Citation Nr: 1007164 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-22 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral arm disability. 3. Entitlement to service connection for a bilateral leg disability. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before a Decision Review Officer at the RO in January 2007 and at a hearing before the Board in July 2008. The decision below includes an order reopening a previously denied claim of service connection for a low back disability. The underlying claim of service connection for a low back disability and the issues of entitlement to service connection for bilateral arm and leg disabilities are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Service connection for a low back disability was denied by September 1976 and October 1976 rating decisions. The Veteran did not appeal those denials. 2. The evidence received since the October 1976 rating decision is new and raises a reasonable possibility of substantiating the underlying claim of service connection for a low back disability. CONCLUSION OF LAW New and material evidence sufficient to reopen a previously denied claim of service connection for a low back disability has been received. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran originally submitted a claim of entitlement to service connection for a back disability in May 1976. The claim was denied by the RO in September 1976. Notice of the denial and notice of appellate rights were presumably provided that same month. The Veteran subsequently submitted an additional medical statement and the denial was confirmed in an October 1976 decision. The Veteran did not initiate an appeal and the RO's decision consequently became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). As a result, service connection for a low back disability may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A claim of entitlement to service connection for a back disability was last denied in an October 1976 decision. The evidence of record at the time of the October 1976 rating decision consisted of the Veteran's service medical records, an August 1976 VA examination, and statements from R. Singley, D.C., dated in November 1971, May 1976, and October 1976. Service medical records reveal that the Veteran was referred for an orthopedic consultation for a painful back. X-rays of the lumbar spine were noted to be negative and no orthopedic abnormality was noted. The Veteran was found fit for duty. The Veteran was subsequently treated for complaints of low back pain on numerous occasions in service. X-rays of the low back obtained in August 1971 revealed no significant abnormality. The Veteran's January 1972 discharge examination noted that the Veteran had a back injury which existed prior to service. An August 1976 VA examination revealed a diagnosis of subjective backache with no objective evidence of pathology. X-rays of the lumbar spine obtained at the VA examination and dating back to 1974 were reported to be normal. In the November 1971 letter, Dr. Singley indicated that the Veteran was involved in two serious accidents, one in August 1968 and one in February 1969, which resulted in injuries to the Veteran's lumbar ligaments and right sacroiliac, with ligament damage to the dorsal and lumbosacral spines. In the May 1976 letter, Dr. Singley reported that the Veteran was involved in two serious accidents prior to entering active military service which limited his ability to deal with stress. His condition was reported to have deteriorated during his training period. Dr. Singley indicated that the Veteran suffered recurring pains in the sacroiliac and lumbar spine. Finally, in the October 1976 letter, Dr. Singley reported that the Veteran sustained ligament damage in his lumbosacral spine following an accident in August 1968 and a severe strained sacroiliac ligament on the left side following a February 1969 accident. Dr. Singley indicated that the severity of the ligament damage sustained in the accidents indicated that he was in no condition to be in the Armed Services. The Veteran's claim of service connection for a back disability was denied in a September 1976 rating decision and confirmed in an October 1976 rating decision. The basis of the denial was that although there was a record of complaints prior to, during, and after service, there was no evidence to support findings of any disability of the spine. The Veteran submitted a claim to reopen his claim for service connection for a low back disability in January 2006. Evidence received since the September 1976 rating decision consists of private treatment reports from Baptist Memorial Hospital; T. Windham, M.D.; T. Rizk, M.D.; The Rehab Group; W. Lamar, M.D., E. Lowe, Jr., M.D.; Dr. P. Schildkneycht; a statement of the Veteran's medical conditions from M. Burnett, CFNP; VA outpatient treatment reports dated from May 1995 to June 1997; VA examination reports dated in July 1995, August 1995, August 1998, July 1999, January 2000, and August 2000; a disability determination from the Social Security Administration dated in December 2000; and hearing transcripts dated in April 2000, January 2007, and July 2008. Because the evidence received since October 1976 rating decision was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the newly received evidence constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156. The RO determined in 1976 that there was no evidence to support findings of any disability of the spine. Since the prior denial, the Veteran has submitted treatment records which indicate he has been diagnosed with osteoarthritis and spondylosis of the lumbar spine and lumbar strain. Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim. Thus, as new and material evidence has been received, this claim is reopened. To that extent only, the claim is allowed. ORDER The claim of entitlement to service connection for a low back disability is reopened. To that extent only, the appeal is granted. REMAND A review of the claims file reveals that a remand in necessary before a decision on the merits of the claims of service connection for a low back disability, a bilateral arm disability, and a bilateral leg disability can be reached. The Veteran claims that he incurred injuries to his back, arms, and legs in service. The medical evidence of record reveals current diagnoses of osteoarthritis and spondylosis of the spine and polymyalgia of the elbows, wrists, hands, knees, and ankles. He indicated that he continues to suffer from the same disabilities of the spine, arms, and legs which he incurred in service. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. 38 C.F.R. § 3.304(b) (2009); 38 U.S.C.A. § 1111 (West 2002). In this case, the Veteran's spine was evaluated as normal at entry to service and no back disability was noted. Scars of the legs and hand were noted. However, a January 1971 service medical report notes that the Veteran had been hit in the back in the summer of 1968, prior to entering service. The Veteran complained of back pain numerous times during service. He was eventually separated after nine months and 13 days of service. His separation examination notes that he had a back injury that existed prior to service. In addition, the evidence shows that the Veteran has suffered work-related back injuries after separating from service. Therefore, the Board finds that a medical opinion is needed to determine whether any current back disability is related to his service. In addition, a medical opinion is needed to determine whether any back disability preexisted service, and if so, whether it was aggravated during that service. The Veteran has not been afforded a VA examination to assess the likelihood that his current low back disability and disabilities of the arms and legs are related to service. In light of the his reported in-service complaints, his statements regarding continuity of symptomatology, and the current diagnoses of record, the Board finds that a VA examination is necessary to decide the appeal. 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination for his disabilities of the low back, arms, and legs. Any indicated tests should be accomplished, including x-rays. The examiner should obtain a detailed history of the Veteran's symptoms and injuries. The examiner should review the claims file and state in the report that the file was reviewed. A complete rationale for all opinions should be provided. The examiner should provide the following opinions: (a) Diagnose all disabilities of the low back, arms, and legs. (b) Is it is at least as likely as not (50 percent or greater probability) that any disabilities of the low back, arms, and legs are related to the Veteran's military service and his complaints and treatment during service? (c) Is there clear and unmistakable evidence that the Veteran had a back disability prior to his entrance to service? (d) If so, is it at least as likely as not (50 percent or greater probability) that any pre-existing back disability was aggravated (permanently increased in severity beyond the natural progress of the condition) during his service. 2. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran is advised that failure to appear for an examination could adversely affect his claims, to include denial of the claims. 38 C.F.R. § 3.655 (2009). The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs