Citation Nr: 0218021 Decision Date: 12/12/02 Archive Date: 12/18/02 DOCKET NO. 00-24 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from April 1972 to June 1974. Procedural history The veteran has sought entitlement to service connection for a low back disorder on numerous occasions. In a July 1998 decision, the Board of Veterans' Appeals (the Board) determined that new and material evidence had not been submitted to reopen the previously denied claim. In January 1999, the United States Court of Appeals for Veterans Claims (the Court) dismissed the veteran's appeal (No. 98-1793) due to lack of jurisdiction. In August 1999 the Board's Vice Chairman denied the veteran's motion for reconsideration of the July 1998 Board decision. In September 1999, the veteran requested that his claim be reopened. In an October 1999 decision the RO determined that new and material evidence had not been submitted. The veteran was notified of the October 1999 decision. He did not appeal, and that decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The veteran again claimed entitlement to service connection for a low back disorder in February 2000. In a May 2000 rating decision the RO determined that new and material evidence had not been submitted to reopen the previously denied claim. The veteran perfected an appeal of the May 2000 decision, and it is that appeal that is currently before the Board. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a back disorder in October 1999; the veteran did not appeal that determination. 2. The evidence submitted subsequent to the October 1999 decision is new, in that it is not cumulative and was not previously considered by decisionmakers. The evidence is also material because it bears directly and substantially on the issue on appeal, that being whether the veteran's back disorder is related to an in-service disease or injury, and it must be considered in order to fairly decide the merits of his claim. CONCLUSION OF LAW The October 1999 rating decision in which the RO denied entitlement to service connection for a back disorder is final. New and material evidence has been submitted, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks entitlement to service connection for a low back disability. In essence, he contends that his currently diagnosed low back disorder was caused by an injury he incurred in service. The relevant procedural history of this case has been recapitulated above. This appeal stems from a May 2000 RO decision which determined that new and material evidence had not been submitted which was sufficient to reopen the veteran's previously-denied claim. In the October 2000 statement of the case, the RO found that new and material evidence had been submitted, reopened the claim, and denied service connection for a back condition based on the substantive merits of the claim. Notwithstanding the fact that the RO ultimately reopened the claim, the Board must first review the matter of whether new and material evidence has been submitted. The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has held that the Board does not have jurisdiction to determine the substantive merits of a claim for service connection in the absence of an independent finding that new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). See also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts of the case. The VCAA On November 9, 2000 the President signed into law the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107]. The VCAA revises VA's obligations in two significant ways. First, VA has a duty to notify a claimant and his or her representative of any information and evidence necessary to substantiate and complete a claim for VA benefits. See 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002). Second, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate his or her claim. See 38 U.S.C.A. § 5103A (West Supp. 2002). The Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim. Holliday v. Principi, 14 Vet. App. 280 (2001). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Pertinent to the issue currently on appeal, however, the VCAA has left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceed to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA 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 38 U.S.C.A. § 5108. See 38 U.S.C. § 5103A(f). VA issued regulations to implement the VCAA in August 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." Duty to Assist, 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). The regulations governing reopening of previously and finally denied claims were revised effective the date of publication on August 29, 2001. These regulations redefine the duty to notify and to assist in applications to reopen previously and finally denied claims. As the instant claim to reopen was filed prior to August 29, 2001, the revised regulations specific to such claims are inapplicable to the instant appeal. Thus, it appears that the VCAA does not fully apply to claims, such as this, which involve finality of prior VA decisions and the matter of submission of new and material evidence. Furthermore, it is clear that certain of VA's implementing regulations do not apply to this case in its present posture. The Court has recently held, however, that 38 C.F.R. § 3.159(b), pertaining to VA's duty to notify claimants, includes claims to reopen. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice provisions found in the VCAA are therefore applicable to cases such as this in which the issue revolves around finality of decisions and the submission of new and material evidence. On receipt of a claim for benefits, including a request to reopen a previously denied claim, VA will notify the veteran of the evidence that is necessary to substantiate the claim. VA will also inform the veteran which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the veteran provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. at 187. The RO informed the veteran of the evidence needed to substantiate his claim in March 2000, in the context of the then applicable well grounded claim standard, by informing him that he had to submit medical evidence of a current disability, evidence of the incurrence or aggravation of a disease or injury during service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Although the VCAA eliminated the concept of a well grounded claim, the current evidentiary requirements are the same. See Hickson v. West, 11 Vet. App. 374 (1999). The difference is that in determining whether a claim was well grounded, VA presumed the evidence to be credible and could only consider the evidence that was favorable to the veteran. In determining whether a claim for service connection has been substantiated, VA must consider all the evidence of record and determine the probative value and weight of the evidence, after fulfilling the duty to assist. See Evans v. West, 12 Vet. App. 22 (1998). The RO also informed the veteran of the evidence needed to reopen his claim in May and June 2000 by informing him that he was required to submit new and material evidence. The RO informed him that new evidence was evidence that had not been previously considered, and that material evidence was evidence that related to the status of his back disorder during or shortly following his separation from service. The RO provided the veteran a statement of the case in October 2000 and a supplemental statement of the case in February 2002. In those documents the RO informed the veteran of the regulatory requirements for establishing service connection and the regulatory definition of new and material evidence, and provided the rationale for determining that the evidence then of record did not support the grant of service connection. The RO notified the veteran that his case was being sent to the Board, and informed him that any additional evidence that he had should be submitted to the Board. Most recently, in an October 8, 2002 letter the Board specifically informed the veteran, with a copy to his attorney, of the details of the VCAA. The Board informed the veteran of the evidence needed to establish service connection for his back disorder. The Board also informed the veteran that he was required to submit any evidence in his possession related to his claimed disability, and to provide information and authorizations for the release of medical records so that VA could obtain the medical evidence pertaining to his back on his behalf. As an alternative, he could obtain the relevant medical records and submit them to VA. The veteran's attorney responded in a letter dated November 7, 2002 that the veteran had no additional evidence to submit. The Board finds, therefore, that VA has sufficiently informed the veteran of the evidence needed to reopen his claim for service connection for a back disorder. With respect to VA's duty to assist, the VCAA provides that VA's duty to assist does not commence until new and material evidence has been submitted. 38 C.F.R. § 3.159(c). In short, the Board believes that the provisions of the VCAA, insofar as they apply to the current posture of this case, have been fulfilled. Relevant Law and Regulations Service connection - in general According to applicable law and regulations, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. Notwithstanding the lack of a diagnosis of a disability during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Finality/new and material evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2001); Knightly v. Brown, 6 Vet. App. 200 (1994). The evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous finding that new and material evidence had not been presented) will be evaluated, in the context of all the evidence of record. Evans v. Brown, 9 Vet. App. 273 (1996). Evidence is considered to be "new" if it was not previously submitted to agency decision makers and it is not cumulative or redundant. The evidence is "material" if it bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously considered, it is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156 (1999). New evidence may be found to be material if it provides "a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Elkins v. West, 12 Vet. App. 209, 214 (1999), rev'd on other grounds, 229 F.3d 1369 (Fed. Cir. 2000). The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a) (2002)]. The change in the law, however, pertains only to claims filed on or after August 29, 2001. Duty to Assist, 66 Fed. Reg. 45,620. Because the veteran's claim was initiated prior to August 2001, his claim will be adjudicated by applying the law previously in effect. 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 VA's statutory duty to assist the claimant in the development of the evidence has been fulfilled. 38 U.S.C.A. § 5108; Elkins, 12 Vet. App. at 214. In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369 (1999). Analysis Although the veteran's claim of entitlement to service connection for a low back disability had been denied on several occasions, for the purpose of determining that new and material evidence has been submitted, only evidence presented since the last final denial, this case the October 1999 rating decision, will be considered. See Evans v. Brown, 9 Vet. App. 273 (1996). The evidence submitted prior to the RO's October 1999 denial of service connection for a back disorder included the veteran's service medical records, statements from the veteran, his friends, and family members, as well as private and VA treatment records and the reports of VA examinations. The veteran has multiple statements and hearing testimony in which he reported having injured his back in 1972 by falling off an armored personnel carrier. He denied having sought any medical treatment for back problems during service, and his service medical records reflect no complaints or clinical findings pertaining to the back. He reported, however, that he had back pain since the 1972 injury. The statements from friends and family members indicate that he took medication for back pain following his separation from service, and that he drank heavily due to back pain. The medical records show that following his separation from service he worked in the coal mines for approximately 17 years, and that he was hospitalized in December 1989 due to incapacitating back pain. He then reported a three year history of back pain, which had increased in severity in the previous three to four weeks. On hospitalization diagnostic testing revealed Grade I spondylolisthesis with anterior displacement of the vertebral body of L5 on S1, and a partially calcified herniated disc projecting into the central and left lateral aspect of the anterior spinal canal at the L4-L5 level with compression of the thecal sac and posterior displacement of the left nerve root. He underwent a laminectomy in January 1990, and has continued to receive medical treatment for back pain since then. None of the medical evidence of record in October 1999 documented any complaints or clinical findings pertaining to the back prior to December 1989, and none of the medical evidence showed a relationship between the back disorder diagnosed in December 1989 and an injury or disease incurred in service. There must be new and material evidence as to each and every aspect of the claim which was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. Evans v. Brown, 9 Vet. App. 273 (1996) The evidence received subsequent to the October 1999 decision includes three medical reports from C.N.B., M.D. Dr. B. indicated that he had reviewed the veteran's medical history and lay statements. He provided the opinion that the currently diagnosed back disorder originated with the fall that the veteran suffered while in service. Because the medical evidence of record in October 1999 did not include any medical opinion regarding a relationship between the claimed in-service injury and the currently diagnosed back disorder, the Board finds that the medical opinion of Dr. B. and the VA physicians is new. The Board further finds that the evidence is material, in that it bears directly and substantially on the issue of whether the veteran's back disorder was incurred in service. See Elkins, 12 Vet. App. at 214 (new evidence may be found to be material if it provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability). For these reasons the Board has determined that new and material evidence has been submitted, and the claim of entitlement to service connection for a back disorder is reopened. The Board observes in passing that the RO also obtained medical opinions from two VA orthopedic surgeons in which those physicians indicated that there was no relationship between the currently diagnosed back disorder and the fall that the veteran claimed to have experienced in 1972. However, as explained above, the in evaluating whether new and material evidence, the Board is not permitted to weigh the evidence. Dr. B.'s opinion is presumed to be credible and alone is sufficient to reopen the claim. As discussed above, under the VCAA 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 claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A. Having found that new and material evidence has been submitted, VA must fulfill the duty to assist prior to considering the substantive merits of the claim for service connection. 38 C.F.R. § 3.159(c). The Board finds that additional development is warranted, and will be undertaken prior to the Board's adjudication of the veteran's claim on its merits. The Board additionally observes in passing that remand to the RO for readjudication is not necessary in this case. In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that before the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. In this case, above although the RO initially denied reopening the veteran's claim on a finding that new and material evidence had not been submitted it ultimately decided the claim on its merits without regard to the submission of new and material evidence. The veteran has not been prejudiced by any action of the RO, and further adjudication at the RO level is not necessary. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a back disorder is reopened. Barry F. Bohan 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.