Citation Nr: 0003326 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-12 328A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine and cervical spine. 2. Entitlement to a rating greater than 40 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to November 1948, and from April 1952 to June 1954, and from March 1956 to May 1958. This case comes before the Board of Veterans' Appeals (Board) from rating decisions rendered in October 1997 and May 1998, in which the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) denied the veteran's claim of entitlement to a rating greater than 40 percent for his service-connected lumbosacral strain, and denied his petition to reopen his claim(s) of entitlement to service connection for DJD of the lumbar spine and cervical spine. The veteran subsequently perfected appeals of these decisions. The veteran's claim of entitlement to a rating greater than 40 percent for his service-connected lumbosacral strain, will be addressed in the remand portion of this decision. The Board notes that the veteran contends that he is unable to work due to his back disability and interprets this as an informal claim of entitlement to a total disability rating due to individual unemployability. The record does not indicate that the RO has considered this claim; however, the Board finds that it is inextricably intertwined with his claim of entitlement to an increased rating for his lumbosacral strain. Therefore, this claim will also be addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran's petition to reopen his claim of entitlement to service connection for DJD of the lumbar spine and cervical spine were denied by the Board in an August 1991 decision. 2. The evidence received subsequent to August 1991 is relevant to the issue and has not been previously submitted; however, it is cumulative of evidence already of record. CONCLUSIONS OF LAW 1. The Board's August 1991 decision, wherein the veteran's petition to reopen his claim of entitlement to service connection for DJD of the lumbar and cervical spine was denied, is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 20.1100, 3.104(a) (1999). 2. The evidence received subsequent to the August 1999 Board decision is not new and material, and does not serve to reopen the veteran's claim of entitlement to service connection for DJD of the lumbar and cervical spine. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a July 1980 decision the RO denied the veteran's claim of entitlement to service connection for a back disability to include disc degeneration of the cervical and lumbar spine. In September 1981 the RO determined that the evidence supported entitlement to service connection for lumbosacral strain, but that there was no evidence of a nexus between the veteran's DJD of the lumbar and cervical spine and his period of active service. This decision was confirmed in September 1986. In April 1988 the Board rendered a decision denying the veteran's claim of entitlement to service connection for DJD of the cervical and lumbar spine. In May 1990 the RO again denied this claim, and upon review, the Board determined, in an August 1991 decision, that the veteran had not submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for DJD of the cervical and lumbar spines. The August 1991 Board decision stands as the last final decision on this issue. Prior Board decisions are final, and may be reopened only upon the receipt of additional evidence that, under the applicable statutory and regulatory provisions, is both new and material. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). Pursuant to the applicable regulation, new and material evidence means evidence 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. 38 C.F.R. § 3.156(a) (1999). In order to be "new" the evidence must not have been in the record at the time of the last final denial of the claim, and must not be merely redundant or cumulative of already considered evidence; that is, it should present new information. Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Dolan v. Brown, 9 Vet. App. 358, 363 (1996). In addition to being "new," the evidence must be material, in that it pertains to the issue for which the petition to reopen is requested. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In order to be "material," the evidence need not warrant revision of a previous decision. Hodge v. West, 155 F.3d 1356 (1998). The significant factor is whether there is a complete record for evaluation of an appellant's claim. Id. Further, in determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the Court of Appeals of Veterans Claims has held that, the first determination is whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1999) in order to have a finally denied claim reopened. Second, if new and material evidence has been presented, immediately upon reopening the claim it must be determined whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, evaluation of the merits of the claim must occur but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). At the time of the Board's August 1991 decision, the evidence of record consisted of the veteran's service medical records which show no evidence of diagnosis of DJD of the cervical or lumbar spine; private medical records showing treatment for DJD of the lumbar spine with curvature from 1975, and evidence of treatment for cervical spine from 1976; several VA spine examinations from June 1980 to March 1990; a statement from the veteran's neighbor stating that he has observed the veteran's back problems from 1958, and an April 1981 letter from the veteran's employer stating that he was determined to be medically disabled and given disability retirement; along with statements by the veteran asserting that he injured his back in service on two occasions, once when he was struck by a forklift and pushed against a crate, and once when he attempted to pick up a truck axle. The evidence submitted subsequent to the August 1991 Board decision includes a June 1997 medical statement by a private physician concerning the current status of the veteran's back problems; a September 1997 VA examination report documenting the current status of the veteran's back problems; an April 1998 statement by a private physician stating that the veteran is unable to work due to his limitation of motion in the back and arthritis; and, finally, statements and testimony from the veteran concerning his injuries in service. Reviewing the evidence, the Board finds that the newly submitted evidence does not meet the criteria of new and material evidence. While this evidence is relevant to the issue at hand, and to that extent is material, it is not new. The medical statements and examination reports are cumulative of evidence already of record which has established that the veteran suffers from DJD of the cervical and lumbar spine. As for the veteran's testimony and statements, prior to the Board's August 1991 decision the veteran provided the details of the injuries in service which he feels are responsible for his current arthritis, and these are the same incidents which he described in his testimony before the RO at his October 1998 personal hearing. Accordingly, the veteran's petition to reopen his claim of entitlement to service connection for DJD of the cervical and lumbar spine is denied. ORDER New and material evidence has not been received to reopen a claim for service connection for DJD of the lumbar and cervical spine, and the benefits sought on appeal with regard to that disability remain denied. REMAND After a review of the record, it is the opinion of the Board that additional development of the evidence should be accomplished prior to further consideration of the veteran's claim of entitlement to a rating greater than 40 percent for lumbosacral strain. The most recent VA examination report dated in September 1997 indicates that the veteran has significant functional loss due to pain. Additionally, a private medial record from April 1998 states that the veteran is totally disabled due to his limitation of motion, need for a cane, and inability to walk for long distances. Neither of these medical records indicate whether the veteran's limitation of motion is due to his service-connected lumbosacral strain or his non-service-connected arthritis of the lumbar spine. Therefore, because it is not the function of the Board to make medical determinations, see Colvin v. Derwinski, 1 Vet. App. 171 (1991), there is insufficient information in the record upon which the Board can make a decision as to the current severity of the veteran's lumbosacral strain and employability. Further, the Board notes that the veteran testified at his October 1998 hearing that he is currently receiving treatment from a private physician, Dr. Beranek, and that he is in receipt of Social Security Administration disability benefits for his back. These records are not in the claims file, although they may be probative to the veteran's claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, the case is simply not ready for appellate review. To ensure due process, and to ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his appeal, the case is REMANDED to the RO for the following development: 1. The RO should notify the veteran that if he has any additional lay or medical evidence he wishes to submit to support his claim he may do so, particularly evidence he may have obtained which may not currently be in the claims file. Specifically, the RO should request that the veteran submit recent medical records from Dr. Beranek, Enterprise, Alabama. If the veteran would like the RO to obtain these records he should submit the appropriate signed authorization for the release of private medical records. 2. The RO should take the necessary steps to develop the veteran's informal claim of entitlement to a total disability rating due to individual unemployability, including forwarding him the applicable forms. 3. The RO should also take all appropriate steps to obtain all records compiled in conjunction with the Social Security Administration's award of disability benefits to the appellant, to include, but not limited to, the award decision and all medical records considered pursuant thereto. 4. The RO should schedule the veteran for an examination of his lumbar spine. The RO should also inform the veteran of the consequences of failing to report for the scheduled examination. It is very important that the examiner be afforded an opportunity to review the veteran's claims file prior to the examination. The veteran's low back should be examined for degrees of both active and passive range of motion and any limitation of function of the parts affected by limitation of motion of the lumbar spine. The examiner should also be asked to note the normal ranges of motion of the lumbar spine. The examiner should render an opinion as to whether the veteran's limitation of motion in the lumbar spine is due to his lumbosacral strain or his degenerative joint disease of the lumbar spine or both. If such an opinion is not possible, the examiner should note this fact in his report. Additionally, the examiner should be requested to determine whether the veteran's lumbar spine exhibits weakened movement, excess fatigability, subluxation, or incoordination attributable to the service-connected disabilities; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, subluxation or incoordination. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups and the impact of his lumbosacral strain on his ability to obtain or maintain gainful employment. Any necessary tests and studies should be performed and included in the examination report, with an explanation of the results or findings. 5. After the development requested above has been completed to the extent possible, the RO should again review the record and consider all the additional evidence. The RO should address the veteran's claim of entitlement to a total disability rating due to individual unemployability, and his eligibility for an extraschedular rating under 38 C.F.R. § 3.321(b) (1999). If any benefit sought, for which an appeal has been perfected, remains denied, the veteran and his representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto with additional argument and/or evidence. 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 veteran need take no action until notified. 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 Appeals for Veterans Claims 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. 1999) (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. JEFF MARTIN Member, Board of Veterans' Appeals