Citation Nr: 9903378
Decision Date: 02/05/99	Archive Date: 06/24/99

DOCKET NO. 93-15 926               DATE 

On appeal from the Department of Veterans Affairs Regional Office
in Winston-Salem, North Carolina

THE ISSUE

Whether new and material evidence has been submitted to reopen a
claim of entitlement to service connection for residuals of an
injury sustained in an automobile accident in July 1972.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America, Inc.

ATTORNEY FOR THE BOARD

James L. March, Counsel 

INTRODUCTION

The veteran served on active duty from March 1967 to January 1970.
This matter comes before the Board of Veterans' Appeals (Board)
from an April 1993 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In May 1995, the Board found that new and material evidence had not
been submitted to reopen the veteran's claim of entitlement to
service connection for residuals of an injury sustained in an
automobile accident in July 1972. The veteran appealed to the
United States Court of Veterans Appeals (Court). In a February 1997
order, the Court granted a joint motion for remand, vacating the
Board decision and remanding for additional proceedings.

In December 1998 written argument, the veteran's representative
averred that there was a pending claim of "entitlement to service
connection for residual of a cervicobrachial syndrome." This is
referred to the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that physicians' statements submitted in
support of the instant appeal represent new and material evidence
sufficient to reopen his claim. The veteran alleges that the
residual disability he sustained in an automobile accident in July
1972 was due in part to his service-connected T2 fracture.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), 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 to reopen the veteran's claim of
entitlement to service

connection for residuals of an injury sustained in an automobile
accident in July 1972 has been received.

FINDINGS OF FACT

1. In December 1976, the Board denied entitlement to service
connection for the residuals of an injury sustained in an
automobile accident in July 1972.

2. In August 1978, the Board again denied service connection in a
reconsideration decision.

3. A second adverse Board reconsideration decision was issued in
June 1979.

4. Evidence added to the record since the Board's June 1979
reconsideration decision, including statements of the veteran and
his representative, as well as private medical records, is not
cumulative or redundant, is relevant and probative, and is so
significant that it must be considered in order to fairly decide
the merits of the claim.

CONCLUSION OF LAW

Evidence received since the June 1979 Board reconsideration
decision denying service connection for residuals of an injury
sustained in an automobile accident in July 1972 is new and
material, and the veteran's claim is reopened. 38 U.S.C.A. 5107,
5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. 3.156(a) (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In December 1976, the Board denied the veteran's claim of
entitlement to service connection for the residuals of an injury
sustained in an automobile accident in July 1972. In August 1978,
the Board again denied service connection in a

reconsideration decision. A second adverse Board reconsideration
decision was issued in June 1979.

Except as provided in 38 U.S.C.A. 5108, when a claim is disallowed
by the Board, a claim upon the same factual basis may not be
considered. 38 U.S.C.A. 7104(b). If new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review the
former disposition of the claim. 38 U.S.C.A. 5108; Manio v.
Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence
means evidence not previously submitted to agency decision makers,
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 the 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).

The Court summarized the analysis in determining whether evidence
is new and material in Evans v. Brown, 9 Vet. App. 273 (1996). VA
must first determine whether the newly presented evidence is "new,"
that is, not of record at the time of the last final disallowance
of the claim and not merely cumulative of other evidence that was
then of record. If new, the evidence must be "probative" of the
issues at hand. There is, however, no longer a requirement that, in
order to reopen a claim, the new evidence, when viewed in the
context of all the evidence, both new and old, must create a
reasonable possibility that the outcome of the case on the merits
would be changed. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)
(expressly rejecting the standard for determining whether new and
material evidence had been submitting sufficient to reopen a claim
set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). Finally,
for the purpose of determining whether a case should be reopened,
the credibility of the evidence added to the record is to be
presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Facts

The evidence of record at the time of the Board's June 1979
reconsideration decision included the veteran's service medical
records, VA and private medical

records, and statements of the veteran and other lay persons. In
addition, the Board considered an opinion from an independent
medical expert--a neurologist.

Service medical records show that, in December 1968, the veteran
was involved in an automobile accident. An x-ray report dated
December 23, 1968, indicates that the veteran had a fracture
through the body of the second thoracic vertebra. A January 3,
1969, x-ray report again revealed a serpentine-type fracture
extending through the body of T2. There was some narrowing of the
intervertebral disc space between T2 and T3, and the posterior
processes of the vertebrae were intact. It was noted that the
fracture was essentially unchanged since the previous examination.
A third x-ray study was done on February 27, 1969. It was reported
that the previously described fracture through the body of T2 was
still well seen and unchanged.

In March 1969, Glenn A. Meyer, M.D., examined the veteran and
reviewed the x-ray studies. He noted that the x-rays revealed a
bony deficit at T2 which appeared to involve the laminar arch. He
opined that it probably represented a bony defect of undetermined
etiology. Dr. Meyer noted that the films had been reviewed with a
Colonel Kempe who agreed with his impression. He stated, "Our
feeling is that this boney [sic] defect was not necessarily
associated with the resent [sic] auto accident."

In January 1970, the veteran was placed on the Temporary Disability
Retired List (TDRL) as 50 percent disabled. His August 1971 Medical
Board examination report indicates that he had cervicobrachial
syndrome. Effective from March 3 1, 1972, the veteran was found fit
for duty and removed from the TDRL.

In July 1972, the veteran was involved in another automobile
accident in which he sustained a fractional dislocation of the C7
and TI vertebrae, with quadriplegia. He underwent a foraminotomy of
C6-C7 and C7-TI on the right side, with bilateral posterior
cervical fusion. The veteran contended that his in-service T2
fracture was a direct predisposing factor in the extensive damage
suffered in the July 1972 accident.

In a December 1974 letter, John F. Brix, M.D., the Keesler Air
Force Base attending physician following the 1972 accident, stated
that it was "well within the realm of probability that the initial
injury in 1968 was a contributing factor to the type of injury and
neurologic damage sustained in the second accident."

In addition, in a February 1974 statement, M.S. Mahaley, Jr., M.D.,
of the Division of Neurosurgery of Duke University Medical Center,
indicated that it was "conceivable that [the T2 fracture] may have
played some role in the susceptibility of the area just cephalad to
that region to trauma at the time of his last accident."

In July 1977, Dr. Brix submitted a second letter. He stated that he
strongly disagreed with the determination of VA in denying the
existence of a relationship between the T2 fracture and the
injuries in the July 1972 accident. He noted that the location of
the veteran's fractures, C7-T I, was rather unusual. He also noted
that at the time of the surgical exploration in July 1972, visual
inspection showed evidence of considerable damage throughout the
lower cervical and upper thoracic area. He opined,

[T]he injury in 1968 was a direct predisposing factor in the
extensive damage suffered in the second accident in 1972. The
earlier injury with associated bone and soft tissue damage would
most likely have caused additional loss of flexibility of the
entire spine, thus [the veteran's] second injury was more damaging
than might have ordinarily been expected because of these previous
factors. Therefore, I feel that the second injury is related to the
initial injury of 1968 and, thus, should be considered as service
connected.

In a March 1978 letter, Kenneth R. Magee, M.D., professor of
neurology at the University of Michigan Medical School, stated that
he had reviewed the veteran's records, including Dr. Brix's
findings. He opined that, "with reasonable medical certainty," the
veteran's 1968 injury did not predispose him to the severe damage
sustained in 1972.

Based on this evidence, in the June 1979 reconsideration decision,
the Board denied entitlement to service connection for residuals of
injury sustained in an automobile accident in July 1972. The Board
noted that the evidence did not establish that the veteran's
service-connected disability played any significant role, much less
a proximate causal role, in causing the injuries sustained in the
July 1972 accident.

The evidence received subsequent to the June 1979 reconsideration
decision includes statements of the veteran and his representative
and private medical records. Of particular interest are letters
from three private physicians.

In an August 1991 letter, Malcolm Shupeck, M.D., a neurosurgeon,
noted that the type of injury that the veteran had, with fracture
subluxation at C7-T I, was very unusual. He opined that the earlier
upper thoracic spine injury was likely to have provided a substrate
for this more severe injury to have ultimately developed.

Charles T. Beemer, M.D., a private orthopedic surgeon stated that
he concurred with Drs. Brix and Mahaley that the veteran's second
injury might well have been predisposed to by the first injury and
the resulting loss of motion at the T2-T3 level.

A July 1997 letter was received from Craig N. Bash, M.D., a
neuroradiologist and assistant professor of radiology at the
Uniformed Services University of Health Sciences. Dr. Bash stated
that he disagreed with the opinion of Dr. Magee and agreed with the
opinions of all the other physicians. He pointed out that Dr.
Magee, as a neurologist, would not have had the experience or
training to address this issue. He stated that these types of
patients are usually followed by neurosurgeons or orthopedists, in
consultation with neuroradiologists.

The Board solicited an opinion from an independent medical expert.
The specialist was asked whether, following a review of the
veteran's claims folder, it was at least as likely as not that the
veteran's in-service T2 fracture was a predisposing factor in the
nature and extent of damage sustained in the post-service accident.
In an October 1998 letter, Peter W. Carmel, M.D., a Professor and
Chief at the New Jersey Medical School, Department of Surgery,
Center for Neurological Surgery,

indicated that he had reviewed the veteran's records. He noted that
if the veteran had had a fracture of the second thoracic vertebra
and if, following the fracture he had a T2-T3 fusion, then it was
remotely possible that stiffening of the spine in the region could
have predisposed the veteran to an increased fulcrum of movement at
C7-T I in the subsequent automobile accident. He noted, however,
that there were several factors that made such an interpretation
unlikely.

First, the initial x-ray report ... indicates that the T2-T3 disc
interspace was narrowed. This could only have happened with a
condition that pre-existed the 1968 accident.

Second, the thoracic spine is highly stable due both to its joint
configuration and support from rib heads, and it is unlikely that
even the fracture described in [the radiologist's] initial report
could have resulted in an abnormal fusion. This impression is
reinforced by an early review of these x-rays carried out by Dr.
Glen Myer [sic] on February 17, 1969. This report says "review of
x-rays reveals a bony deficit at T2 which appears to me to involve
the laminar arch which represents a bony defect of undetermined
etiology. The films were reviewed with Colonel Kempe who agrees
with this impression. Our feeling is that this bony defect was not
necessarily associated with the recent auto accident.["]

Dr. Carmel noted that Drs. Meyer and Kempe were internationally
recognized neurosurgeons, known for their expertise in spinal
disorders. He stated that "[i]f the abnormalities seen at the T2
level on these x-rays were not related to the recent auto accident,
then it is very likely that they were congenital in origin." Dr.
Carmel concluded that "[t]he subsequent terrible injury at the C7-T
I level cannot reasonably be ascribed to the T2 radiological
defect."

In December 1998, the Board received another medical opinion from
Dr. Bash. Again, he reviewed the record, including the opinion of
Dr. Carmel. He concluded that the whip-lash-type injury the veteran
had in service in 1968, predisposed the veteran to the to the
cervicobrachial syndrome noted on the separation examination. In
addition, he opined that the in-service injury was the likely
causative factor and increased his risk of having a more severe
unusual cervical spine injury in the post- service accident.

Analysis

Where second or third medical opinions are involved, the Board must
make a case- by-case determination as to whether each opinion
constitutes new and material evidence. Paller v. Principi, 3 Vet.
App. 535, 538 (1992). In Paller, a medical opinion submitted by the
appellant that independently came to the same conclusion as one
that had been previously considered by the Board was found to be
corroborative, rather than cumulative. "[I]n a situation such as is
presented here, where there is an apparent split in scientific
opinion, corroboration is particularly important and cannot be
rejected as merely cumulative." Id. In the instant case, the
recently submitted physicians' opinions, with the exception of Dr.
Carmel's, reached the same medical conclusions as Drs. Brix and
Mahaley. They determined that a relationship likely existed between
the veteran's 1968 and 1972 injuries. In this case, as in Paller,
the Board finds that the new medical evidence is corroborative of
the prior medical evidence. As such, the Board finds that the
evidence is so significant that it must be considered in order to
fairly decide the merits of the claim. That is, the evidence is new
and material. Having determined that new and material evidence has
been added to the record, the veteran's claim for service
connection for residuals of an injury sustained in an automobile
accident in July 1972 is reopened.


ORDER

As new and material evidence has been received to reopen the claim
for service connection for residuals of an injury sustained in an
automobile accident in July 1972, the appeal is granted subject to
further action as discussed hereinbelow.

REMAND

As noted above, in July 1997 and December 1998, the veteran's
representative submitted medical opinions of Craig N. Bash, M.D. RO
review of this additional evidence was not waived by the veteran.
38 C.F.R. 20.1304(c). Indeed, in July 1997, the veteran's
representative specifically stated that it did not waive RO
consideration of Dr. Bash's opinion. Accordingly, the Board finds
that the case must be remanded for initial consideration of the new
medical evidence prior to final appellate handling by the Board. 38
C.F.R. 19.37 (1998); Sutton v. Brown, 9 Vet. App. 553 (1996). To
the extent that the Board may have erred in considering the
opinions of Dr. Bash in the new and material evidence analysis
above, such error would be harmless, because the veteran was not
prejudiced by the decision. See Bernard v. Brown, 4 Vet. App. 384
(1993).

Furthermore, in light of the Board's decision above, this case must
be remanded for a de novo review by the RO. Bernard v. Brown, 4
Vet. App. 384; Sutton v. Brown, 9 Vet. App. 553. In light of the
foregoing, the Board is remanding the case for the following
action:

1. The RO should provide the veteran an opportunity to submit
additional argument and evidence in support of his claim.

2. After undertaking any additional indicated development, the RO
should adjudicate on a de novo basis the reopened claim of
entitlement to service connection for residuals of an injury
sustained in an

automobile accident in July 1972. The RO must consider all evidence
of record.

If the benefit sought on appeal is not granted to the veteran's
satisfaction, he and his representative should be issued a
Supplemental Statement of the Case and be afforded an opportunity
to reply. Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order.

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. 1998) (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.

STEVEN L. KELLER Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1998), 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) (1997).

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