Citation Nr: 0006093 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-23 903A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a back disability and, if so, whether the claim is well grounded. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The veteran INTRODUCTION The veteran had verified service from May 1944 to May 1946 in the United States Navy and from January 1947 to June 1947 in the United States Army. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1997 notification of the Department of Veterans Affairs (VA) Regional Office (RO), located in Phoenix, Arizona, which informed the veteran that he did not submit new and material evidence in order to reopen his claim for service connection for a back disability. In connection with his subsequent appeal, the veteran testified before a member of the Board; a transcript of that hearing is associated with the claims file. By way of history, the Board notes that the record reflects final denials of the veteran's claim in April 1995, August 1950, and July 1946. The RO, in September 1997, found that the veteran did submit new and material evidence to warrant reopening the claim. However, the Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 7104(b), 5108; see Barnett v. Brown, 8 Vet. App. 1 (1995). Accordingly, the Board will address the issue of entitlement to service connection for a back disability on a finality basis. Further, since the last final denial on any basis was that of the April 1995 rating decision, the Board will consider whether new and material evidence has been submitted since that action. See Evans v. Brown, 9 Vet. App. 273 (1996) (new and material evidence must be submitted since the time that the claim was finally disallowed on any basis). FINDINGS OF FACT 1. The RO, in an April 1995 final decision, denied entitlement to service connection for a back disability. 2. The evidence submitted subsequent to the April 1995 RO decision does bear directly and substantially upon the specific matter under consideration, and, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 3. A June 1997 medical statement from a private doctor relates a back disability to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening the veteran's claim for service connection for a back disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The veteran's claim of entitlement to service connection for a back disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Regulations Service Connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). New and Material Evidence In general, RO decisions which are unappealed become final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108; Hickson v. West, 12 Vet. App. 247 (1999). New and material evidence is defined as 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999) the Court held that the prior holdings in Justus and Evans that the evidence is presumed to be credible was not altered by the Federal Circuit decision in Hodge. In Elkins v. West, 12 Vet. App. 209 (1999), the Court set out that in materiality cases, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (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, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Winters v. West, 12 Vet. App. 203 (1999). Factual Background The veteran had service from May 1944 to May 1946 in the United States Navy and from January 1947 to June 1947 in the United States Army. At the time of the entry examination of April 1944, slight dorsal kyphosis was noted to be a defect. On separation in May 1946, no pertinent defect was noted in the "Termination of Health Record." Clinical examination of the spine was normal. In his May 1946 application for compensation benefits, the veteran reported that he sustained a back injury in August 1944 while loading ammunition. A May 1946 rating decision denied service connection for a back disability as not shown by the evidence. When the veteran underwent an entry examination in January 1947, the musculoskeletal system was normal on clinical evaluation. The veteran was hospitalized in February 1947 for pain and a tired feeling in his midback. The veteran stated that he always had a weak back with poor muscles. He stated that back pain was more prominent when he was in the Navy and doing heavy lifting. He related that he still had back trouble when he was discharged from the Navy. The final diagnoses were spina bifida (vertebral arch, fusion defect) and osteochondrosis of the thoracic vertebrae, with epiphysitis. An X-ray of the lumbosacral spine in March 1947 was negative for bone or joint pathology; there was spina bifida of S-1. It was noted that previous films had shown an old healed juvenile epiphysitis of the thoracic vertebrae. A body cast was applied for relief of symptoms due to juvenile epiphysitis. The final progress note dated in May 1947 indicated that the veteran was to be returned to civilian life without the likelihood of recurrence of incapacitating symptoms. The veteran's service separation examination dated in May 1947 indicates that the veteran complained of a backache in the thoracic region since loading ammunition during his service in the Navy in Boston in August 1944. On clinical examination, no musculoskeletal defects were found. In July 1948, an examination was conducted in conjunction with an application from the veteran for hospital treatment or domiciliary care. Past history included the veteran injuring his back in August 1944 when lifting ammunition on a ship. At the time of the injury, the veteran reportedly had a sudden pain in the back. He complained that the symptoms had worsened as of late. Physical findings included muscle spasm of the right erector spinal muscle in the lumbar region. Further evaluation was recommended. In December 1949, the veteran was hospitalized at a VA facility for apophysitis of the dorsal vertebrae. The veteran was afforded a VA examination in July and August 1950. The veteran complained of recurrent back discomfort, mainly in the upper back. A VA X-ray dated in July 1950 showed the same findings from November 1949 - a right-sided scoliosis, in its midsegment, and an increased kyphosis. The bodies of T9, 10, and 11 showed moderate wedging; a bony bridge was noted between T10-11. The lumbar and sacroiliac were normally outlined and well preserved. The diagnosis was history of back injury, clinically quiescent. A rating decision dated in August 1950 denied service connection for a back condition on the basis that there was no record of injury in service or any history which would aggravate the congenital condition more than the normal progress. Spina bifida and osteochondrosis of the thoracic vertebrae with epiphysitis were identified as constitutional or developmental abnormalities. Other service examinations dated in January 1952, December 1955, August 1958 and May 1964 were negative for back abnormalities. There were no pertinent complaints reported in April 1958, August 1958 and May 1964. Air Force Base records dated in February 1960 indicate that the veteran hurt his back bowling, and he reported midthoracic spinal pain. He had increased lumbar lordosis and kyphosis all of his life. There was tenderness about T5- 6, especially on extension of the scapula. An X-ray was negative except for old kyphoscoliosis. In March 1960, an X- ray showed wedging of T8, 9, 10 and 11 which appeared old and associated with epiphyseal roughening. In addition, there was a very minimal lateral curvature, all felt to be consistent with a diagnosis of juvenile epiphysitis, although further evaluation was advised. The service report of examination dated in September 1963 contains a clinical evaluation of kyphoscoliosis. It was noted that the kyphoscoliosis was congenital and asymptomatic. It was not considered to be of a degree to interfere with wearing of military gear or routine work. In September 1963, the veteran was to be evaluated for the degree of kyphoscoliosis for flying purposes. A service department X-ray demonstrated minimal scoliotic deformity of the thoracic spine with the convexity present in the midthoracic region and directed toward the right. In the lower thoracic region there was an even more minimal convexity to the left. The lateral film showed a kyphotic curve normally present in the upper spine to be present in the lower thoracic region with the apex of the kyphosis at about T-9 level. There was only minimal anterior wedging of the body of T-9 but some degenerative changes were noted about the lower thoracic vertebral bodies anteriorly. In the lumbosacral region, there was a slight exaggeration of the usual lordotic curve present and the lumbosacral angle was rather acute. None of the defects appeared to be disqualifying for flying duties if the veteran were asymptomatic with the changes. The veteran was afforded a VA examination in September 1994. The veteran reported that he first developed back pain while loading a ship in 1944, at 17 years of age. The impression was degenerative joint disease of the lumbar spine. An April 1995 rating decision denied service connection for a back disability on the basis that spina bifida and osteochondrosis of the thoracic vertebrae with epiphysitis were constitutional or developmental abnormalities that existed prior to service entry and were not supported by evidence as being aggravated during service. Regarding a low back disorder, the claim was denied on the basis that it was not demonstrated that a chronic low back disorder was incurred in or aggravated by military service. Since the April 1995 rating decision, the veteran submitted duplicate copies of his service medical records. He also submitted copies of service administrative or personnel records and post-service pharmacy receipts. A private medical report dated in February 1997 indicates that the veteran complained of cervical and mild thoracic spine pain. An X-ray of the cervical spine showed a loss of the normal cervical lordosis; marked left cervical subluxation at C4 ant T1; narrowed disc spaces between C7-T1; and foraminal encroachment at C7-T1. A private medical consultation report dated in May 1997 shows that the veteran's chief complaint was back pain. By the veteran's report, it was noted that the veteran was injured in 1944 while loading ammunition (weighing 60-90 pounds) onto a naval ship. The veteran claimed that he suffered severe thoracic and lumbar pain, without distal neuropathy. Throughout his naval career, he experienced similar painful episodes with bending forward, prolonged standing, prolonged marching and lifting weights above 25 pounds. It was noted that the veteran suffered in silence until his discharge from the military. The veteran reenlisted into service and there reinjured his back in 1947, following which he was placed in a cast for about 2 months. The pertinent impression was chronic thoracic and lumbar pain, etiology uncertain. In an addendum, the examiner stated that he found it most curious that the veteran was first injured while on active duty, treated and then discharged in good condition. He was later given another medical examination and determined fit to joint the Army, again treated for a back injury while on active duty, and was ultimately discharged for medical reasons. All the while he was been refused any service-connected disability for his symptoms. The examiner opined that he seemed to be missing something since none of that seemed either just or logical. It was recommended to the veteran to search for his old military records and consult his congressional representative for assistance. A letter dated in June 1997 from M.D.J., D.O., indicates that she reviewed the veteran's military records that relate a problem since 1944 while loading ammunition onto a naval ship. The veteran was hospitalized 3 times during his military service for this back pain and was in some kind of partial body cast due to back problems while he was in the military. He was also discharged because of physical problems. It was recommended that the veteran should be considered for disability due to his chronic back problems. The opinion was that even if the back problems were congenital in nature, they were definitely aggravated by the military since the veteran had to be hospitalized 3 times. She added that the veteran had had continuing pain which was definitely a military related aggravation, if not a military cause for the back pain. The veteran had radiculopathy, herniated nucleus pulposus, degenerative joint disease, spondylosis, and myofascial pain syndrome. A letter dated in October 1997 from the veteran's sister is to the effect that the veteran had no known health problems prior to his joining the service in 1944. The veteran testified at a personal hearing at the RO in October 1997. The veteran stated that he had a third period of service in the Air Force about 12-14 years after he was discharged from the Army. He stated that he did not believe that he had told them of his back problems. He recalled that he did not have back problems during the military service with the Air Force. Hearing transcript (T.), 3. The veteran testified at a personal hearing before a member of the Board in February 2000. The veteran indicated that he was seeking service connection for an injury that occurred during his service in the Navy. It was pointed out that the Army subsequently discharged him as not being physically qualified. T. 3. He testified that he did not finish 6 weeks of basic training when he was in the Army because he was working in a coal pile and hurt his back again. T. 10. The veteran recalled being treated by a doctor in 1947-48, but he could not remember the name of the provider. T. 14. He also had treatment at a VA facility called Cherry Point in 1950. T. 15. Between 1950 and 1980, he did not have medical treatment. By 1980, he sought treatment at a community hospital, which may since have changed names. T. 18. Analysis--Materiality The last final decision of record is the RO's April 1995 rating decision, which denied the veteran's claim. The basis for such denial was that spina bifida and osteochondrosis of the thoracic vertebrae with epiphysitis were constitutional or developmental abnormalities that existed prior to service entry and were not supported by evidence as being aggravated during service. Regarding a low back disorder, the claim was denied on the basis that it was not demonstrated that a chronic low back disorder was incurred in or aggravated by military service. Since that time, the veteran submitted a medical opinion dated in June 1997 by a competent professional who linked the veteran's current back disability to events claimed by the veteran to have occurred in service. As such, the Board finds that the newly submitted opinion relating the back disorder to events of service is so significant that it must be considered in order to fairly decide the merits of the claim. Based on such the veteran's claim is reopened. Analysis-Well groundedness Having reopened the claim the Board must next determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). In Elkins v. West, 12 Vet. App. 209 (1999), "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." The existing record contains a diagnosis of a back disability related by competent medical personnel to incidents of service as reported by the veteran. As such, the claim is well grounded. 38 U.S.C.A. § 5107(a); see Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. The claim of entitlement to service connection for a back disability is well grounded. REMAND As the veteran's claim of entitlement to service connection for a back disability is well-grounded, VA has a duty to assist him with his claim. 38 U.S.C.A. § 5107; Peters v. Brown, 6 Vet. App. 540, 542 (1994); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Initially, the Board notes that the veteran testified at his October 1997 hearing that he had a third period of service in the Air Force between about 1961 to 1964. T. 4-5. Although records associated with that service have been obtained, the exact dates of service, as well as the type of service, have yet to be verified. The RO sent the veteran NA Form 13075 for his completion in January 1998. The supplemental statement of the case, dated in May 1999, documents that veteran was requested to complete this form [in order to obtain specific service hospitalization records] and that the veteran had failed to respond to the request. Following the February 2000 hearing, the veteran and his representative completed the NA Form 13075. This form should be submitted to the National Personnel Records Center. The veteran testified at his February 2000 hearing that he was treated for his back at a VA facility in 1950-1951. T. 15. VA is held to have constructive notice of documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. Bell v. Derwinski, 2 Vet. App. 611 (1992). As VA is on notice that additional pertinent medical records may exist, the case must be remanded for further development on this basis. Accordingly, this case is returned to the RO for the following: 1. The RO should attempt to verify the dates and types of service that the veteran had in the Air Force from about 1961-1965. The RO should also take appropriate action with regard to the NA Form 13075, which was completed by the veteran in February 2000. 2. The RO should also attempt to obtain the VA treatment records dated from about 1950-1951 that were described by the veteran at his February 2000 hearing. T. 15. 3. After the development requested above has been obtained to the extent possible, the RO should provide the claims file to an appropriate specialist in order to obtain an opinion regarding the etiology of the veteran's back disability. The claims folder and a copy of this remand MUST be made available to the specialist for review. Specifically, the examiner should provide responses to the following: a. Identify all current back disabilities. What is the date of onset of each disorder identified? b. If the onset of the disorders listed in question #1 was before service, did such disorder increase in severity during any period of service? c. If a disorder did increase in severity in service, was the increase in severity clearly and unmistakably due to natural progression of the disorder? d. If a disorder is found to have occurred after service, is such disorder causally related to any incident during service? If it is determined by the specialist that an additional examination is warranted, the RO should schedule the examination for the veteran and explain the impact of noncompliance with the examination request under 38 C.F.R. § 3.655. The examiner or specialist should provide a written report and describe the rationale for all opinions reached. 4. Thereafter, the RO should review the record and ensure that all the above actions have been requested or completed, to the extent possible. The RO is advised that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). After any indicated corrective action has been completed, the RO should again review the record and re-adjudicate the veteran's claim of entitlement to service connection for a back disability. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 unless otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. M. Sabulsky Member, Board of Veterans' Appeals