Citation Nr: 9914849 Decision Date: 05/26/99 Archive Date: 06/07/99 DOCKET NO. 97-27 145A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chronic low back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Associate Counsel INTRODUCTION The veteran served on active duty from September 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. FINDINGS OF FACT 1. The February 1990 Board decision, which denied the veteran's claim for entitlement to service connection for a chronic low back disorder, constitutes the last final disallowance of the veteran's claim. 2. The evidence received since the February 1990 Board decision is new and is so significant that it must be considered to fairly decide the merits of the claim. CONCLUSION OF LAW The evidence received subsequent to the February 1990 Board decision, in which service connection for a chronic low back disorder was denied, is new and material, and serves to reopen the veteran's claim. 38 U.S.C.A. §§ 1110, 5107(a), 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend, in essence, that entitlement to service connection for a chronic low back disorder is warranted. It is specifically asserted that the veteran did not have a low back disorder prior to his service enlistment and that he injured his back as a result of a fall, which occurred at the conclusion of his basic training. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (1998). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1998). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (1998). The evidence of record at the time of the Board's February 1990 decision, which constituted the last final denial of the veteran's claim, may be briefly summarized. No complaint or finding pertaining to a back disability or injury was noted upon medical examination at service enlistment in September 1970. An orthopedic clinic treatment record, dated in December 1970, shows that the veteran complained of low back pain. At that time it was reported that the veteran was involved in an automobile accident one year ago in which he was hospitalized with low back pain for 3 weeks. X-rays showed a transitional S1 vertebra with bilateral lumbarization. A clinical record dated in January 1971 contains a diagnosis of symptomatic transitional S1 vertebra, which was not incurred in the line of duty and which existed prior to service enlistment. It was noted that the veteran did not meet induction standards and it was recommended that he be presented to a medical board for consideration for separation. A medical board proceeding report, dated in January 1971, contains a diagnosis of symptomatic transitional S1 vertebra. The medical board determined that this disorder existed prior to service and was not aggravated by active duty. A letter submitted by a private physician in June 1972 indicated that the veteran was treated in July 1968 following an automobile accident for contusion of the head neck and shoulder. In August 1972, the Board denied the veteran's claim for service connection for a transitional S1 vertebra. The Board determined that the transitional S1 vertebra was a congenital defect and not a disability for which service connection could be granted. Subsequently received was a letter dated in August 1972, from a private hospital, indicates that the veteran was treated following an automobile accident in July 1968. The final diagnosis was contusion of the head and neck. The veteran was hospitalized at a VA facility in December 1974 for back strain incurred as a result of falling down stairs. Subsequent VA medical records, dated between 1975 and 1988, document treatment for various complaints involving the veteran's back. An October 1987 VA outpatient treatment record notes that the veteran indicated that he had undergone surgery in September 1987. A December 1987 VA examination report revealed that the veteran underwent a laminectomy in September 1987. A diagnosis of chronic low back pain with degenerative disc disease and radiculopathy. A February 1988 VA hospital summary includes a diagnosis of osteoarthritis of the lumbar spine. Also of record at the time of the February 1990 Board decision was a letter received in August 1988 submitted by the veteran's father in which he noted that the veteran was in good physical condition prior to his service enlistment but that, following his return from service, he consistently complained of back pain. The veteran's father also indicated that the veteran was, according to physician's, in good physical condition following his preservice automobile accident. The Board, by means of its February 1990 decision denied the veteran's claim for service connection for a chronic low back disorder. At that time the Board, in effect, found that the evidence added to the record since December 1972 was not new and material. The February 1990 Board decision is final. 38 U.S.C.A. § 7104. However, the veteran may reopen his claim by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1998). "New and material evidence" is defined at 38 C.F.R. § 3.156(a) (1998) as: [E]vidence 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. See Hodge v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998). The evidence received since the February 1990 Board decision includes transcripts from a hearing held at the RO in May 1998 and from a The veteran testified that he is afforded physical therapy at a VA hospital approximately twice a week. He also testified that following his back injury at the end of basic training he sought treatment during his period of advanced training about 3 to 4 weeks later. The veteran also testified that soon after his service separation he was given muscle relaxers and pain pills at a VA hospital. The veteran also stated that he had been informed that he needed another operation. He also testified that he had been receiving Social Security Administration (SSA) disability benefits since 1985. In conjunction with the hearing, the veteran submitted a private medical statement, dated in December 1998, from a neurologist, Dr. Bash. It is noted that the physician indicated that he had reviewed the veteran's claims folder. It is also noted that a comprehensive and detailed history concerning the veteran's back disorder is part of the statement. Dr. Bash rendered an opinion that the veteran had a congenital transitional S1 vertebra which was asymptomatic prior to his active service and that this condition was aggravated beyond normal during the veteran's service period to the point he was discharged due to symptomatic transitional vertebra. To summarize, the recently submitted medical statement by Dr. Bash contains an opinion that the veteran's preservice back disorder was aggravated by active service. The Board finds this opinion is probative to the issue and is so significant that it must be considered in order to fairly decide the merits of the claim. Thus, this evidence is new and material and the veteran's claim for service connection for a chronic low back disorder is reopened. ORDER New and material evidence having been received, the veteran's claim for service connection for a chronic low back disorder has been reopened. REMAND As indicated above, the Board has determined that new and material evidence has been received with regard to the veteran's claim for service connection for a chronic low back disorder. In so finding, the Board has determined that the veteran's claim for service connection is well pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to that claim. It is now incumbent upon the RO to review the entire evidentiary record, in accordance with the regulatory and statutory provisions that govern the adjudication of a reopened claim, prior to any further Board consideration of this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under 38 U.S.C.A. § 5107(a) (West 1991), VA's duty to assist specifically includes requesting information from other Federal departments or agencies, to include SSA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The evidence of record shows that the veteran has continued to experience back-related problems since his service separation, to include treatment at a VA facility. In addition, a private medical opinion supporting findings of aggravation of the veteran's back during service has also been submitted. Therefore, it is the opinion of the Board that a current VA examination should be conducted. During the December 1998 hearing, the veteran's representative indicated that the veteran was last examined at the VA Medical Center located in Montgomery, Alabama in January and June 1998, and that he was scheduled to be examined in January 1999. It is noted that reports of the above-mentioned VA examinations are not of record. It was also pointed out by the representative that the veteran had been provided a TENS unit and heating pad for his back; the veteran noted that these had been received in 1971. Accordingly, the case is REMANDED to the RO for the following development: 1. The veteran should be furnished the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to treatment for low back disorders since his release from active duty, to include the approximate dates he was treated at the VA medical facility in Montgomery, Alabama. The RO should then obtain all records, which are not on file. It is requested that RO notify the veteran that he may submit additional evidence and argument in support of his claim. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). Such evidence may include lay statements from fellow service members who witnessed his fall at the conclusion of basic training. 2. The RO should request the VA medical facility in Montgomery, Alabama to provide copies of all treatment records as set for the by the veteran, to include 1971, the September and December 1987 hospital summaries, and all current records. 3. The RO should take the appropriate action to obtain copies of the pertinent decision by the SSA and the evidence on which that decision was based. 4. Thereafter, VA examinations by a board consisting of an orthopedist and neurologist should be conducted to determine the nature, extent, and etiology of any low back disorder. All indicated tests should be conducted. The claims folder and a copy of this Remand should be furnished to the examiners for review in conjunction with the examinations. Following the examinations and in conjunction with a review of the claims folder and this Remand, to include the report submitted by Dr. Bash, it is requested that the examiners correlate their findings and render opinions as to the following questions: a) Is the transitional S1 vertebra diagnosed in service a congenital or developmental abnormality? b) Whether it is as likely as not that any low back disorder diagnosed is related to veteran's period of active service? c) If it is determined that any current low back disorder was present at the time of the veteran's entry into active duty, whether it is as least as likely as not that the preservice low back disorder underwent a chronic increase in severity beyond normal progression during the veteran's period of active service? A complete rational for any opinions expressed must be included in the examination report. 5. When the requested development is fully completed, the RO should re- adjudicate the veteran's claim for service connection on a de novo basis. If the benefit sought is not granted, the veteran and his representative should be furnished with a Supplemental Statement of the Case, to include the pertinent law and regulations regarding service connection, and opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. ROBERT P. REGAN Member, Board of Veterans' Appeals