Citation Nr: 0631134 Decision Date: 10/04/06 Archive Date: 10/10/06 DOCKET NO. 04-27 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for lumbar and thoracic scoliosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Associate Counsel INTRODUCTION The veteran served on active duty from May 1975 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) from a March 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2003, a statement of the case was issued in June 2004, and a substantive appeal was received in August 2004. The veteran testified at a hearing before the RO in May 2004, and at a hearing before the Board in August 2006. The issue of entitlement to service connection for lumbar and thoracic scoliosis, on the merits, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any further action is required on his part. FINDINGS OF FACT 1. A March 1978 rating decision denied entitlement to service connection for lumbar and thoracic scoliosis; the veteran did not file a notice of disagreement. 2. In June 1999, the veteran filed a claim to reopen entitlement to service connection for lumbar and thoracic scoliosis. 3. Additional evidence received since the RO's March 1978 decision bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The March 1978 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received since the March 1978 denial, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision as it relates to the issue of whether new and material evidence has been received to reopen a claim of service connection for lumbar and thoracic scoliosis, no further discussion of VCAA is necessary at this point. Criteria & Analysis The Board notes here that it is not entirely clear whether the RO viewed the veteran's current claim as a claim to reopen or a de novo claim. Even if the RO determined that new and material evidence was received to reopen the claim, or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence means evidence not previously 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 in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the "benefit of the doubt doctrine" does not apply to the preliminary question as to whether new and material evidence has been received to reopen a claim. Martinez v. Brown, 6 Vet. App. 462 (1994). Further, as made clear in the new version of 38 C.F.R. § 3.156(a), in order to reopen a claim there must be new and material evidence presented or secured "since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." Evans v. Brown, 9 Vet. App. 273, 285 (1996), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In August 1977, the veteran filed a claim of service connection for lumbar and thoracic scoliosis. In a March 1978 rating decision, the veteran's claim was denied on the basis that the disability pre-existed service, and was not aggravated therein. The veteran did not initiate an appeal of that decision, therefore, the RO's March 1978 decision is final. 38 U.S.C.A. § 7105(c). In June 1999, the veteran filed a claim to reopen entitlement to service connection for lumbar and thoracic scoliosis. In a March 2002 rating decision, the RO denied the veteran's claim on the merits. Evidence of record at the time of the March 1978 denial consisted of service medical records. Evidence received since the March 1978 decision denying service connection is new and material. Specifically, since the prior denial, the veteran has testified on two occasions as to the symptomatology experienced during service, and details regarding the medical treatment he claims he obtained in service. See May 2004 and August 2006 Transcripts. Moreover, the veteran has obtained a favorable medical opinion from Craig N. Bash, M.D. The new evidence bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim of service connection. The claim, therefore, is reopened. 38 U.S.C.A. § 5108. The Board's decision is strictly limited to the reopening of the claim and does not address the merits of the underlying service connection claim. ORDER New and material evidence has been received to reopen the claim of service connection for lumbar and thoracic scoliosis. To this extent, the appeal is granted, subject to the directions set forth in the following remand section of this decision. REMAND Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Moreover, temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). For service connection to be warranted for a congenital or developmental defect, the evidence would have to show that a superimposed injury or disease during service aggravated the congenital/developmental defect. A February 1975 examination performed for enlistment purposes reflects a diagnosis of scoliosis, mild, although the Board notes that it appears the diagnosis was subsequently crossed out. The veteran underwent an orthopedic evaluation to assess the diagnosed scoliosis. The veteran complained of pain in the thoracic region of the back. He reported an onset of approximately 1973 when he fell off of a motorcycle. He denied receiving any treatment. The physical examination was normal, and the veteran was deemed qualified. The enlistment examination initially reflected that the veteran was deemed "not qualified for" service, however, such notation was crossed out and he was deemed "qualified for" enlistment in service. Service medical records are replete with complaints related to the lumbar and thoracic spine. In July 1977, the veteran underwent a Medical Board physical evaluation. A physical examination was within normal limits, except for scoliosis. The examiner diagnosed scoliosis, thoracic, lumbar. As a result, he was deemed unfit for duty, and was discharged effective September 1977. An examination performed for separation purposes in June 1977 reflects a diagnosis of congenital scoliosis. Current medical records reflect a diagnosis of degenerative disc disease of the lumbar spine. The veteran underwent a VA examination in March 2001 and the examiner appeared to render a negative opinion with regard to etiology, however, such opinion is unclear. In August 2004, Dr. Bash reviewed medical records supplied by the veteran, and opined that his current spine problems are due to his military service. In light of the conflicting opinions of record, the Board finds that another VA examination is necessary to determine the nature and etiology of his claimed back disability. The Board also notes that during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claim of service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. As these questions are involved in the present appeal, and in light of this matter being remanded for additional development, the RO is instructed to provide proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, and also include an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Accordingly, the case is REMANDED for the following actions: 1. Please send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the veteran for a VA examination by an orthopedist in order to determine the nature and etiology of any current back disability. It is imperative that the claims file be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. After reviewing the claims file, to include the service medical records and medical opinion from Craig N. Bash, M.D., and examining the veteran, the examiner should opine as to the following: (a) Clearly list all current back disabilities; (b) Is it at least as likely as not (a 50% or higher degree of probability) that any current back disability pre-existed service; (c) If applicable, did any pre-existing back disability undergo an increase in disability during service, and, if so, was the increase in disability due to the natural progress of the disease; (d) Is any current back disability a congenital or developmental defect; (e) If any such congenital or developmental defect is present, is it at least as likely as not (a 50% or higher degree of probability) that the veteran sustained a superimposed injury during service; (f) Is it is at least as likely as not (a 50% or higher degree of probability) that any current back disability was due to service or any incident therein. All opinions and conclusions expressed must be supported by a complete rationale in a report. If any opinion cannot be provided without resort to speculation, the examiner should so indicate. 3. After completion of the above, the RO should review the expanded record, and readjudicate the issue of entitlement to service connection for lumbar and thoracic scoliosis. If the claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be remanded to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs