellate review. See 38 C.F.R. § 20.1304(c) (2000). FINDINGS OF FACT 1. By unappealed decision dated September 1953, the RO denied the veteran's claim of entitlement to service connection for a low back disability. 2. The evidence associated with the claims file subsequent to the September 1953 denial bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered to decide fairly the merits of the claim. CONCLUSIONS OF LAW 1. The RO's September 1953 decision denying entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2000). 2. The evidence received since the September 1953 rating decision is new and material, and the requirements to reopen the veteran's claim of entitlement to service connection for a low back disability have been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim of entitlement to service connection for a low back disability was previously considered and denied by the RO in a September 1953 rating decision. The RO found that the record contained no evidence of a back disability. The veteran was notified of the September 1953 decision and provided with his appellate rights that same month, but he did not appeal the decision. The RO again denied the veteran's claim of entitlement to service connection for a low back disability in a March 1992 rating decision, finding that new and material evidence sufficient to reopen the claim had not been submitted. Subsequent rating decisions have confirmed and continued this denial. As the veteran did not appeal the RO's September 1953 rating decision, that determination is final. 38 U.S.C.A. §§ 7105(a), (b)(1),(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2000). Once an RO decision becomes final under 38 U.S.C.A. § 7105(a) (West 1991), absent the submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000); Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). The Board must review all evidence submitted since the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). The veteran's claim for service connection may, however, be reopened provided the veteran submits new and material evidence. The issue of whether evidence is "new and material" is analyzed under 38 C.F.R. § 3.156(a) (2000). Reviewing a final decision based on new and material evidence is potentially a several step process. See Elkins v. West, 12 Vet. App. 209, 214-19 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). First, the Board must determine whether the evidence submitted since the prior decision is new and material, which will be discussed below. If "the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). If new and material evidence has been presented, the claim is reopened and it must be determined whether VA's duty to assist has been fulfilled. If so, the Board may evaluate the merits of the claim. See Winters v. West, 12 Vet. App. 203, 206-7 (1999); Winters v. Gober, rev'd on other grounds, No. 99-7108 (Fed. Cir. July 2000). New and material evidence means evidence previously not 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 to decide fairly the merits of the claim. 38 C.F.R. § 3.156 (2000); see also Hodge, supra. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The relevant evidence that was of record at the time of the RO's September 1953 denial included the veteran's service medical and personnel records and VA hospital records from August 1953. The service medical records, including the separation examination, were negative for any evidence of a low back disability. The separation qualification record reflected that the veteran served as a military policeman and that he performed patrol work and guard duty on a motorcycle, traveling over 50,000 miles. The VA hospital discharge summary from August 1953 indicated that the veteran had been treated for unrelated disorders and made no reference to a low back disability. The additional pertinent evidence that has been associated with the veteran's claims file since the RO's September 1953 denial consists of 1944 Daily Sick Reports from the veteran's unit, letters written by the veteran during active service, September 1965 and July 1988 records from Community Memorial Hospital, February 1992 VA outpatient records, a June 1992 letter from the veteran's wife, a December 1992 letter from a private therapist, an April 1994 personal hearing transcript, a November 1998 letter from Robert M. Penor, M.D., and a February 2001 report from Craig N. Bash, M.D. The Daily Sick Reports of the 1918th Ordnance Ammunition Company documented that the veteran received medical treatment several times throughout April, May, July, and August 1944. The Reports did not identify the injury or illness for which the veteran received medical care. In August 1993, the veteran submitted letters he had written to his wife during active duty. In these letters, he referred to being disqualified from paratrooper training due to a strain. The September 1965 records from Community Memorial Hospital reflect that the veteran was admitted to the hospital with a herniated lumbar disc. The July 1988 records from Community Memorial Hospital disclose that the veteran presented to the emergency room due to being thrown to the ground and rendered unconscious by stampeding cattle. He was diagnosed with multiple rib fractures and mild pulmonary contusions. An x- ray of the cervical spine showed marked arthritic changes. The February 1992 VA medical records reflect that the veteran complained of a bad back for some time, with constant pain in the lumbosacral region and radiation into the right leg. He reported injuring his back in a motorcycle accident while on active duty, as well as subsequent injuries due to pushing a car and being knocked over by cows. Objective findings included unequal deep tendon reflexes of the lower extremities, somewhat depressed right knee and ankle jerk, 70 degrees of flexion at the hip and waist, and tenderness over the right sacroiliac area. The veteran was diagnosed with chronic back pain and chronic lumbosacral radiculopathy on the right. In a June 1992 letter, the veteran's wife wrote that he had informed her of his back injury when he returned from active service. Since that time, he had experienced back pain and had undergone medical treatment since 1965. His back pain limited his daily activities and his employment as a rancher. The December 1992 letter from the private therapist stated that the records of Chadron Community Hospital had been destroyed but he remembered treating the veteran for back, neck, and shoulder pain from 1967 to 1970. The veteran appeared at a hearing before the undersigned in April 1994. He testified that he volunteered for active duty and that he later volunteered to serve with the paratroopers. However, he was disqualified from paratrooper duty due to a back strain. Thereafter, he was assigned to motorcycle duty and had to wear a kidney belt to support his back. His back pain had continued since that time. He claimed that he did not report the existence of the back pain on his separation examination because he did not want to delay his discharge. After returning from service, he could no longer play sports and he began to receive medical treatment in approximately 1966. In his November 1998 letter, Dr. Penor wrote that he first saw the veteran in 1965 for pain of the lumbar region that radiated down the right leg. Thereafter, he saw the veteran in 1968, 1977, and 1998. Dr. Penor's impression was that the veteran suffered from low back pain with moderate degenerative arthritis of the lumbosacral spine with subsequent radicular pain secondary to the degenerative disease in the lumbar spine. He stated that the veteran's back disability may well be related to service but recommended an MRI of the lumbosacral spine for clarification. In his report, Dr. Bash stated that he reviewed the veteran's claims file and he identified the medical references he used in support of his reasoning. He did not examine the veteran because it was within the standard of care for neuro- radiologists to make diagnostic and causation determinations based upon the type of information provided in the claims file. Dr. Bash opined that the veteran's current lumbar spine pathology was a direct result of the in-service spine injury. He stated that it was clear from the record that the veteran had a normal spine on entrance into service, that he injured his spine during service, and that he had chronic symptoms since that time. The radiological findings, chronic symptoms, and clinical symptoms were consistent with a long- standing progressive spine process which was initiated by the in-service injury. The herniated disc in 1965 was also a likely part of the progressive process that was initiated by the in-service injuries. Dr. Bash stated that it was well known that injuries to the spine early in life often led to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability. He opined that the veteran's in-service injury weakened his spine and ligaments and placed him at increased risk for the 1965 disc herniation and subsequently led to the advanced degenerative arthritis. In considering the recently submitted evidence in conjunction with the previous evidence, the Board concludes that the recently submitted evidence is new and material and must be considered in order to decide the merits of the veteran's claim. Prior to September 1953, the record contained no evidence of a current low back disability. Since that time, the evidence clearly shows that the veteran has suffered from a chronic low back disability for many years. Medical evidence reflects that the veteran began to receive treatment in approximately 1965 and the veteran's wife confirmed the effects of the veteran's disability. Notably, the opinion of Dr. Bash relates the veteran's current low back disability to an injury sustained during the veteran's period of active service. Accordingly, the veteran has submitted sufficiently new and material evidence to require that his claim be reopened and undergo further development. To the extent that the veteran has presented new and material evidence, the benefit sought on appeal is granted. ORDER As new and material evidence has been submitted, the claim of entitlement to service connection for a low back disability is reopened. REMAND Given the Board's decision that new and material evidence has been submitted, additional action by the RO is required prior to further Board review. A veteran is entitled to service connection for a disability resulting from disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (2000). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2000). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2000). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2000). In relation to the present appeal, the veteran has claimed that he sustained a back injury while lifting antipersonnel bombs from trucks and that he incurred additional back injury due to a motorcycle accident in service. He has provided no description of the motorcycle accident. The service medical records contain no relevant findings regarding the veteran's back; however, in letters to his wife, the veteran referred to a strain. The record contains no medical evidence of a back disability until approximately 20 years after the veteran's discharge from active service and initial treatment was for a herniated lumbar disc incurred in 1965. The opinion of Dr. Bash finds that the veteran's alleged in- service injury caused his subsequent disc herniation and his present back disability. During the pendency of this appeal, the provisions of 38 U.S.C.A. § 5107, which concern the VA's duty to assist the veteran with the development of facts pertinent to his claim, have been substantially revised. The prior provisions of 38 U.S.C.A. § 5107 required that the VA assist a veteran with the development of facts pertinent to a "well-grounded" claim for benefits, whereas the revised version of this statute contains no such requirement and instead requires more generally that the VA assist a veteran with the facts pertinent to his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No 106-475, 114 Stat. 2096 (2000). Changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and his representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. In the present case, the Board observes that the veteran has not been afforded a VA examination since February 1992 and that this examination did not include an opinion as to the etiology of the low back disability. Under the recently enacted legislation, VA examinations and opinions are required if certain criteria are met. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as amended at 38 U.S.C. § 5103A). Given these amended statutory provisions regarding assistance to the veteran and the absence of a medical examination report regarding current diagnosis and relationship to service, the Board is of the opinion that it may not properly proceed with appellate review until additional development has been accomplished. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should request that the veteran identify all sources of medical treatment received for his low back disability, and that he furnish signed authorizations for release to the VA of private medical records in connection with each non-VA medical source he identifies. Copies of the medical records from all sources he identifies, and not currently of record, should then be requested and associated with the claims folder. The RO should document all reasonable efforts to obtain such records. 2. Thereafter, the veteran should be scheduled for an appropriate VA specialty examination in connection with his service connection claim. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should review the service medical records and the opinions of all private physicians, particularly the report of Dr. Bash. All clinical and special test findings should be reported. The examiner should clearly report the nature, extent, and etiology of any current back disorder. As to any such disability which is diagnosed, the examiner should offer an opinion as to the relationship, if any, to the veteran's military service. In particular, the examiner should address whether it is at least as likely as not that any current low back disability was caused by, or aggravated by, the veteran's period of active service. The examiner should attempt to acquire a detailed history of the nature of the in- service injury. The examiner should also address the implications of the veteran's post-service back injuries. A complete rationale for any offered opinion with specific references to the record must be provided by the examiner. 3. The RO should review the claims files and undertake any other necessary action to comply with the new assistance to the veteran requirements under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as amended at 38 U.S.C. § 5103A). 4. After completion of the above, the RO should review the expanded record and determine whether service connection is warranted. If the benefit sought on appeal remains denied, the RO should furnish the veteran and his attorney with an appropriate supplemental statement of the case and afford them an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the Regional Office. Kutscherousky v. West, 12 Vet. App. 369 (1999). WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).