BVA9402543
DOCKET NO.  89-07 995     )       DATE
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THE ISSUE

Whether new and material evidence has been received to reopen a claim
for entitlement to service connection for a back disorder, secondary
to service-connected below-the-knee amputation of the left leg, and,
if so, whether all the evidence both old and new warrants the grant
of service connection for a back disorder.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Connolly, Associate Counsel

INTRODUCTION

The veteran had active service from December 1940 to January 1944.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from an April 5, 1988, decision of the Columbia, South
Carolina, Regional Office (RO) of the Department of Veterans Affairs
(VA).  The notice of disagreement was received on August 1, 1988.
The statement of the case was sent to the veteran on January 5, 1989.
The substantive appeal was received on February 22, 1989.  The appeal
was originally received at the Board on March 30, 1989, and was
docketed on June 6, 1989.

The Board remanded this case for further development on May 1, 1990.
A supplemental statement of the case was sent to the veteran on April
1, 1991.  The appeal was again received at the Board on August 1,
1991, and was docketed on August 9, 1991.  The Veteran's
representative, Disabled American Veterans (DAV), submitted written
argument on December 23, 1991.

In a January 23, 1992 decision, the Board remanded this case again
for further development.  Supplemental statements of the case were
sent to the veteran on September 25, 1992, on January 20, 1993, and
on February 22, 1993.  The appeal was again received at the Board on
September 2, 1993, and was docketed on September 3, 1993.  DAV
submitted additional written argument dated September 2, 1993.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative essentially contend that he has
continued to suffer from a lumbosacral back disorder as a result of
his service-connected below-the-knee amputation which has caused him
to walk with an altered gait.  They assert that a recent VA
examination as well as other medical evidence supports this
contention

DECISION OF THE BOARD

1.  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(s).  The Board
has determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim.  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 veteran's
claim for entitlement to service connection for a back disorder,
secondary to service-connected below-the-knee amputation of the left
leg.

2.  Further, it is the decision of the Board that the veteran is
entitled to service connection for a lumbosacral spine disorder,
secondary to service-connected below-the-knee amputation of the left
leg.

FINDINGS OF FACT

1.  Service connection for a back disorder was denied by the RO in a
January 1986 rating decision.  The veteran, in a February 1986 letter
was apprised of his procedural and appellate rights; however, a
notice of disagreement was not received within the subsequent one-
year period.

2.  Additional evidence submitted subsequent to the RO's January 1986
decision, pertaining to the veteran's request to reopen his claim for
service connection for a back disorder, secondary to his service-
connected below-the-knee amputation, is new and material in that it
raises a reasonable possibility that a review of all the evidence
would result in a grant of service connection.

3.  The veteran's service-connected below-the-knee amputation of the
left leg with below-the-knee prosthesis has contributed to altered
sacral pelvic mechanics of the left lower extremity and altered gait
resulting in progressive degenerative spondylosis in his lumbosacral
and sacral pelvic spine with low back pain.

CONCLUSIONS OF LAW

1.  The decision of the RO in January 1986 is final.  38
U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1993).

2.  New and material evidence has been submitted and the claim for
service connection for a back disorder, secondary to service-
connected below-the-knee amputation of the left leg, is reopened.  38
U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993).

3.  The veteran has a spondylosis of the lumbosacral and sacral
pelvic spine, which is proximately due to or the result of his
service-connected below-the-knee amputation of the left leg.
38 C.F.R. § 3.310(a) (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board observes that the RO denied entitlement to service
connection for a back disorder in a January 1986 rating decision.  In
a February 1986, letter, the veteran was notified of the decision and
of his procedural and appellate rights; however, a notice of
disagreement was not received within the subsequent one-year period.
Accordingly, the January 1986 decision is final pursuant to 38
U.S.C.A. § 7105 (West 1991) and 38 C.F.R. § 3.104 (1993).  That
decision is final and cannot be modified unless evidence submitted in
support of the veteran's claim is "new and material" and warrants a
revision of the previous decision pursuant to 38 U.S.C.A.
§ 5108 (West 1991).  "New and material evidence" means evidence not
previously submitted to the RO which bears directly and substantially
on the specific matter under consideration, and 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) (1993).  Colvin v. Derwinski, 1 Vet.App. 171
(1991).

The United States Court of Veterans Appeals (Court) has set forth a
two-step analysis in Manio v. Derwinski, 1 Vet.App. 140 (1991), to be
employed when an appellant seeks to reopen a previously denied claim
on the basis of "new and material evidence."  The two-step analysis
requires that a determination be made, under 38 U.S.C.A. § 5108 (West
1991), regarding whether the evidence is "new and material" so as to
permit the reopening of the claim.  If it is, a decision must then be
made as to whether the evidence presented warrants a revision of the
former disposition.  The second level analysis must be made based
upon an evaluation of the merits of the claim in light of all the
evidence, both old and new.  An adverse determination regarding
either question is appealable.

The Court has stated that the credibility of new evidence is to be
presumed.  Therefore, if such evidence presents a reasonable
possibility of changing the outcome then the claim is reopened.  Once
the claim has been reopened, the ultimate credibility or weight to be
given such evidence must be determined as a question of fact.
Justus v. Principi, 3 Vet.App. 510 (1992).  The evidence added to the
record subsequent to January 1986 includes Marion Memorial Hospital
treatment records; Columbia, South Carolina VA Hospital inpatient and
outpatient records; Columbia South Carolina VA Medical Center records;
treatment records from Ira Barth, M.D.; and a VA examination of the
veteran's joints and spine dated November 1992.  The veteran's various
medical records document continuous complaints of and treatment for
low back pain.  Additionally, in the November 1992 report of VA
examination, the examiner opined that the veteran's alternative gait
mechanic was a contributing factor in the development of the veteran's
low back pain and spondylosis.  The examiner stated that it is "quite
possible and likely that the veteran's altered gait pattern over his
lifetime as the result of his below-the-knee amputation with below-
the-knee prosthesis has contributed to altered sacral and pelvic
mechanics with a resulting progressive degenerative spondylosis in his
lumbosacral and sacral spine."  Therefore, since the newly submitted
evidence offers a basis for the veteran's claim for entitlement to
service connection for a back disorder, secondary to his service-
connected below-the-knee amputation, the veteran has presented a
reasonable possibility of changing the outcome of his case.
Therefore, the foregoing evidence only for the purposes of deciding
whether it is new and material must be presumed to be credible; thus,
the veteran's claim for entitlement to service connection for a back
disorder, secondary to his service-connected below-the-knee
amputation, is reopened.  Justus.

A review of the veteran's service medical records reveals no
findings, complaints or treatment pertaining to a back disorder.
Following discharge, there is no record of treatment for the
veteran's back until March 1951, when he was injured in an automobile
accident.  A Columbia, South Carolina VA Hospital report revealed
that in addition to injuries unrelated to the back, the veteran
sustained a simple fracture of his cervical vertebrae at C-6, left,
with subluxation on C-5 and C-6.  The examiner also noted a contused
wound of the right flank and tenderness in the paravertebral region,
mid-lumbar region, none over the spine.  However, laboratory and x-
ray findings revealed that there was no evidence of a fracture of the
lumbar spine.  The veteran was subsequently treated at the Columbia,
South Carolina VA Hospital in April 1954.  The report revealed that
he had a history of a fracture of the cervical vertebrae, but the
back was essentially normal.

In February 1957, the veteran underwent a below-the-knee-amputation
of his lower left extremity.  Subsequently, in a decision dated April
1957, the veteran was granted service connection for an amputation of
the left leg, 7 inches below the knee.  In October 1958, the veteran
was examined at the Fayetteville, North Carolina VA Hospital.
Laboratory and x-ray findings revealed that the cervical spine on 9-
10 had "marked narrowing between the bodies of C-4 and 5 and C-6 and
7," with minimal osteoporosis present.  Cervical spine films showed
some deformity of the cervical vertebrae and some changes of
osteoarthritis.

The veteran initially asserted that he had a back disorder in
correspondence received on April 11, 1985, in which he asserted that
he suffered from a back disorder, secondary to inservice hemorrhoids
surgery.  In April 1985, the veteran was afforded a special
orthopedic examination at the Columbia, South Carolina VA Hospital.
At that time, he complained of lower back pain.  The examination of
his lumbosacral spine was essentially negative.  However, the
examiner noted that the complaints were apparently due to postural
imbalance of the lumbosacral spine in relation to the amputated left
lower extremity and that the postural imbalance was creating the
complaints of chronic lower back syndrome.  X-rays of the lumbosacral
spine revealed minimal degenerative changes.  The examiner opined
that the veteran had postural imbalance with complaints of lower back
syndrome.  Subsequently, in a rating decision dated August 1985, the
RO denied service connection for a back disorder, secondary to
alleged hemorrhoids surgery.

At that time, the veteran also received treatment from Ira Barth,
M.D., a private physician.  A July 1985 medical record reflects
complaints of low back pain.  In a letter dated December 1985, Dr.
Barth, stated that the veteran had complained of back pain which was
due to the fact that he had pulled his left leg around and had
consequently sustained chronic lumbar strain and spasm.  He opined
that the veteran's back disorder was unrelated to his
hemorrhoidectomy.  Subsequently, following the April 1985 VA
examination and his treatment from Dr. Barth, the veteran again
pursued a claim with the VA for service connection for a back
disorder.  In response the RO, in a January 1986 rating decision,
denied service connection for a back disorder on any basis.

Subsequently, the veteran was afforded treatment at the Columbia,
South Carolina VA Hospital from 1985 to 1990.  His records document
continuous complaints of low back pain and reflect numerous problems
with the veteran's below-the-knee prosthesis which required several
adjustments.  In December 1985, the examiner noted that the veteran's
low back pain was of a chronic nature which had increased since the
veteran was fitted for a below-the-knee prosthesis.  A subsequent
orthopedic evaluation noted that the veteran had constant mechanical
low back pain.  In 1986, the veteran began complaining that his low
back pain radiated down to his lower extremities.  Several x-rays
taken of his lumbosacral spine between 1986 and 1988 revealed mild
degenerative changes and mild osteoarthritis of the lumbar spine.
Treatment records from the Columbia VA Medical Center dated September
1987 to June 1988 further reported the veteran's persistent
complaints of low back pain.  The veteran also received treatment
from the Marion Memorial Hospital which noted in a February 1987
hospitalization record that he had low back pain due to the short leg
syndrome.

The veteran was recently afforded a VA examination on November 21,
1992.  At that time, the veteran complained of continued and
progressive low back pain.  The examiner noted that an examination of
the lumbar spine was difficult since the veteran was unable to
balance himself and perform many of the maneuvers necessary for a
thorough lumbar spine examination.  However, the examiner also noted
that the palpitation examination over the sacrum in the region of the
sacroiliac joint as well as in the region of the lumbosacral junction
was significantly tender to palpitation which was consistent with the
veteran's localization of his pain.  After reviewing the veteran's
claims folder and performing a physical examination, the examiner
opined that there are several reasons for the veteran's chronic low
back pain.  He noted that these reasons include the veteran's 1951
automobile accident which resulted in significant cervical spine
trauma.   The examiner further noted that there was reason to believe
that there was a significant lumbar component to the 1951 accident,
but this was unclear based on the veteran's chart.  However, the
Board observes that the 1951 hospital report noted a contused wound
of the right flank and tenderness in the paravertebral region, mid-
lumbar region, none over the spine, but laboratory and x-ray findings
revealed that there was no evidence a fracture of the lumbar spine.
The examiner also stated that it is quite possible and likely that
the veteran's altered gait pattern over his lifetime resulting from
his below-the-knee amputation with below-the-knee prosthesis has
contributed to altered sacral pelvic mechanics with a resulting
progressive degenerative spondylosis in his lumbosacral and sacral
pelvic spine.

In summary, the evidence shows that the veteran sustained a serious
injury to his cervical spine in 1951, he also independently developed
a disorder of the lumbosacral spine due to his service-connected
below-the-knee amputation of his left leg.  Following his amputation
and several prosthesis adjustments, the mechanics of the veteran's
gait were altered which resulted in persistent low back pain.  A
current VA examination of the veteran's spine determined that it is
likely that the veteran's altered gait pattern over his lifetime
resulting from his amputation with below-the-knee prosthesis has
contributed to altered sacral pelvic mechanics with a resulting
progressive degenerative spondylosis in his lumbosacral and sacral
pelvic spine.

Thus, although there is some evidence suggesting that the veteran's
low back disability is the result of an automobile accident, the
recent medical reports are to the effect that the service-connected
disability has caused degenerative spondylosis of the lumbosacral and
sacral pelvic spine.  This recent evidence is in contrast to the
medical reports that were available when the claim was denied in
1986; the evidence that was available at that time included an
orthopedic examination report with negative findings for the
lumbosacral spine.  In view of the recent medical findings of
degenerative spondylosis, along with a medical opinion that the
disorder is likely the result of the service-connected disability,
the weight of the evidence has been shifted significantly in the
appellant's favor, and there is currently an approximate balance of
evidence for and against the claim.  When there is an approximate
balance in the evidence for and against the veteran's claim, doubt
must be resolved in favor of the claimant.  38
U.S.C.A. § 5107(b) (West 1991).  Accordingly, the Board finds that
the veteran has progressive degenerative spondylosis in his
lumbosacral and pelvic spine, which is proximately due to or the
result of his service-connected below-the-knee amputation of the left
leg.  Therefore, the grant of service connection for spondylosis of
the lumbosacral and sacral pelvic spine is warranted.  38
U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993).

ORDER

The claim for service connection for a back disorder, secondary to
service-connected below-the-knee amputation of the left leg, is
reopened and, service connection for a lumbosacral spine disorder,
secondary to service-connected below-the-knee amputation of the left
leg, is granted.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

                  G. H. SHUFELT

          C. D. ROMO

38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel.  The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.

                                  (CONTINUED ON NEXT PAGE)

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 1991), 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
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.