Citation Nr: 0508281	
Decision Date: 03/21/05    Archive Date: 03/30/05

DOCKET NO.  99-04 229A	)	DATE
	)
	)

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


THE ISSUE

Whether new and material evidence has been presented to 
reopen a claim of entitlement to service connection for a 
back disorder.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney-at-Law


WITNESS AT HEARING ON APPEAL

Dr. C. N. Bash


ATTORNEY FOR THE BOARD

A.D. Jackson, Counsel


INTRODUCTION

The veteran had active military service from August 1956 to 
January 1958.

This appeal to the Board of Veterans' Appeals (Board) arises 
from an April 1998 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida, wherein the RO denied the veteran's application to 
reopen his claim of entitlement to service connection for a 
back disorder.

The merits of the claim of entitlement to service connection 
for a back disability are addressed in the REMAND portion of 
the decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, D.C.

In April 2003, the Board denied the veteran's application to 
reopen his claim for service connection for a low back 
disorder.  In October 2003, the United States Court of 
Appeals for Veterans Claims (CAVC) vacated the decision and 
remanded the issue back to the Board for further action 
consistent with the VA Secretary's unopposed motion for 
remand. 


FINDINGS OF FACT

1.  The veteran did not file a notice of disagreement to the 
March 1997 RO denial of his application to reopen a claim for 
service connection for a back disorder.  

2.  The evidence submitted since the March 1997 rating is so 
significant that it must be considered in order to fairly 
decide the merits of these claim.


CONCLUSION OF LAW

The additional evidence received since the March 1997 RO 
decision is new and material; thus, the requirements to 
reopen the veteran's claim of entitlement to service 
connection for a back disability have been met.  38 U.S.C.A. 
§§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the favorable decision contained herein-that is, 
the reopening of this claim-the Board will not, at this 
time, determine whether there has been sufficient compliance 
with the Veterans Claims Assistance Act of 2000 (VCAA).  
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, and 3.326(a).

Factual Background

In March 1980, the Board denied the veteran's claim for 
service connection for a back disorder.  In April 1990 and 
September 1995, the Board denied the veteran's application to 
reopen his claim for service connection for a back disorder.  
In December 1995, the veteran filed a claim to reopen his 
claim for service connection for a back disorder.  In a 
rating action dated in March 1997, the RO denied the 
veteran's application and informed the veteran of its 
determination that same month. The veteran did not disagree 
with that determination and the decision became final.  
Decisions of the RO are final under 38 U.S.C.A. § 7105; 
however, the VA must reopen the claim and review the former 
disposition of the case where new and material evidence is 
submitted with regard to that previously disallowed claim.  
38 U.S.C.A. § 5108. 

In November 1997, the veteran filed an application to reopen 
the claim for service connection for a back disorder.  Since 
the claim had been previously denied, that was a claim to 
reopen.  In order to reopen a claim which has been previously 
denied and which is final, the claimant must present new and 
material evidence.  38 U.S.C.A. § 5108.  

At the time of the March 1980 Board decision, the veteran's 
service medical records were unavailable and were believed to 
have been destroyed by fire.  Evidence also consisted of 
clinical records of U. Vaquer, M.D.  The physician reported 
that he had treated the veteran since April 1973 for 
discogenic disc disease.  The clinical records indicated that 
the veteran had fallen down and had trauma to his lumbar 
area.  A September 1975 VA examination reported indicated 
that the veteran reported that he injured his back as a 
result of an automobile accident while employed as a truck 
driver in 1967.  The diagnosis included lumbar myositis by 
history.  The record also included 1979 statements of the 
veteran, in which, he asserted various incidents regarding 
the cause of his back disorder.  The VA also considered 
affidavits of the veteran's family and a fellow serviceman.  
In essence the statements indicated that the veteran injured 
his back in service.  The Board concluded that the inservice 
injury was acute and transitory in nature.  Further, that in 
the 13 years subsequent to service, the veteran had several 
nonservice related back injuries.  As such, service 
connection was denied.  

In April 1990, the Board denied the veteran's claim for 
service connection for a back disorder.  The pertinent 
additional evidence included VA outpatient and examination 
reports, private medical records, and the transcript of a 
personal hearing before a hearing officer dated in July 1987 
(the veteran and E.O., a service comrade, testified that the 
veteran injured his back in service).  The medical records 
showed that the veteran was seen and treated for a back 
disorder.  The Board determined that this evidence did not 
establish that the veteran had chronic residuals of a back 
injury in service.  It was noted that spondylosis was 
indicated in the evidence and was first shown many years 
after the presumptive period for arthritis expired.

The results of a search from NPRC dated in April 1991 showed 
that the veteran's physical and dental examinations could not 
be reconstructed, and there was a negative Surgeon General's 
Office search.

In September 1995, the Board again denied the veteran's 
application to reopen his claim for service connection for a 
back disorder on the basis that new and material evidence had 
not been submitted.  The evidence that the Board considered 
included private medical records and statements, lay 
statements, VA outpatient treatment records, and personal 
hearing transcripts dated in July 1987, July 1992, and 
September 1994.

The VA and private medical evidence primarily showed that the 
veteran was seen and treated for a low back disorder.  In 
April 1990, Dr. Sanchez reported that he began treating the 
veteran for a "low back condition" around 1958.  The Board 
determined that this evidence was new, but it was not 
material in that it did not show that the veteran's back 
disorder was related to service, although he had been treated 
for the disorder two years after he separated from service.  
In addition, some of the evidence reflected that veteran 
reported a history that his back disorder began in service.  
The Board in the 1980 decision had rejected such evidence.  
The Board also found that the statements and testimony of the 
veteran and friend were either duplicative or not material.

In January 1996, the RO received the veteran's application to 
reopen his claim for service connection for a back disorder.  
He indicated that he had injuries to his back after service; 
however, those injuries were superimposed on his claimed 
service-incurred back injury.

In March 1997, the RO considered treatment records from 
Kaiser Permanente dated from 1996 to 1997 that showed that 
the veteran had a history of low back pain described as L4-L5 
disc disease.  The RO determined that the evidence was not 
material to the issue of establishing incurrence of a back 
disorder during service that ended in January 1958.

The evidence submitted since the March 1997 rating action 
includes written statements of the veteran and a fellow 
serviceman, as well as testimony and written opinions of Dr. 
Bash.  Dr. Bash reviewed the record and concluded that the 
veteran's current back disorder is related to his military 
service.   



Criteria and analysis concerning whether new and material 
evidence has been submitted to reopen a claim for service 
connection for a low back disorder

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 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) (2001); 
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The 
claimant does not have to demonstrate that the new evidence 
would probably change the outcome of the prior denial.  
Rather, it is important that there be a complete record upon 
which the claim can be evaluated, and some new evidence may 
contribute to a more complete picture of the circumstances 
surrounding the origin of a claimant's injury or disability.  
Hodge, 155 F.3d at 1363.

In general, service connection may be granted for disability 
resulting from disease or injury incurred in or aggravated by 
active military service.  38 U.S.C.A. §§ 1110, 1131.

The Board notes that the standard for new and material 
evidence was recently amended.  See 38 C.F.R. § 3.156(a) 
(2003).  However, that amendment applies only to claims to 
reopen received on or after August 29, 2001.  See 66 Fed. 
Reg. 45620 (August 29, 2001).  Since this claim was received 
before that date, the law in effect when the claim was filed 
is applicable.  That is the standard discussed above.

The evidence received subsequent to March 1997 is presumed 
credible for the purposes of reopening a claim unless it is 
inherently false or untrue, or it is beyond the competence of 
the person making the assertion.  Duran v. Brown, 7 Vet. App. 
216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 
(1992).  See also Robinette v. Brown, 8 Vet. App. 69, 75-76 
(1995).  

With the exception of the cumulative nature of the veteran's 
contentions and the medical evidence showing that he has been 
diagnosed with a lumbar disability, the rest of the evidence 
received since 1997 is new in that it was not previously of 
record.  It is necessary, therefore, to decide if this 
evidence is material.  To be material, it must be (a) 
relevant in that it bears directly and substantially on the 
matter under consideration, and (b) so significant, either by 
itself or with other evidence, that it must be considered in 
order to fairly decide the claim.  See 38 C.F.R. § 3.156(a) 
(emphasis added).

In applying the above analysis to the evidence submitted 
since the last final decision, the Board finds that the new 
evidence-in particular, the private physician's comments and 
opinions regarding incurrence of the appellant's back 
disorder-is new and material and requires reopening of the 
appellant's claim.  Assuming the credibility of this 
evidence, see Justus, supra, the Board finds that these 
statements are so significant that they must be considered in 
order to fairly decide the merits of the claim.  Therefore, 
the Board finds that this evidence is both new and material, 
and serves to reopen the claim.  38 C.F.R. § 3.156(a).  

As additional action is required by the RO, the issue is 
remanded to the RO for development and readjudication on the 
merits, as discussed below.


ORDER

The claim for service connection for a low back disorder is 
reopened.  To this extent only, the appeal is granted.


REMAND

The Board has found that new and material evidence has been 
submitted to reopen the appellant's claim for service 
connection for a low back disorder.  In light of the decision 
cited above, the issue concerning service connection for a 
back disorder should be reviewed on a de novo basis, but only 
after ensuring that the duty to assist as well as notify 
under 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 has been 
fulfilled.  

The Board notes that a VCAA notice must be consistent with 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  As referred to 
above, the joint motion questions whether the VCAA duty to 
notify had been satisfied.  

The veteran reported in a December 1978 statement that he 
received back treatment at the medical facility in Fort 
Belvoir, Virginia, in May 1957.  Further, at the September 
1975 VA examination, the veteran reported that he was 
involved in a car collision in 1967.  He received medical 
treatment at Gray Hospital in Cleveland, Ohio, and thereafter 
at the Metropolitan General Hospital.  He also reported that 
he was receiving Social Security Administration (SSA) 
disability benefits due, in part, to his back disability.  At 
the July 1987 personal hearing, the veteran reported that 
during the late-1950's, he was employed at the "old hospital 
in the Ponce District" where he received back treatment 
during that time period.  The RO should attempt to obtain 
these records.  

As referred to above, a private physician has indicated that 
the appellant's back disorder was incurred in service.  
Further examination and opinion would be helpful in this 
case.

In view of the above, the case is remanded to the RO via the 
AMC in Washington DC for the following:

1.  An up-to-date VCAA letter should be 
sent.  The RO should request the veteran 
to "provide any evidence in [his] 
possession that pertains to the claim."  
See 38 C.F.R. § 3.159(b).  See also 
Quartuccio v. Principi, 16 Vet. App. 183 
(2002).

2.  The appellant should be requested to 
provide additional specific information 
(dates of treatment or examination, 
inpatient vs. outpatient) concerning 
treatment received in the 1950's from the 
"VA Section" of St. Luke's Hospital, 
Ponce, Puerto Rico, and in 1967 from Gray 
Hospital in Cleveland, Ohio, and the 
Metropolitan General Hospital.  The RO 
should attempt to obtain records of such 
treatment, if possible.  All records 
obtained should be associated with the 
claims folder.  

3.  The RO should ask NPRC to search for 
INPATIENT CLINICAL records of the 
veteran's hospitalization in 1957 at Fort 
Belvoir, Virginia. 

4.  The RO should contact the Social 
Security Administration and obtain copies 
of any decision awarding the appellant 
disability benefits from that agency as 
well as copies of the medical records 
utilized in making that determination.

5.  The RO should forward the claims 
folders to a VA medical facility to 
determine whether the veteran's back 
disability was incurred during his active 
duty.  The reviewer's attention is 
invited to the February 2005 opinion and 
testimony of Dr. Bash, as well as the 
assembled records.  The reviewer should 
render an opinion as to whether it is at 
least as likely as not (that is, a 
probability of 50 percent or better) that 
his current back disability is related to 
his period of active duty.  If this 
cannot be medically determined without 
resorting to mere conjecture, this should 
be commented upon.  Request the reviewer 
to comment on the clinical significance 
of the post service back injuries as they 
relate to the current disability.  The 
rationale for any opinion expressed 
should be included.  

6.  The RO should consider the 
appellant's reopened claim for service 
connection for a back disorder on a 
de novo basis.  

7.  If the benefit sought on appeal 
remains denied, the appellant and the 
appellant's representative should be 
provided with a supplemental statement of 
the case (SSOC).  The SSOC must contain 
notice of all relevant actions taken on 
the claim for benefits, to include a 
summary of the evidence and applicable law 
and regulations considered pertinent to 
the issue currently on appeal.  An 
appropriate period of time should be 
allowed for response.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The appellant is hereby notified that 
it is his responsibility to report for the examination and to 
cooperate in the development of the case, and that the 
consequences of failure to report for a VA examination 
without good cause may include denial of the claim.  
38 C.F.R. §§ 3.158 and 3.655.

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 of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).



	                     
______________________________________________
	J E. DAY
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs