Citation Nr: 0323990	
Decision Date: 09/15/03    Archive Date: 09/23/03

DOCKET NO.  99-12 140A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in No. Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been presented 
sufficient to reopen a claim for entitlement to service 
connection for a back disorder, and if the claim is reopened, 
whether service connection is warranted.

2.  Entitlement to a total disability rating based on 
individual unemployability due to the veteran's service-
connected disabilities.


REPRESENTATION

Appellant represented by:	K. Lieberman, Attorney at Law


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The veteran served on active duty from October 1943 to April 
1946.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 1998 RO decision which, in 
pertinent part, determined that new and material evidence had 
not been presented to reopen a claim of entitlement to 
service connection for a back disability.  The veteran timely 
filed an appeal of this issue.

In October 1998, the RO denied a claim of entitlement to a 
total disability evaluation based on individual 
unemployability (TDIU).  Thereafter, the veteran timely filed 
an appeal of this issue.

In December 2000, the Board remanded this case for additional 
evidentiary development.  In July 2002, the Board issued a 
decision which concluded that new and material evidence had 
not been presented to reopen a claim of entitlement to 
service connection for a back disability, and denied the 
veteran's claim for TDIU.

The veteran then appealed to the United States Court of 
Appeals for Veterans Claims (Court).  A February 2003 joint 
motion of the parties (the veteran and the VA Secretary) 
requested that the Board decision be vacated and remanded for 
additional action.  A February 2003 Court order granted the 
joint motion, and the case was returned to the Board.

The veteran's claim for TDIU, which is intertwined with the 
remaining issue on appeal, will be addressed in the Remand 
portion of this decision.


FINDINGS OF FACT

1.  Service connection for a back disability was denied by 
the Board in January 1998.  The veteran did not request 
reconsideration of that decision nor did he appeal the 
Board's action.  Hence, that decision became final.

2.  Evidence associated with the record since the Board's 
January 1998 rating decision is so significant that it must 
be considered along with all the evidence of record in order 
to fairly decide the merits of the claim.


CONCLUSION OF LAW

New and material evidence has been submitted since the 
January 1998 Board decision, and the claim for service 
connection for back disorder is reopened.  38 U.S.C.A. 
§§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran in this case is seeking to reopen his claim for 
service connection for a back disorder.  

New and material evidence means evidence not previously 
submitted to agency decision makers that 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 in order to fairly 
decide the merits of the claim.  38 C.F.R. § 3.156(a) (2002).  
Reopening the claim no longer requires a reasonable 
possibility that the new evidence, when viewed in the context 
of all the evidence, both new and old, would change the 
outcome.  Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998) 
(expressly rejecting the standard for determining whether new 
and material evidence had been submitted sufficient to reopen 
a claim as set forth in Colvin v. Derwinski, 1 Vet. App. 171 
(1991)).  In determining whether evidence is new and 
material, the credibility of the new evidence is to be 
presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The United States Court of Appeals for Veterans Claims, 
hereinafter the Court, has clarified that, with respect to 
the issue of materiality, the newly presented evidence need 
not be probative of all the elements required to award the 
claim as in this case dealing with a claim for service 
connection.  Evans v. Brown, 9 Vet. App. 273 (1996).  
However, it is the specified bases for the final disallowance 
that must be considered in determining whether the newly 
submitted evidence is probative.  Id.  Such evidence must 
tend to prove the merits of the claim as to each essential 
element that was a specified basis for that last final 
disallowance of the claim.  Id.  

"Generally, to prove service connection, a claimant must 
submit (1) medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances lay testimony, 
of in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus between the 
current disability and the in-service disease or injury." 
See Pond v. West, 12 Vet. App. 341, 346 (1999); see also Rose 
v. West, 11 Vet. App. 169, 171 (1998).  

The Board observes that the last final denial of the 
veteran's claim for service connection for a back disorder 
was the Board's January 1998 decision.  The basis for this 
decision was that the veteran had failed to submit evidence 
of a nexus between his current back disability and his 
military service or his service-connected disability.

After reviewing all of the additional evidence received 
herein since the Board's January 1998 decision and concludes 
that there is evidence both new and material as it relates to 
the issue at hand and, therefore, the claim is reopened.  In 
particular, the veteran has recently submitted a medical 
opinion, dated in July 2003, from C. Bash, M.D., which 
concludes that the veteran's current degenerative changes of 
the lumbar spine are a direct result of his inservice back 
injuries.   

This medical opinion is clearly "new" evidence, because it 
was not previously before Board at the time of its January 
1998 decision.  Moreover, the Board finds this new evidence 
to also be "material" in that it is "so significant that 
it must be considered in order to fairly decide the merits of 
the claim."  Accordingly, without considering whether the 
evidence will change the outcome of the claim and presuming 
its credibility, the Board concludes that new and material 
evidence sufficient to reopen the claim for service 
connection for a back disorder has been submitted.  Thus, the 
Board reopens the claim for service connection for a back 
disorder, and remands the claim below for further development 
noted below.


ORDER

New and material evidence having been submitted, the 
veteran's claim for entitlement to service connection for a 
back disorder is reopened; to this extent, the appeal is 
granted.


REMAND

As noted above, the Board has reopened the veteran's claim 
for service connection for a back disorder.  In as much as 
his claim for TDIU is intertwined with the final outcome on 
that issue, it must be remanded herein as well.

The February 2003 joint motion, which was granted by the 
Court, suggested that the VA did not properly satisfy its 
duty to notify the veteran with regard to evidence and 
information necessary to substantiate his claims, including 
what portion he is to provide and what portion the VA is to 
provide.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In view of the foregoing, the case is remanded for the 
following:

1.  The RO should ask the veteran to 
identify all sources of VA and non-VA 
treatment for his back disorder from the 
time of his separation from active 
service in April 1946 to the present.  
After securing necessary releases, the RO 
should obtain copies of the related 
medical records, which are not presently 
contained in the claims file.  

2.  The RO should send the veteran 
written notice concerning the evidence 
and information necessary to substantiate 
his claims, including which portion he is 
to provide and which portion the VA will 
attempt to obtain on his behalf.  

3.  Thereafter, the RO should have the 
veteran undergo a VA orthopedic and 
neurological examination to express an 
opinion regarding the etiology of the 
veteran's current back disorder, 
diagnosed as degenerative changes of the 
lumbar spine.  A copy of the notice to 
report for examination should be placed 
in the claims folder.  The claims folder 
must be made available to and reviewed by 
the examining physician in conjunction 
with the examination.  All signs and 
symptoms should be reported in detail. 

Based on examination findings, review of 
historical records, and medical 
principles, the doctor should provide a 
medical opinion, with full rationale, as 
to the likely date of onset of the 
veteran's degenerative changes of the 
lumbar spine, and whether this condition 
is secondary to the already service-
connected residuals of cyst, teratoma.

4.  After assuring that there has been 
compliance with the notice and duty to 
assist requirements of the law, the RO 
should adjudicate the issue of service 
connection for a back disorder on its 
merits, and thereafter, readjudicate the 
veteran's intertwined claim for a TDIU.  
If any benefit remains denied, the RO 
should issue a supplemental statement of 
the case to the veteran and his 
representative, and they should be given 
an opportunity to respond, before the 
case is returned to the Board.

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 2002) (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. 8.43 and 38.02.


	                     
______________________________________________
	M. W. GREENSTREET
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
(RS) 
 
4597
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1
CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
JUN 
2003 
(RS) 
 
4597
Page 
2