Citation Nr: 0204446 Decision Date: 05/13/02 Archive Date: 05/17/02 DOCKET NO. 01-07 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. (The issue of entitlement to service connection for a low back disorder will be the subject of a later decision.) REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Bonnie A. Yoon, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to January 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought on appeal. The Board is undertaking additional development on the reopened claim of entitlement to service connection for a low back disorder pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,009, 3,105 (Jan. 23, 2002 (to be codified at 38 C.F.R. § 20.903).) After giving the notice and reviewing any response to the notice, the Board will prepare a separate decision addressing this issue. FINDINGS OF FACT 1. A Board decision dated in April 1996, later upheld by the United States Court of Appeals for Veterans Claims (then the United States Court of Veterans Appeals) (Court) denied service connection for a low back disorder. 2. The evidence associated with the claims file subsequent to the April 1996 Board decision is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. CONCLUSIONS OF LAW 1. The Board's April 1996 decision, which denied entitlement to service connection for a low back disorder, is final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & Supp. 2001); 38 C.F.R. §§ 20.1100, 20.1104 (2001). 2. New and material evidence has been presented to reopen the claim for service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 was enacted. This law sets forth requirements for notification and assisting a claimant in developing the facts pertinent to his or her claim. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). To the extent the new law and regulations apply to the issue currently before the Board, there is no prejudice to the appellant in proceeding with this appeal, as the appellant has been fully informed as to laws and regulations governing his claim, including the requirements to substantiate his claim, and there is no indication that there is additional evidence that should be obtained before proceeding with appellate review. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the Board addresses a matter not addressed by the RO, the Board must provide an adequate statement of reasons and bases as to why there is no prejudice to the appellant). As such, the Board will proceed with consideration of whether new and material evidence has been submitted to reopen the claim. The veteran essentially requests that the Board reopen his claim of entitlement to service connection for a low back disorder, noting that he has submitted new and material evidence not only sufficient to reopen his claim, but also sufficient to grant service connection. An April 1996 Board decision denied service connection for a low back disorder. The Board denied the claim in April 1996 on the basis that the veteran's preservice back injury did not increase in severity during service and his current back disorder was not related to military service. In an August 1998 memorandum decision, the Court affirmed the Board's April 1996 decision. The Board's April 1996 decision is final. 38 U.S.C.A. §§ 7103(a); 7104(a)(b) (West 1991 & Supp. 2000). However, a claim will be reopened if new and material evidence has been submitted since the last decision denying the claim on any basis. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. §§ 3.156(a), 20.1105 (2000); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996). New and material evidence means 1) evidence not previously submitted; 2) which bears directly and substantially upon the specific matter under consideration; 3) which is neither cumulative nor redundant; and 4) 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). For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence submitted since the April 1996 denial of the veteran's claim of entitlement to service connection for a low back disorder includes a statement from Craig Bash, M.D. dated in February 1998. Following a brief recitation of the veteran's history, Dr. Bash stated that it was his opinion that it was more likely than not that the veteran prior to service did have some type of trauma to his back which responded to treatment. He was asymptomatic at the time of his entrance examination in July 1968. Several times while in service, the veteran was treated for back problems aggravated by heavy lifting. The separation examination in October 1978 gives a clinical evaluation of an abnormal spine. Based on the evidence, it was Dr. Bash's opinion that the veteran had a normal spine at entrance and an abnormal spine at the time of his separation examination. The statements contained in the separation examination were felt to be consistent with the notion that the veteran was using medication for his back condition. The most logical course of events was that the veteran had recurrent lumbar strains due to heavy lifting while in service. With an abnormal discharge examination, the residuals of lumbar strain would have been the most correct diagnosis at the time of discharge. Dr. Bash also stated that it was more likely than not that the veteran, due to recurrent lumbar strains in service, developed a slowly progressive degenerative process, which resulted in increased symptomatology with additional strains. The veteran quickly developed accelerated degenerative arthritis. Dr. Bash's opinion was that the veteran's in-service injuries resulted in the development of the back pathology noted on the separation examination. A VA examination was conducted in April 2001. The veteran stated that he had injured his back while working at a bottling company in 1967. He then reinjured his back in 1968 while in basic training. He was out for one or two days and then returned to his group. Throughout the following years, the veteran reported having recurrent back problems, often due to picking up heavy equipment. Between 1984 and 1989 the veteran underwent five procedures to attempt to correct his back problems. A physical examination revealed an abnormal gait and an inability to walk without support. X-rays of the lumbar spine showed degenerative lumbar spine, severe lipping L3, 4, 5, diminished disc space at L4 and L5. The examiner stated that he would agree with the opinion of Dr. Bash that the veteran had a preexisting lower back strain which was probably aggravated while in service. The veteran was diagnosed with status post lumbar surgeries including discectomy and laminectomy and five procedures in 1980-1989; and marked weakness of the lower extremities secondary to radiculopathy leading to problems with ambulation and completely emptying his bladder. Upon examination of the evidence, the Board finds that the February 1998 statement from Dr. Bash is new and material evidence sufficient to reopen the veteran's claim of service connection for a low back disorder. The statement is the first evidence presented which provides a possible connection between the veteran's back condition and his work during service. As such, it constitutes new evidence. This evidence becomes particularly important to the veteran in proving that he sustained an in-service injury which eventually led to his current back problems. In this case, the veteran claims service connection for a low back disorder, so any evidence tending to show a connection between the veteran's present back condition and his service speaks to a material part of his claim, and must be considered material evidence. After reviewing the foregoing evidence, the Board finds that the veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for a low back disorder. The Board finds that this evidence is neither cumulative nor redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). As the Board finds Dr. Bash's statement to be new and material evidence, the claim is reopened and it need not consider whether any other item of evidence is new and material and sufficient to reopen the claim. Accordingly, the Board finds that the veteran has submitted new and material evidence, and the claim is reopened. ORDER New and material evidence has been submitted which is sufficient to reopen the claim of entitlement to service connection for a low back disorder and, to this extent, the appeal is granted. BARBARA B. COPELAND Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.