BVA9508299 DOCKET NO. 93-13 625 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen claims for service connection for atrophy of the right leg, flexion contractures of the left 4th and 5th fingers, and a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from May 1943 to March 1946. A regional office (RO) decision in January 1947 denied service connection for atrophy of the right leg and flexion contractures of the left 4th and 5th fingers. A subsequent RO decision in January 1948 denied service connection for a back disability. These decisions were not appealed and became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 19.129(a) (1994). The present appeal arises from a May 1992 decision by the Department of Veterans Affairs (VA) RO in St. Petersburg, Florida, which found that no new and material evidence had been presented to reopen claims for service connection for atrophy of the right leg, flexion contracture of the left 4th and 5th fingers, and a back disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he has submitted new and material evidence to reopen his previously denied claims for service connection for atrophy of the right leg, flexion contractures of the left 4th and 5th fingers, and a back disability. His representative argues that the veteran sustained a twisting injury to his back and a contusion of the right tibia while standing on a ladder aboard ship during a typhoon. He states that although the veteran was not treated for residuals of those injuries while on active duty, he did receive chiropractic treatment for a sciatic problem after service beginning in early 1947. The veteran also argues, in essence, that his residual weakness from the injuries in question are causally linked to the subsequent development of a low back disability with sciatica and atrophy of the right leg and elaborated upon the matters at issue at a hearing conducted at the RO. DECISION OF THE BOARD 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. 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 presented to reopen claims for service connection for atrophy of the right leg, flexion contractures of the left 4th and 5th fingers, and a back disability. FINDINGS OF FACT 1. By an unappealed RO decision in January 1947, service connection for atrophy of the right leg and flexion contractures of the left 4th and 5th fingers was denied. 2. By an unappealed RO decision in January 1948, service connection for a back disability was denied. 3. Evidence has been received since the earlier denials that was not previously available and which is relevant to and probative of the questions at hand. This new evidence raises a reasonable possibility of changing the previous outcomes. CONCLUSION OF LAW The additional evidence received subsequent to the January 1947 RO decision, which denied service connection for atrophy of the right leg and flexion contractures of the left 4th and 5th fingers; and a January 1948 decision, which denied service connection for a back disability, is new and material; the claims are reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of § 5107. In other words, evidence has been submitted that makes his claim a plausible one--"capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). He is a competent medical witness, having been trained in the field of medicine, albeit in a specialized field involving the feet. He has testified concerning the inception and aggravation of his disabilities, and he is competent to testify as to the same. For purposes of reopening, his testimony and medical evidence substantiating the current existence of his conditions is presumed to be credible. However, the current claim is not his first attempt at securing a grant of service connection. An RO decision in January 1947 denied service connection for atrophy of the right leg and flexion contractures of the left 4th and 5th fingers. An RO decision in January 1948 denied service connection for a back disability. These decisions were not appealed within the one-year time period allowed by law, and thus became final. In 1992, the veteran applied to reopen his claims. As already mentioned, the veteran provided competent medical testimony about injures he sustained during his period of military service. Detailed information like that provided in his testimony was not available to the RO when it originally denied his claim of service connection. He clearly implicates his period of service as the reason for his current disabilities, and the service medical records do show the existence of atrophy of the right leg. The veteran has explained that the turning motions involved in his job aboard ship aggravated his hand condition, and has indicated that although he was not treated in service for back symptoms, he was treated for such within a year after service. His testimony, based on his own medical expertise, is probative of the question at issue and raises a reasonable possibility that the earlier outcome would change. The veteran's claims of service connection should therefore be reopened. ORDER Claims of entitlement to service connection for atrophy of the right leg, flexion contractures of the left 4th and 5th fingers, and a back disability are reopened and, to this extent, the appeal is granted. REMAND In light of the Board's conclusion that the claim of service connection is reopened, consideration must be given to whether additional development is required in order to ensure that the veteran's procedural rights are protected so far as his being given adequate notice and opportunity to present evidence on the underlying question of service connection. Bernard v. Brown, 4 Vet.App. 384 (1993). As already noted, the RO determination appealed by the veteran was whether evidence had been received sufficient to reopen the claim. Now that this question has been settled, the Board finds that the veteran should be given an opportunity to submit evidence, including testimony and argument on the substantive question of entitlement to service connection. In order to give the veteran adequate notice of the need to submit such evidence or argument, and to allow the RO the opportunity to adjudicate the merits of the claim of service connection on a de novo basis, a remand is required. Id. Consequently, the case is REMANDED for the following action: 1. An orthopedist should be asked to review the evidence contained in the claims file, including the service medical records, examine the veteran, and provide an opinion regarding the etiology and extent of problems the veteran experienced during service. Specifically, the examiner should state whether it is at least as likely as not that the veteran's flexion contractures underwent a chronic worsening during service beyond what would normally be expected given the nature of the pre- existing disability. The examiner should also state whether it is at least as likely as not that the veteran sustained chronic atrophy of the right leg or disability of the back due to an in-service injury. All findings, opinions and bases therefor should be set forth in detail. 2. After completion of the development sought above, the RO should take adjudicatory action on the substan-tive question of service connection. The claim should be evaluated on a de novo basis, giving consideration to all the evidence of record, including that received after the case was forwarded to the Board in 1993. Any additional development deemed necessary should be undertaken. If the benefit sought is not granted a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. M. CHEEK 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. 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).