BVA9503417 DOCKET NO. 92-53 269 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Stephen L. DeVita, Attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had certified active military service from June 1983 to June 1987. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an August 1990 rating decision of the Cleveland, Ohio Regional Office (hereinafter "the RO") which denied service connection for a neck disability. In July 1992, the Board determined that the veteran had submitted new and material evidence to reopen his claim of entitlement to service connection and denied service connection for a neck disability following a de novo review of the record. In November 1994, the United States Court of Veterans Appeals (hereinafter "the Court") vacated the Board's decision and remanded this appeal to the Board with instructions to afford the veteran a new examination in order to fully ascertain the presence and extent of his current neck disability and the relationship of such disability to service. The veteran is represented in this appeal by Stephen L. DeVita, Attorney. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to reopen and grant his claim for service connection for a neck disability. He contends that he sustained a chronic neck disorder during active military service when he struck his head while in the shower. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the decision of the Board that he has submitted new and material evidence sufficient to reopen his claim for service connection for a neck disability. For the reasons and bases discussed below, the veteran's claim is remanded to the RO for further action. FINDINGS OF FACT 1. In March 1990, the Board denied service connection for residuals of a neck injury. The veteran and his accredited representative were provided with copies of the Board's decision. 2. The additional documentation submitted since the March 1990 Board decision includes information not previously considered which, when viewed with all the evidence, could lead to a decision favorable to the veteran. CONCLUSION OF LAW The additional documentation received since the March 1990 Board decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for a neck disability. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed as to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a neck disability. I. Prior Board Decision In March 1990, the Board denied service connection for residuals of a neck injury. The veteran and his accredited representative were provided with copies of the Board's decision. The evidence considered by the Board in formulating its March 1990 decision may be briefly summarized. The veteran's service medical records indicate that he complained of a stiff neck in September 1984 and denied having sustained any trauma. A January 25, 1986 treatment entry notes that the veteran complained of having struck his head against a door ledge earlier in the day while in the shower. Naval medical personnel observed that the veteran could not touch his chin to his chest and exhibited a range of motion within normal limits; no pain upon palpation of the cervical spine and no neurological abnormalities or other deformities. An impression of mild muscle strain was advanced. A January 26, 1985 treatment entry conveys that the veteran complained of neck pain of one weeks' duration. The veteran was found to be unable to touch his chin to his chest and to exhibit mild tenderness upon palpation of the cervical spine; good neurological checks and no echomisis. A diagnosis of bilateral trapezius muscle strain was advanced. A January 27, 1986 naval orthopedic evaluation reports that the veteran exhibited tenderness of the C6 spinous process; increased pain at C6 with forward flexion, lateral bending to the right and rotation to the left; intact strength; and no spasms, paraspinal muscle tenderness or sensory loss. Contemporaneous X-ray studies were reported to show questionable narrowing of C5-6. The examiner advanced an impression of possible subluxation of the C6 facet. A February 1986 treatment entry relates that the veteran complained of pain upon full flexion of the cervical spine. An impression of C6 facet subluxation was advanced. A February 1986 physical therapy treatment record shows that the veteran complained of posterior neck pain associated with neck flexion. He exhibited tenderness to palpation at the C4-5 and C5-6 interspinal spaces. An impression of cervical sprain was advanced. At the May 1987 physical examination for service separation, the examiner reported no abnormalities of the spine or the musculoskeletal system. At an August 1988 VA examination for compensation purposes, the veteran complained of suffering from monthly episodes of neck stiffness with some associated loss of motion. He related having hit his head and jammed his neck in a shower room during active military service. On examination, the veteran exhibited a full range of motion of the neck with no complaints of pain; no crepitation and no sensory deficit. An impression of a full range of motion of the neck with subjective pain was advanced. II. New and Material Evidence When a veteran requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, whether the record provides a basis for allowing the claim. An adverse determination as to either decision is appealable. 38 U.S.C.A. § 7104 (West 1991). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the March 1990 Board decision. Title 38 of the Code of Federal Regulations (1993) states, in pertinent part, that: "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 case. 38 C.F.R. § 3.156(a) (1993). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is merely cumulative of other evidence already present in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990). When evidence is material, it means that there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the appeal. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence received since the March 1990 Board decision consists of photocopies of the veteran's service medical records; VA examination records; statements from Roland Toth, D.C., and Hugh Moncrief, M.D.; the transcript of the February 1991 hearing on appeal; and statements from the veteran, Mark A. Messaros, Jess M. Messaros and Joseph A. Messaros. A December 1990 statement from Dr. Toth advances that the veteran complained of experiencing chronic neck pain since striking his head on a doorway arch while leaving a shower during active military service. Dr. Toth examined the veteran and diagnosed him as suffering from an acute exacerbation of cervical (neck) strain; cervicobrachial syndrome including nerve root entrapment of the C4 and the C5 cervical nerves; and spasm of the cervical musculature involving particularly the splenius and left upper trapezius muscles. Dr. Toth commented that "there is a direct and proximate relationship between the injury reported by my patient and the diagnosis." An August 1993 statement from Dr. Moncrief conveys that the veteran's current neck disorder is etiologically related to his January 25, 1986 neck injury during active military service. The Board observes that the additional documentation submitted since the March 1990 Board decision consists, in part, of opinions from the veteran's private physician and chiropractor which relate that he suffers from a chronic neck disorder etiologically related to a neck injury sustained during active military service. Such evidence is new and material as to the issue of service connection for a neck disability and is therefore sufficient to reopen the veteran's claim. ORDER The veteran's application to reopen his claim of entitlement to service connection for a neck disability is granted. REMAND In light of the reopening of the veteran's claim and the Court's decision in [citation redacted], this case is REMANDED for the following action: 1. The RO should contact the accredited representative and inform the veteran that he may submit additional evidence and argument in support of his claim for service connection for a neck disability and may request an additional personal hearing. The veteran should be allowed an adequate period of time to respond to the RO's notice. 2. The RO should then schedule the veteran for a VA examination which includes orthopedic and neurological evaluations in order to determine the current nature and severity of his neck disability, if any. The examination should be conducted in accordance with the Physician's Guide to Disability Evaluation Examinations. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiners should express their opinion as to the etiology of all identified disorders. The claims folder should be made available to the examiners prior to the examination. 3. The RO should then adjudicate the veteran's claim for service connection for a neck disability on a de novo basis. When the requested action has been completed and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, this case should be returned to the Board for further appellate consideration, if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for additional development of the record and due process of law. No inference should be drawn from it regarding the final disposition of this claim. JEFF MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the Court. This 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) (1993).