BVA9509702 
DOCKET NO.  92-20 510     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Whether new and material evidence has been presented to
reopen the claim of entitlement to service connection for
disabilities of the cervical and thoracic spine to include
arthritis and Scheuermann's disease.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,
Inc.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

S. L. Kennedy, Counsel

INTRODUCTION

The veteran served on active duty from September 1966 to
September 1969 and from August 1970 to November 1974.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from an August 1990 rating decision of the
Department of Veterans Affairs (VA), St. Petersburg, Florida,
Regional Office (RO) which denied, in pertinent part, the
veteran's request to reopen the claim of entitlement to
service connection for a disability of the dorsal spine.  A
notice of disagreement with the denial of service connection
for a "neck/dorsal spine condition" was received in August
1991.  A statement of the case on the issue of whether new
and material evidence has been submitted to reopen the claim
of service connection for arthritis of the neck, and
Scheuermann's disease of the dorsal spine with fracture of T-
8, was issued in December 1991.  A substantive appeal was
received in February 1992.

In January 1994, the Board remanded the case to the RO for
additional development.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that not only has sufficient evidence
been submitted to reopen the claim for service connection for
disability of the cervical and dorsal spine, but that
sufficient evidence has been submitted to grant the benefit
sought on appeal.  He maintains that he sustained an injury
to his spine in service and that the T-8 compression fracture
and arthritis of the spine currently shown are the result of
this injury.  He asserts that the original diagnosis of
Scheuermann's disease was inaccurate as the medical evidence
indicates that he actually sustained a compression fracture
with resulting traumatic arthritis of the cervical and
thoracic spine.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that new and material evidence has been
submitted to reopen the claim of entitlement to service
connection for disabilities of the cervical and thoracic
spine to include arthritis and Scheuermann's disease.

FINDINGS OF FACT

1.  In a March 1970 rating decision, a regional office denied
service connection for arthritis of the spine and neck, and
service connection for Scheuermann's disease.  The veteran
was apprised of his procedural and appellate rights; however,
he did not appeal this determination within the applicable
one-year time period.

2.  In support of the request to reopen the claim for service
connection for disabilities of the cervical and thoracic
spine, the veteran has advance new contentions and submitted
evidence which includes a January 1970 medical entry
describing a compression fracture at T-8 and moderate
degenerative changes of the thoracic spine.

3.  Some of the recently submitted evidence which has been
received and reviewed since March 1970 is not redundant and
cumulative, is relevant and probative, and presents a
reasonable possibility that the outcome could be changed
based on a review of all of the evidence of record.

CONCLUSIONS OF LAW

1.  The March 1970 decision of the regional office denying
service connection for arthritis of the spine and neck, and
Scheuermann's disease is final.  38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. § 3.104 (1994).

2.  New and material evidence has been submitted since the
March 1970 rating decision, and the claim for service
connection for disabilities of the cervical spine and
thoracic spine is reopened.  38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As noted above, the veteran served on active duty from
September 1966 to September 1969 and from August 1970 to
November 1974.  The record reflects that pursuant to a VA
administrative decision of April 1975, the period of active
duty from August 1970 to November 1974 was found to be
dishonorable for purposes of VA benefits; however, the record
also reflects that the character of the veteran's discharge
for the period August 1970 to November 1974 was subsequently
upgraded by the service department.  The Board notes that the
record is clear that effective from February 20, 1976, the
veteran's period of service from August 1970 to November 1974
was determined to be honorable.

The record reflects that during the time period between the
two relevant periods of military service, the veteran filed a
claim for service connection for disabilities of the neck and
spine.  Although service connection was granted for a
disability of the lumbar spine, in a March 1970 rating
decision, a regional office denied service connection for
disabilities of the cervical and thoracic spines, and
specifically, arthritis of the neck and spine as well as
Scheuermann's disease.  The veteran did not timely appeal
this decision, however, and the decision, thus, became a
final decision as to the veteran's first period of active
duty from September 1966 to September 1969.

However, as noted in the Board's January 1994 remand, a
regional office failed in 1981 and 1982, and more recently in
connection with the current claim, to consider the veteran's
claim for service connection for disabilities of the cervical
and thoracic spine for the second period of service, now
deemed honorable, on a de novo basis.  The Board emphasizes
that the March 1970 prior rating decision cannot be
considered a final decision as to the veteran's second period
of service, and therefore, the laws and regulations governing
the reopening of claims cannot be considered applicable to
the veteran's second period of service from August 1970 to
November 1974.

The Board notes for the record that there are two separate
and distinct issues in this case which must be accorded
independent consideration by the RO.  First, consideration
must be given to the issue of whether new and material
evidence has been presented to reopen the claim of service
connection for disabilities of the cervical and thoracic
spine as it relates to the veteran's first period of service.
Second, consideration must be given to the issue of service
connection for disabilities of the cervical and thoracic
spine on a de novo basis as it relates to the veteran's
second period of service.

From the Board's review of this case, it appears that despite
the January 1994 remand, the second issue has not been
properly addressed by the RO.  As such, the Board finds that
the issue of service connection for as disabilities of the
cervical and thoracic spine with regard to the period of
active duty from August 1970 to November 1974 has still not
been adequately addressed by the RO such as would enable the
Board to properly address it on appeal.  That issue, is thus,
the subject of a remand decision appended to this decision.
However, the Board does find that sufficient evidence has
been permitted to reopen the claim of entitlement to service
connection for disabilities of the cervical and thoracic
spine as it relates to the period of service from September
1966 to September 1969, although, as will be discussed below,
the case must also be remanded to the RO for additional
development on this issue.  Thus, the following discussion
and decision will be confined to the issue of whether new and
material evidence has been presented to reopen the claim of
entitlement to service connection for disabilities of the
cervical and thoracic spine as to the veteran's first period
of service.

The United States Court of Veterans Appeals (Court), in a
case unrelated to the present appeal, has stated that in
determining whether new and material evidence has been
submitted to reopen a claim, it is necessary to consider all
evidence added to the record since the last final denial
based on the entire record, not merely the evidence added to
the record subsequent to the last refusal to reopen the
claim.  Glynn v. Brown, 6 Vet.App. 523 (1994).  In this
regard, a last final denial based on the entire record was
the decision rendered by the regional office in March 1970,
and thus, the Board's inquiry regarding the submission of new
and material evidence will commence from that date.

Under the applicable legal criteria, the March 1970 rating
decision is final, and it cannot be modified unless evidence
presented in support of the claim is both "new and material"
and warrants revision of the previous decision.  38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994).  "New
and material" evidence means evidence not previously
submitted to the RO 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) (1994).

Moreover, the Court, in another unrelated case, has
established a two-step analysis which must be applied in
cases in which a claimant seeks to reopen a claim which has
become final.  First, there must be a determination as to
whether there is new and material evidence to reopen the
claim.  If there is such evidence, the claim must be reviewed
on the basis of all of the evidence, both new and old.  A
decision regarding either step is appealable.  Manio v.
Derwinski, 1 Vet.App. 140 (1991).  Further, "new" evidence
must be more than merely cumulative of other evidence of
record, and "material" evidence must be relevant and
probative of the issue under consideration, and present a
reasonable possibility that the new evidence when viewed in
the context of all of the evidence, new and old, would change
the outcome.  Colvin v. Derwinski, 1 Vet.App. 171 (1991).

Finally, the Court has also stated that in determining
whether evidence is new and material, the credibility of the
new evidence is, preliminarily, to be presumed.  If the
additional evidence considered presents a reasonable
possibility of changing the outcome, then the claim is
reopened.  Then, the ultimate credibility or weight to be
accorded such evidence must be determined as a question of
fact.  Justus v. Principi, 3 Vet.App. 510 (1992).

The evidence of record and considered by a regional office at
the time of the March 1970 rating decision consisted of
service medical records, and reports of VA examinations
conducted between December 1969 and February 1970.  It
appears from the March 1970 rating decision, that service
medical records included the veteran's entrance examination
which was reported to have been negative for any pertinent
abnormality.  Available service medical records also included
a September 1967 entry which indicated that the veteran was
seen with complaints of low back and left shoulder pain after
being pushed into a bunker.  The diagnostic impression was
muscular pain.

These records also reflect that on separation physical
examination in September 1969, the veteran was afforded an
orthopedic consultation because of complaints of pain in the
upper dorsal spine, and pain and stiffness primarily on the
right side of the neck since the above-referenced injury.  He
also reported some intermittent discomfort in the left low
back and buttock but gave no history of injury to that area.
The diagnosis following examination and radiographic studies
was cervical strain and hypertrophic arthritis of the dorsal
spine with kyphosis.  The veteran's was given a "3" physical
profile for the upper body and was determined not to be
qualified for reenlistment.

The veteran filed a claim for service connection for
arthritis of the spine and neck in October 1969.  In
connection with this claim, the veteran was given a VA
examination which was conducted between December 1969 and
February 1970.  At that time, the examiner indicated that no
disease of the cervical spine had been found on examination;
arthritis of the cervical spine was not found on x-ray;
however, the examiner also reported that he suspected that
dorsal kyphosis found on examination was due to juvenile
epiphysitis and he recommended x-rays.  Subsequently taken x-
rays of the thoracic spine reportedly showed wedging of the
lower vertebrae about the level of T7 to T12 which the
examiner thought represented juvenile epiphysitis
(Scheuermann's disease) and which the examiner also indicated
had existed prior to service; he expressed a medical opinion
that the Scheuermann's disease was not related to injury in
service.  It was noted that these findings confirmed the
changes noted during the veteran's military service.

On the basis on the above-described evidence, the RO, in the
March 1970 rating decision, determined that Scheuermann's
disease which was shown on VA examination, was developmental
in nature, and thus, not a disability under the law for which
service connection would be appropriate.  It was noted
further, that examination of the cervical spine was normal,
and that arthritis was not found on x-ray.  While service
connection was granted for lumbosacral strain, the regional
office denied service connection for arthritis of the spine
and neck.

In connection with the recent request to reopen the claim of
entitlement to service connection for disabilities of the
cervical and thoracic spine, numerous documents have been
added to the record.  These records include additional and
duplicative service medical records, VA medical records dated
from January 1970 through November 1993; private medical
records, hearing testimony provided by the veteran; and
several lay statements.  The RO determined that none of the
recently presented evidence was new and material in that
arthritis of the cervical spine was not shown, that
Scheuermann's disease of the dorsal spine was a
constitutional or developmental abnormality, and that
evidence of a fracture at the T-8 level was not shown until
February 1981, years after service.  However, that Board
finds that a careful review of the some of the evidence in
this case yields a different analysis.

In this regard, the Board notes that it is clear that none of
the duplicative records may be considered new and material as
this evidence is cumulative of evidence previously considered
by the veteran.  The Board has carefully reviewed the lay
statements submitted by the veteran regarding lay
observations of the veteran's activity level prior to
induction in 1966.  However, while these statements may be
considered new, they are not relevant to the issue on appeal.
There is no dispute that disability of the neck or spine was
not noted on induction examination.  As these statements are
not relevant and material to the issue under consideration,
they may not be considered material.

With respect to the veteran's testimony and some of the
recently submitted medical evidence, the Board finds that the
evidence warrants a different conclusion.  Essentially, the
veteran indicated that he did not understand why he was
service-connected for a low back disability when he had, in
fact, injured his cervical and thoracic spine in the bunker
incident.  He indicated that he also did not think that the
diagnosis of Scheuermann's disease was accurate in that he
was told he had a compression fracture at T-8.  He indicated
that even if that diagnosis was correct, that he also
sustained a separate injury to the same area as manifested by
the presence of the compression fracture.

Support for the veteran's recent contentions may be found in
the extensive medical evidence added to the record since
March 1970.  These records include, in pertinent part, a
January 1970 VA medical record in which the veteran
complained of pain in the dorsal spine and lower back as well
as a constant cracking sound on the neck area which he
related to a 1968 injury which had occurred in service.
Reported findings at the time included a finding of a
compression fracture at T-8 and moderate degenerative changes
on the lower thoracic spine.  Despite the contrary findings
on VA examination in 1969-70, the January 1970 findings of a
compression fracture at T-8 as well as the finding of
degenerative changes of the dorsal spine are corroborated in
numerous post-service medical records.  This evidence must
also be considered in light of the finding on September 1969
orthopedic consultation of hypertrophic arthritis of the
dorsal spine.  Moreover, the veteran's statement of the
possibility of coexisting disabilities of the dorsal spine is
confirmed in a July 1980 radiographic report which reported
old Scheuermann's disease as well as a possible T-8
compression fracture, and a July 1980 VA progress note that
the veteran had old Scheuermann's disease, degenerative
changes of the dorsal spine, and possible traumatic mild
compression of T-8 body due to the inservice injury.

The Board finds that regardless of the weight that is
eventually accorded this additional medical evidence upon a
de novo review, it must be conceded that this evidence is not
only new, but also relevant and probative of the issue under
consideration.  The Board finds that this evidence is also
the type of evidence that presents a reasonable possibility
of changing the outcome of this case.  Accordingly, the Board
concludes that the veteran's claim of entitlement to service
connection for disabilities of the cervical and thoracic
spine is reopened.

ORDER

The claim for service connection for disabilities of the
cervical and thoracic spine is reopened, and, to this extent
only, the appeal is granted.

REMAND

Pursuant to the above decision, the Board has determined that
new and material evidence has been submitted to reopen the
veteran's claim of entitlement to service connection for
disabilities of the cervical and thoracic spine.  In light of
the Board's decision, the entire record must be reviewed.
Upon a review of the record in this case, the Board has
determined that additional development is warranted by the RO
prior to further appellate review.  Moreover, the Board has
determined that a remand is in order in this case in order to
safeguard the veteran's procedural due process right to notice
of the need to submit evidence or argument, and to provide him
an opportunity to submit such evidence or argument.  See
Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993).

As has been note in the above decision, in Manio v. Derwinski,
the Court has established a two-step analysis in cases which
the claimant seeks to reopen a claim that has become final.
The first step, which has been decided in the above decision,
is to determine whether there is new and material evidence to
reopen the claim.  The second step, for which this case is now
remanded, is to review the claim in light of all the evidence,
both old and new, and to determine whether the evidence
warrants a revision of the former decision.  In addressing
this matter, the RO must make a determination on the question
of fact as to the ultimate credibility or weight to be given
the evidence which forms the basis of the finding that new and
material evidence had been submitted.  Justus.

As outlined in the above decision, the RO has not properly
addressed the issue of service connection for disabilities of
the cervical and thoracic spine as it relates to the veteran's
second period of service from August 1970 to November 1974.
As noted above and indicated in the January 1994 remand, this
issue is not subject to the laws and regulations governing the
reopening of claims, since the only prior final decision was
rendered prior to this period of military service.  On remand,
the RO must address this service connection issue on a de novo
basis with consideration of all applicable laws and
regulations.  As requested in the January 1970 remand, the RO
must consider the applicability of the VA Adjudication
Procedure Manual, M21-1, Part VI, chap. XV, para. 7.59(f)(1)
(Mar. 17, 1992), with regard to both periods of service.
Moreover, with regard to the veteran's second period of
service and, if appropriate, the RO should consider the laws
and regulations governing aggravation.

The Board notes, further, that in addition to the development
outlined above, further development of the evidentiary record
is necessary.  Fulfillment of the VA statutory duty to assist
the veteran necessarily includes that procurement of all
available service records as well as the procurement and
consideration of any relevant or other medical records.
Ferraro v. Derwinski, 1 Vet.App. 326 (1991).  In the January
1994 remand, the RO was directed to procure, in pertinent
part, all service administrative/personnel records from both
periods of service as the veteran indicated that before he was
able to reenlist in 1970, he had to sign a waiver regarding
his spinal disorder at the Armed Forces Examining and Entrance
Station in Buffalo, New York.  While the record contains some
of the veteran's service personnel records, it does not appear
that a specific request has been made for the enlistment
record referenced herein.

Moreover, it appears from a DA Form 20 (Enlisted Qualification
Record) that the veteran's August 1970 place of entry into
active duty was in Baltimore, Maryland; further, this document
appears to indicate that the veteran's physical status with
regard to the neck and back was normal as of August 1970.
Although the veteran has testified that he had to undergo a
consultation because of disabilities associated with his neck
and back prior to reenlistment, the report of physical
examination prior to his enlistment is not of record.  The RO
should ensure that all service personnel and medical records
are associated with the assembled records.

The Board also notes that the January 1994 remand requested
that the RO secure, in pertinent part, VA medical records of
the veteran from the VA Medical Center (VAMC) in Buffalo, New
York, from approximately 1969 to 1988.  Although the Buffalo
VAMC responded in April 1994, that all records were
transferred to Orlando in July 1991 and all requests for
records were sent to Orlando in August 1992, the veteran has
submitted directly to the RO incomplete medical records from
the Buffalo VAMC dated in January 1970.  With the veteran's
assistance, the RO should attempt to locate the remainder of
these medical records and include them with the appellate
record.

In view of the foregoing, and in order to fully and fairly
adjudicate the veteran's claim, the case is REMANDED to the RO
for the following action:

1.  The RO should make a specific request
to the custodian of the veteran's service
records for information regarding the
veteran's reenlistment in the Armed
Forces in August 1970 and particularly
the waiver regarding physical disability
purportedly signed by the veteran at the
Armed Forces Examining and Entrance
Station in Buffalo, New York prior to his
second period of service and any report
of examination conducted in connection
with this reenlistment.  Information that
the veteran's entrance into active duty
was at the Armed Forces Examining and
Entrance Station in Baltimore, Maryland,
should be provided as it may assist in a
search for the relevant documents.

2.  The RO should request all pertinent
medical records of the veteran from the
Buffalo, New York, VAMC dated from
January 1970 through the present.  In
connection with this request, the RO
should review the April 1994 response
from that facility, which included an
indication that the Buffalo records may
have been transferred to the VA medical
facility in Orlando, Florida.

3.  The RO should request that the
veteran submit copies of all medical
records in his possession, not previously
submitted, relating to treatment received
by him at the Buffalo, New York, VAMC,
and particularly those dated beginning in
January 1970.

4.  The RO should consider the veteran's
claim for service connection for
disabilities of the cervical and thoracic
spine to include arthritis, Scheuermann's
disease of the dorsal spine, and
residuals of T-8 compression fracture as
it relates to the veteran's first period
of service.  The RO should make a factual
determination as to the ultimate
credibility or weight to be given to the
evidence which was the basis for
reopening the claim.  The RO must address
the veteran's contention regarding the
applicability of the VA Adjudication
Procedure Manual, M21-1, Part VI, chap.
XV, para. 7.59(f)(1) (Mar. 17, 1992).

5.  The RO should consider the veteran's
claim for service connection for
disabilities of the cervical and thoracic
spine to include arthritis, Scheuermann's
disease of the dorsal spine, and
residuals of T-8 compression fracture as
it relates to the veteran's second period
of active duty on a de novo basis.  The
RO must address the veteran's contention
regarding the applicability of the VA
Adjudication Procedure Manual, M21-1,
Part VI, chap. XV, para. 7.59(f)(1) (Mar.
17, 1992).  If appropriate, the RO must
consider the laws and regulations
governing aggravation with respect to
this period of service.  Any indicated
development to aid in a resolution of
this claim, to include a VA examination,
should be completed.  A separate formal
rating decision must be made on this
issue, and the veteran must be provided
notice of this determination and
information regarding his appellate and
procedural rights.

6.  If the determinations remain adverse
to the veteran, he and his representative
should be provided a supplemental
statement of the case which addresses all
issues for which a notice of disagreement
has been received, and which includes a
summary of the additional evidence
submitted, citations of applicable laws
and regulations, and the reasons for the
decision.  The veteran and his
representative should be afforded an
opportunity to respond thereto.

The case should be returned to the Board for further
appellate review on the issues currently in appellate status
as well as any issue placed in appellate status during the
course of this REMAND.  The purpose of this REMAND is to
afford the appellant due process of law.  The Board intimates
no opinion, either factual or legal, as to the ultimate
conclusion warranted in this case.

          E. M. KRENZER
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b)
(1994).