Citation NR: 9723081 Decision Date: 07/01/97 Archive Date: 07/15/97 DOCKET NO. 95-38 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. E. Sampson, Associate Counsel INTRODUCTION The veteran’s active military service extended from July 1967 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which found that the veteran had not submitted new and material evidence to reopen his claim for service connection for multiple sclerosis. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that new and material evidence has been submitted to reopen his claim for service connection for multiple sclerosis. He claims that evidence has been submitted to show that his multiple sclerosis was incurred in active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 a claim of entitlement to service connection for multiple sclerosis. FINDINGS OF FACT 1. The veteran’s claim for service connection for multiple sclerosis was denied in an August 1989 decision by the RO, which was confirmed in an April 1991 decision by the Board. 2. The basis of the Board’s April 1991 denial was that multiple sclerosis was not shown in active service and was not manifested to a compensable degree within the 7 year presumptive period following discharge. 3. New and material evidence submitted in support of the appellant’s claim includes a medical opinion by a private physician, dated April 1997, which states that the first manifestations of multiple sclerosis occurred in active service in July 1967. 4. The April 1997 medical opinion is found to be new and material and raises a reasonable possibility of changing the prior disposition. CONCLUSION OF LAW Evidence received since the March 1990 Board decision denying service connection for a nervous disorder is new and material, and the veteran’s claim for service connection for multiple sclerosis is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations In evaluating the appellant's current petition to reopen his claim to service connection for multiple sclerosis, the Board considers all evidence submitted by the appellant or obtained on his behalf since the last final denial in order to determine whether this claim must be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The Board may reopen and review a claim which has been previously denied only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996); Manio v. Derwinski, 1 Vet.App. 140 (1991). To determine whether new and material evidence has been presented or secured to reopen a claim, a two-step analysis must be conducted. Evans, at 283; Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). “First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material when ‘the credibility of the [new] evidence’ is presumed. . . . Second, if the evidence is new and material,” the claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Evans, at 283 (citations omitted); Justus v. Principi, 3 Vet.App. 510, 513 (1992); see Duran v. Brown, 7 Vet.App. 216, 220 (1994). The first step of the two-step analysis, i.e., determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material involves three questions: (1) whether the newly presented evidence is “new”; if so, (2) whether it is “material” in the sense of being relevant to and probative of the “issue at hand” in the case; and, if so, (3) whether it is “material” in the sense that, when viewed in the context of all the evidence, there is a reasonable possibility of changing the previous disallowance of the claim. Evidence is new when it was not of record at the time of the last final disallowance and not merely cumulative of other evidence that was then of record. Evans, slip op. at 13. Material evidence is (1) relevant to and probative of the “issue at hand” in the case and (2) of sufficient weight and significance that there is a reasonable possibility that, when viewed in context of all of the evidence of record, both old and new, the additional evidence will change the disposition of the claim. Vecina v. Brown, 6 Vet.App. 519, 522 (1994); Mintz v. Brown, 6 Vet.App. 277, 280 (1994); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (noting that material evidence is relevant to and probative of the “issue at hand”). Determining what the “issue at hand” in a case is depends on the evidence that was before the RO when it last denied the claim on the merits and the reasons for its denial. See Colvin, 1 Vet.App. at 174 (Material evidence is relevant to and probative of the issue at hand). In this regard, the Board notes that a claim for service connection for a disorder typically involves three “elements”: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal nexus between the current disability and the disease or injury incurred or aggravated in service. Evans, at 284; Caluza v. Brown, 7 Vet.App 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The specified basis for a final disallowance of a claim for service connection may have been, for example, that the evidence failed to show the existence of a current disability. The “issue at hand” for the purpose of reopening such a previously and finally disallowed claim is whether a current disability exists. Thus, in order to be “material” to such a claim, “new” evidence must be relevant to and probative of whether a current disability exists. New evidence need not be probative of all elements involved in the claim but need be probative only as to each element that was a specified basis for the last disallowance. Evans, at 284. Evidence probative of other elements of the claim which is already a part of the record, i.e., “old” evidence, need not be put forward again. Evans, at 284. Rather, “new” evidence which is “material,” in that it is probative of the issue or issues at hand in the case, then will be evaluated in the context of all the evidence of record, i.e., including “old” evidence, to determine whether the “new” evidence is also “material,” in that it raises a reasonable possibility of changing the outcome of the previous disallowance of the claim. The three questions involved in determining whether evidence is new and material are sequential questions and a negative answer to any one of them ends the inquiry, and the claim to reopen a previously and finally disallowed claim must be denied. Therefore, if the newly presented evidence is not “new”, the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if “new” evidence is not “material” in the sense that it is not relevant to and probative of the “issue at hand,” the claim to reopen fails on that basis and the inquiry ends. See Evans, at 286 (holding that “new” evidence was not relevant to and probative of a nexus between the claimed psychiatric disorder and an inservice injury or disease which was the “issue at hand” in the case, and therefore the “new” evidence was not “material” evidence and the inquiry ended, notwithstanding “old” evidence in the record pertaining to a nexus between the veteran’s psychiatric disorder and his military service). However, if both of the first two sequential questions involved in the analysis are answered in the affirmative, the third question must be considered and a determination must be made as to whether the “new” evidence is “material,” in the sense that, when viewed in the context of all the evidence, both old and new, there is a reasonable possibility of changing the outcome of the previous disallowance of the claim. See Nici v. Brown, 9 Vet.App. 494 (1996) (in which the Court found that newly presented evidence had probative value, but when viewed in the context of all the evidence of record there was no reasonable possibility that it could change the outcome of the case, and was therefore not material). If so, all three sequential questions involved in the first step of the Manio two-step analysis for reopening previously and finally disallowed claims have been answered in the affirmative and new and material evidence has been submitted. Therefore, in such a case, the first step of the Manio analysis is complete and the second step must be conducted, i.e., the claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Manio, 1 Vet.App. at 145. II. Factual Background. The veteran’s claim for service connection for multiple sclerosis was originally denied in an August 1989 decision by the RO. He appealed this decision, which was confirmed in an April 1991 Board decision. He attempted to reopen the claim in September 1991, submitting VA records of current treatment. The RO determined in a December 1993 rating decision that these records were not new because they duplicated evidence already submitted establishing the fact of his current diagnosis of multiple sclerosis. In November 1994, the veteran filed a Notice of Disagreement with the earlier decision, also submitting a letter from his physician, William G. Jennings, MD, dated November 1994. That letter discussed the possible origin of the veteran’s multiple sclerosis. Also submitted were additional VA records of medical treatment. The RO issued a rating decision in June 1995, apparently disregarding the letter from the veteran’s physician, and finding that the VA medical records were either duplicative of evidence already submitted, or irrelevant, and therefore not new and material to reopen the claim. In August 1995, following a letter from the veteran’s accredited representative about the evidence from Dr. Jennings which had been overlooked, the RO issued another rating decision. The RO determined that the opinion from Dr. Jennings was speculative concerning the origin of the veteran’s multiple sclerosis, and was therefore not new and material to reopen the claim. The Board notes that the last prior final denial of the veteran’s claim was the Board decision from April 1991. The basis for the Board’s denial was that the veteran’s multiple sclerosis was not shown in active service and was not manifested to a compensable degree within the seven year presumptive period following service. Accordingly, the issue at hand in this matter is whether the veteran had multiple sclerosis during service or within the seven year presumptive period following service. New evidence submitted or obtained since the last final decision by the Board in April 1991 consists of: (1) the veteran’s contentions presented in written statements to the RO and the Board, (2) medical treatment records from the VA Medical Center in Nashville, Tennessee, dating from June 1979 to March 1989, (3) a letter of medical opinion from William Jennings, MD, dated November 1994, and (4) a letter of medical opinion dated in April 1997 from Craig Bash, MD, a neuroradiologist associated with the Paralyzed Veterans of America. The Board notes that the letter from Dr. Bash was received within 90 days of notification of certification of appeal and transfer of the veteran’s file to the Board, and is therefore properly considered by the Board. 38 C.F.R. § 20.1304(a), (c)(1996). Dr. Bash, in this letter, states the following: This patient has clinical and radiographic evidence of [multiple sclerosis]. It is very likely that his first manifestation of [multiple sclerosis] occurred with a bout of intermittent optic neuritis, which is documented in his Naval medical record on July 1967. Please note this patient’s entry physical examination was normal. This additional evidence, unequivocally stating that the veteran’s multiple sclerosis likely had its origin in service, is relevant to and probative of the “issue at hand” in the case, specifically whether the veteran had multiple sclerosis during service or within the seven year presumptive period following service. Accordingly, the Board concludes that this evidence is new and material and therefore the claim is reopened. ORDER New and material evidence having been submitted to reopen a claim for entitlement to service connection for multiple sclerosis, the claim is reopened. REMAND Although the claim is now reopened, the Board finds that the case is not yet ready for final appellate review. The Board notes that the RO has not previously considered the medical opinion of the Dr. Bash, dated April 1997, as it relates to the appellant’s claim to reopen based on new and material evidence. There is no indication that prior consideration of this evidence by the RO was waived. In light of the above, the RO must adjudicate the veteran’s claim on the merits based on all of the evidence of record both old and new. Accordingly, the case in hereby REMANDED to the RO for the following development: The RO should adjudicate the claim on its merits, considering all of the evidence of record, both old and new and, if the result is not favorable to the appellant, he and his representative should be provided with a Supplemental Statement of the Case containing the law and regulations pertinent to his claim. Prior to its consideration of the merits of the case, the RO may wish to have the appellant undergo a VA examination by a neurologist to obtain an opinion from the examiner regarding whether the veteran’s multiple sclerosis more likely than not began in service, and specifically whether the inservice medical record referenced by Dr. Bash is evidence of a manifestation of multiple sclerosis in service. 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 Veterans Appeals 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 Supp. 1996) (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. 8.44-8.45 and 38.02-38.03. No further action by the appellant is required until he receives further notice. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1996). - 2 -