Citation Nr: 0001837 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 93-19 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Esquire WITNESS AT HEARINGS ON APPEAL Appellant, her mother and father, and B.C. ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from June 3, 1975 to June 13, 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA) which held that new and material evidence had been received to reopen the appellant's claim subsequent to a February 1976 Board decision denying service connection for a back disability, but which denied the claim on the basis of all of the evidence of record. The veteran testified at a hearing before a traveling member of the Board in June 1993. The veteran elected to testify at a subsequent hearing before another traveling member of the Board in February 1997, however, as the first traveling member had left the Board. A Board decision was thereafter rendered in June 1997 which held that the evidence received since the Board's final February 1976 decision to deny service connection for a back disability was not new and material. Specifically, the Board held that the evidence submitted was cumulative and redundant of evidence previously of record, and that it did not present a reasonable possibility of a changed outcome. In this regard, the Board applied the test for materiality set forth in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The June 1997 Board decision was thereafter appealed to The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In April 1999, the Court remanded the case back to the Board holding that the Board applied, in part, the now invalid Colvin change-in-outcome test in determining whether evidence submitted was new and material. The Board notes that the veteran had argued in her brief for this appeal that the VA failed to consider a reasonably raised claim for a psychological disability. In this regard, the Court noted that the record does not indicate that such a claim has ever been adjudicated and no notice of disagreement concerning the issue of a psychological disability has been filed. As such, the Court determined that it did not have jurisdiction over this matter. Accordingly, the issue of entitlement to service connection for a psychological disability is referred to the RO for consideration as appropriate. FINDINGS OF FACT 1. In a February 1976 Board decision, entitlement to service connection for a back disability was denied. 2. Evidence submitted since the Board's February 1976 decision is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW The evidence received since the Board's final February 1976 decision to deny entitlement to service connection for a back disorder is not new and material; therefore, the veteran's claim may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she did not have a back disability prior to service, but has one as a result of service; in the alternative, she claims that if she had one before service, then it was aggravated by service. She argues that the presumption of soundness on service entrance examination supports her claim and results in entitlement. Consideration of the benefit of the doubt doctrine is requested. The law provides that in order for a service connection claim to be well grounded, there must be competent evidence of current disability, of incurrence or aggravation of a disease or injury in service, and of a nexus between the in-service injury or disease and the current disability. 38 U.S.C.A. 1110, 1131, 1153 (West 1991); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A veteran who served during a period of war or during peacetime service after December 31, 1946 is presumed to be in sound condition except for defects noted at entrance to service, or where there is clear and unmistakable evidence that the disability existed prior to service entrance. 38 U.S.C.A. 1111, 1137 (West 1991); 38 C.F.R. 3.304(b) (1999). "A preexisting injury or disease will be considered to have been aggravated by active ... service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." See 38 C.F.R. 3.306 (1999); cf. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991) ("flare-ups" of preexisting condition do not constitute aggravation if there is no increase in severity of underlying disability.) Corry v. Derwinski, 3 Vet. App. 231 (1992). The veteran had 11 days of active service before her active service discharge. She started receiving treatment for her disability after her second day of training, and no precipitating injury was reported at that time. At the time of the Board's February 1976 decision, there were service medical records contained in the file detailing the veteran's preservice history and in-service findings, and a service medical record containing an opinion based thereon. The opinion was not merely unenhanced history recorded in a medical record. See LeShore v. Brown, 8 Vet. App. 406 (1995). The medical opinion carefully considered the veteran's physical examination data and the detailed history of a pre-service back problem that the veteran had provided upon presenting for treatment just two days into training. This preservice history included the admission by the veteran that she had had limiting low back pain since age 12, that she had been told, prior to service, that she had a "curvature of the spine", and that she had first been treated for the disability 9 years beforehand. The service medical opinion, in light of all of that information, was that the veteran had chronic back pain and scoliosis that existed prior to service and was not aggravated by service. This medical opinion rebutting the presumption of soundness on service entrance satisfies Bagby v. Derwinski, 1 Vet. App 225 (1991), wherein the Court held that since data obtained for clinical purposes during service unequivocally established the preservice existence of the disability, it rebutted the presumption of soundness on service entrance. The opinion likewise serves as competent evidence of no in- service aggravation, given the fact that the opinion considered the preservice history and symptoms, the quickness of symptoms so soon after service entrance, what prompted those symptoms, and what the symptoms and the physical findings were at the time of treatment. See also 38 C.F.R. 3.303(c) (1999). At the time of the Board's February 1976 decision, in addition to the service medical records, there was an August to September 1975 VA hospital discharge summary, wherein it was indicated that the veteran had complained that her hip had been out for 3 weeks, and wherein it was reported that she had indicated a history of right leg and low back pain since age 12, more so since age 18, and her history that her back had gone out shortly after entering the Air Force. The hospital discharge summary diagnosed idiopathic low back disease and did not indicate that a low back disability had had its onset in service or had become chronically worse in service. There was not any competent medical evidence of record opining that there was an in-service onset of a low back disability, or that there was an in-service aggravation (chronic increase in severity beyond that which would have occurred naturally; see 38 U.S.C.A. 1153 (West 1991) and Hunt, supra) of a low back disability that preexisted service. Since the Board's decision, this evidentiary status has not changed, and the Board is not permitted to make medical conclusions for which there is no support in the record. Colvin v. Derwinski, 1 Vet. App 171 (1991). As noted above, the Board's February 1976 decision denying service connection for a back disability is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1105 (1999). When a claim has been disallowed by the Board, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 20.1105 (1999). According to the Court, a decision refusing, because of a lack of new and material evidence, to reopen a previously and finally disallowed claim, after having considered newly presented evidence, is another "disallowance" of a claim (the claim to reopen) because that claim is not being "allowed." Accordingly, the Court held that sections 5108, 7104(b), and 7105(c) require that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been 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 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 regard to the term "new and material," the Court has stated that "new" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In order for evidence to be "material," in Colvin the Court stated that "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." In Evans, the Court expounded upon the "two-step analysis" which must be conducted under 38 U.S.C.A. § 5108 (West 1991) as set forth in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991) in order to determine if new and material evidence has been submitted. First, the Court in Evans stated that it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material when "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board notes that the last final disallowance of record was the February 1976 Board decision. Second, if the evidence is new and material, the Board must reopen the claim and review all the evidence of record to determine the outcome of the claim on the merits. The first step involves three questions: (1) Is the newly presented evidence "new" (not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record)? (2) Is it "probative" of the issues at hand? (3) If it is new and probative, then, in light of all of the evidence of record, is there a reasonable possibility that the outcome of the claim on the merits would be changed? Recently, the United States Court of Appeals for the Federal Circuit, in Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998) issued directives to be followed in new and material evidence cases. Specifically, it was stated in Hodge that the test created by the Court in Colvin was more restrictive than required by 38 C.F.R. § 3.156(a) (1999). The Colvin test, as noted above, requires that, in order to reopen a previously denied claim, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin at 174. Whereas 38 C.F.R. § 3.156(a) (1999) requires that, to reopen a claim, evidence submitted must be "so significant that it must be considered in order to fairly decide the merits of the claim." In Colvin, the United States Court of Appeals for the Federal Circuit stated that the Court "impermissibly replaced the agency's judgment with its own" and "imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans' benefits." Colvin was therefore specifically overruled by the U.S. Court of Appeals for the Federal Circuit in Hodge. The United States Court of Appeals for the Federal Circuit in Hodge pointed out that the question of materiality was not to require that the veteran demonstrate that the new evidence would probably change the outcome of the claim, but rather to make the record complete. The United States Court of Appeals for the Federal Circuit in Hodge agreed with the Court that not every piece of new evidence is "material," but expressed concern that some new evidence might well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability even where it will not eventually convince the Board to alter the prior final rating decision. The United States Court of Appeals for the Federal Circuit in Hodge further emphasized the need for a complete and accurate record. Thus, the Board observes that the United States Court of Appeals for the Federal Circuit in Hodge directs that the parameters of the definition of "new and material" evidence as written in 38 C.F.R. § 3.156(a) (1999) be followed as opposed to the Court's interpretation in Colvin. Inasmuch as the definition of "new" was not addressed by the United States Court of Appeals for the Federal Circuit, it appears that guidance in that regard provided by the Court is consistent with the controlling regulation. However, the RO and the Board should no longer require that new evidence create a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome to reopen the claim. Rather, the RO and the Board should only require that new evidence is so significant that it must be considered in order to fairly decide the merits of the claim to reopen the claim. The Board notes that since the Board's prior decision, VA medical records from shortly after service have been received, as have more recent private and VA medical records. Additional August 1975 VA medical records were obtained. The history in them includes a statement from the veteran that she had used large quantities of Darvon for several years because of menstrual and back pain. Clinically, no significant scoliosis was present. The initial impression was lumbosacral strain. An August 1975 VA radiographic report indicates that a slight rotary scoliotic deformity was noted in the lumbar spine. Additional VA medical records of treatment which were not previously of record, from September 1975, reveal that she indicated that she had had mild discomfort in her low back at age 12, and that she had rested for 2 weeks after service discharge and then had spent the summer in strenuous physical activity without her back bothering her. In December 1975, the VA treated the veteran for lumbosacral sprain. She had radiographic evidence of scoliosis per VA X- ray in January 1976, and she was treated for possible herniated nucleus pulposus from May to June 1976. At that time, she had reported the in-service history plus a history of spending some time in the summer of 1975 riding horseback with resultant worsening of back pain, and that while lifting a heavy object in August 1975, the pain became intense and the right hip and leg pain had become nearly constant since then, with intermittent paresthesias of the outer aspect of the right foot. A November 1981 VA hospital discharge summary indicates that the veteran reported having mild back pain intermittently as a child, but that marching in boot camp had caused a severe exacerbation of the difficulty, with some radiation, and that it had all been progressively worse since 1975. No medical diagnosis relating disability to service, including by way of aggravation, was furnished. These records are cumulative of evidence which was previously considered, to the extent that evidence of record had previously shown scoliosis and low back pain in service. Additionally, they are not material, in the sense that there is no medical opinion in them relating low back pain and scoliosis to any incident of service origin, including by way of aggravation, or relating any other low back disability to service, including by way of incurrence or aggravation. The fact that possible other low back disabilities were shown shortly after service, with possible intercurrent injuries after service, does not suffice to show a nexus between such low back disability and what occurred in service. The Board may not infer such nexus. Colvin. The showing of a nexus between disability and service, including by way of aggravation, was lacking at the time of the Board's February 1976 decision, and that nexus still is not demonstrated by competent medical evidence. Therefore, per Evans v. Brown, 9 Vet. App. 273 (1996) (requires that for a claim to be reopened after a prior final denial, there must be evidence submitted which augments the record such that all necessary elements at the time of the last final decision are present), this is not new and material evidence. There is no competent medical evidence relating any other back disability to the veteran's period of service, or indicating that the low back pain and scoliosis that existed prior to service chronically increased in severity in or as a result of service. The Board also notes that since its last decision, a May 1992 letter from M.A.M., M.D. has been received. It indicates that he treated the veteran from 1972 to 1975, and that his records do not contain any reference to a back ailment or injury of the veteran, and that he had no personal knowledge of one. This evidence is not new and material evidence, as it is not an opinion as to the in- service onset or chronic increase in severity of a low back disability. Evans. A close reading of Dr. M.'s letter reveals that it is not an opinion that the veteran did not have a preexisting back disability either, so it is not sufficient to reopen the claim. The claim at the time of the Board's prior decision already had a medical opinion that there was low back pain and scoliosis clearly and unmistakably existing prior to service. Logically, the most that can be gleaned from this letter is that the veteran did not have a low back disability that was treated by Dr. M. prior to service. Furthermore, in light of Tirpak, this evidence is not probative or new and material. Additionally, there have been two hearings by traveling members of the Board in June 1993 and February 1997. The Transcripts of the first (T.-1) and second (T.-2) hearings contain testimony from the veteran, her mother and father, and B.C. as to the appellant's activities, symptoms, history, diagnosis, clinical course, and etiology of disability before, during, and/or after service. See, e.g., T.-1 at 4 and 6-7, and T.-2 at 3-14, and at 18-19. This evidence may not be considered to be new and material evidence, however, per Evans, as what was lacking previously was a medical opinion relating the onset or chronic increase in the severity of a low back disability to service, and testimony from laypersons as to etiology or date of onset of disability is not considered to be of any probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). Testimony as to symptoms, history, and activities before, during, and/or after service, moreover, is not medical evidence as to etiology, diagnosis, date of onset of a disability, or date of chronic worsening of a disability. Grottveit; LeShore. A medical opinion based upon an examination of preservice, in- service, and immediately after service medical records of back treatment and diagnosis would be. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). There have also been received statements dated in September 1992 from, F.D.C. and W.R.P., who are school administrative officials, indicating activities that the appellant performed before service and the fact that high school records did not indicate that any medical disabilities were ever recognized or treated for the veteran. This is not new and material evidence, as it is not medical evidence opining on the onset or chronic increase in severity in service of a low back disability. Evans. Moreover, indirectly, it is no more than supposition that a low back disability did not exist prior to service. Tirpak; Colvin. It can not be concluded from it that a low back disability did not exist prior to service. Another statement, from the veteran's brother, dated in September 1992, also describes the veteran's preservice activities and her post-service symptoms and course. This evidence, once again, is not a medical opinion as to the onset or chronic increase in severity of a low back disability in service, so it is not new and material evidence and, as with the evidence above, the Board cannot conclude from it that no disability pre-existed service. Espiritu; Grottveit; Tirpak; Colvin. A September 1992 statement from the veteran's former school nurse from January 1966 through May 1970 states that the high school records do not show, and that the former nurse had no personal knowledge of, the veteran having a back ailment or injury during that time. This evidence is not new and material evidence, as it is not a medical opinion as to the in-service onset or chronic increase in severity of a low back disability. Evans. It does not prove that a back disability did not preexist service. All it states is that the high school and she had no record or recollection of one. No more can be concluded from it. Tirpak, Colvin. There have also been received a January 1994 private medical record from V.P.R., Sr., M.D., and a September 1996 private medical record from H.B.S., M.D., as well as VA medical records post-dating the Board's decision, indicating, respectively, a history of back problems before March 1989 and a history of back problems in the service. However, medical evidence containing history of back problems in service was previously considered by the Board (an August to September 1975 VA hospital discharge summary), so this is not new, but cumulative evidence. Additionally, history, unenhanced by medical opinion, does not rise to the level of medical opinion, merely because it is reported in a medical record, LeShore, so the August 1975 history was not material evidence when it was before the Board previously and this more recent evidence is not material evidence now. In summary, after reviewing the evidence submitted since the Board's February 1976 decision, the Board concludes that the evidence submitted in connection with the application to reopen is not new and material, so the claim may not be reopened. The only competent medical evidence that considers history and clinical findings to render an opinion on whether or not low back pain and scoliosis was incurred or aggravated in service is the service medical opinion, rendered at the time of treatment, and there is no competent medical opinion relating other back disability first shown after service to any incident of service origin, including by way of aggravation. As such, this evidence is not relevant and is not probative to the issue at hand. Thus, this evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1999). While the RO purported to reopen the claim based upon its conclusion that there had been new and material evidence, its conclusion was incorrect, and it is the Board's duty to dispose of the case on the correct basis under the facts and law being considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As such, the Board concludes that the RO should not have reopened the claim, as new and material evidence to reopen has not been received. The Board notes that in Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the process for reopening claims under the Federal Circuit's holding in Hodge, consists of three steps: the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) (1999); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well-grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991); and third, if the claim is well-grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. In this case, the Board has determined that the under the first step, the veteran's claim may not be reopened. As such, the second two steps are not reached. Given the fact that the RO purported to reopen the claim and review it de novo, whereas the Board is holding that new and material evidence has not been received to reopen it, the Board must consider whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that there has been no such prejudice. The RO provided the veteran with information on finality of prior rating decisions, and as to the requirement to submit new and material evidence to reopen a claim. Additionally, and most importantly, the RO, by purporting to reopen the veteran's claim and adjudicate it again on the merits, accorded the veteran's claim more consideration than it warranted. Edenfield v. Brown, 8 Vet. App. 384 (1995), so the Board's decision does not prejudice the veteran. ORDER The appeal is denied. D. C. Spickler Member, Board of Veterans' Appeals