BVA9500299 DOCKET NO. 93-06 319 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been submitted such as to reopen a claim for entitlement to service connection for residuals of a back and left shoulder injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Mr. [redacted] ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The appellant had military service from November 1956 to May 1957. He was on active duty for training with the Minnesota Army National Guard from October 22, 1960, to December 23, 1960. This appeal arises from a February 1992 rating decision by the Department of Veterans Affairs (VA), St. Paul, Minnesota, Regional Office (RO), which found that the appellant had not submitted new and material evidence such as to warrant reopening of his claim seeking entitlement to service connection for residuals of a back and shoulder injury. The issue of entitlement to service connection for a right shoulder disability was included in the statement of the case provided to the appellant in March 1992. At his personal hearing on appeal in August 1992 and in correspondence received from the appellant subsequent thereto, the appellant has expressly indicated that he was not seeking entitlement to service connection for a right shoulder injury. The issue, thus, has been effectively withdrawn from appellate consideration and will not be addressed herein. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to service connection for residuals of a back and left shoulder injury as he sustained an injury to his back and left shoulder in service and has since had chronic residual disability. 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 appellant'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 such as to reopen the claim seeking entitlement to service connection for residuals of a back and left shoulder injury. FINDINGS OF FACT 1. Service connection for residuals of a back and left shoulder injury was denied by a rating decision of the RO in May 1985; an appeal to this decision was not perfected by the timely filing of a substantive appeal. 2. Evidence received since the May 1985 rating decision denying service connection for residuals of a back and left shoulder injury consists of post service clinical data, including a report of examination provided to the appellant in January 1992, lay statements and testimony offered by the appellant describing the injury in service which he believes led to his current back and shoulder problems as well as treatment provided to him subsequent to his injury. This evidence was not previously on file and is relevant and probative of the issue. CONCLUSION OF LAW The May 1985 rating decision denying service connection for back and shoulder injury is final; however, new and material evidence has been submitted to reopen the claim for service connection for these disorders. 38 U.S.C.A. §§ 1131, 5107, 5108, 7105(d) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for residuals of a back and shoulder injury was denied by the RO in a decision dated in May 1985 on the basis that a back disorder was not shown to have been treated in service and that a left shoulder injury that was treated therein resolved thereafter without chronic residual disability. The relevant evidence of record at the time consisted of the appellant's service medical records to include a record of medical care provided during his period of active duty for training in the fall of 1960 and private treatment records compiled between April 1961 and November 1984. The appellant's service medical records reveal no evidence of an injury to the appellant's back. A treatment record, however, dated in November 1960 did record complaints of an injury to the appellant’s left shoulder resulting from a fall. Subsequent X-rays of the left shoulder were interpreted by his service physicians to be negative. Muscle and tendon strain was the ultimate diagnostic impression. The subsequent clinical record consisting of a periodic medical examination provided to the appellant by his service department in January 1963 and the aforementioned private clinical treatment records fail to evidence any continuing complaints or residuals of a left shoulder injury. These records, however, did reflect that the appellant sustained a neck injury in 1973 as a result of an automobile accident and had been receiving treatment for low back pain, indicated by a private physician to be possibly related to a lumbar disc herniation, since late 1980. While the appellant filed a timely notice of disagreement with the May 1985 determination, he did not perfect an appeal by submitting a substantive appeal either within 60 days of the issuance of a statement of the case or within the remainder of the one-year period of mailing of the notice of the adverse determination. Under appropriate law and regulations, the prior decision is final and the veteran's claim may not be reopened absent the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(d); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(b) (1993). 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 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 order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 191 (1991). Proceeding directly to the question regarding the newness and materiality of the evidence submitted by the appellant to reopen his claim, we observe that the evidence is "new" as it reflects the current status of the appellant's back and shoulder disorders and contains testimony of the appellant and his friend, [redacted], as well as statements by Mr. [redacted] and another acquaintance of the appellant not heretofore of record. With respect to the materiality of this evidence, the Board observes that the sworn testimony provided by the appellant and his witness in August 1992 includes a report by the appellant that he wore a sling for his left arm following his back and shoulder injury in service and throughout the remainder of his tour of active duty for training and, furthermore, that he was seen by several private physicians subsequent to service who were consulted with respect to his injury in service and/or who provided limited treatment therefor during the 1970's and 1980's. The United States Court of Veterans Appeals in Justus v. Principi, 3 Vet.App. 510 (1992) indicated that when evaluating whether or not evidence is new and material, the credibility of the evidence is to be presumed for the purpose of determining whether a claim should be reopened. In this case, the appellant alleges that he has a back and neck disability which originated during a period of service. He has testified that, subsequent to his injury in service, symptoms related to his alleged inservice injury continued and resulted in physical therapy and chiropractic treatment being rendered to him over a span of many years by private professionals. Private clinical data he has submitted lend some support to his assertion of current injury residuals stemming from a past trauma. In essence, the additional evidence, especially the testimony presented in August 1992, when presumed to be credible and viewed in the context of all the evidence, could reasonably change the outcome. See Colvin v. Derwinski, 1 Vet.App. 171 (1991) and Smith v. Derwinski, 1 Vet.App. 178 (1991). Accordingly, de novo consideration of the appellant's claim by the RO based on the review of all the evidentiary data both old and new is warranted. Further mention of this matter is made below. ORDER The appeal is granted to the extent that the claim of entitlement to service connection for residuals of a back and left shoulder injury is reopened, new and material evidence having been submitted, subject to the additional actions indicated below. REMAND In view of the Board's finding that the appellant's claim is reopened, the RO must now consider the reopened claim based on a review of all the evidence, both old and new. Further appellate review of the claim will be postponed pending such review. Accordingly, the reopened claim is REMANDED for appropriate action, consistent with the Board's holding that the claim is reopened. See Bernard v. Brown, 4 Vet.App. 384, (1993). Furthermore, consistent with the VA's duty to assist the appellant in development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) and Ivey v. Derwinski, 2 Vet.App. 320 (1992), the case is also REMANDED to the RO for additional development. 1. The appellant should be requested to provide detailed information with respect to any service which he has had as a member of the Army National Guard. He should specifically denote all periods of active duty for training and inactive duty for training and the units to which he was assigned. All service medical records in his possession relative to his service should be submitted. 2. Based on the foregoing, the service department should be requested to verify all periods of the appellant's service, including periods of active duty for training and inactive duty for training. The service department should also be asked to furnish all service medical records not heretofore made of record. 3. The RO should then contact the appellant to determine with some specificity, the nature and extent of any relevant treatment he has received for residuals of a back and neck injury subsequent to service. He should be requested to provide names of the individuals and/or medical facilities which provided treatment, dates and their location, if known. The RO should specifically request that the appellant identify the addresses of Doctors Arney, Gilbertson and Ammoth, and the dates he was treated by each doctor. If the appellant provides sufficient information concerning any relevant treatment to include any fitness for work examinations, the RO should obtain the necessary signed release of medical information forms and contact each physician, hospital treatment center, or employer specified by the appellant to obtain any and all medical or treatment records or reports relevant to the above mentioned claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records prove to be unobtainable by the RO, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1993). 4. The RO should obtain with the appellant's assistance information regarding the December 1973 automobile accident recorded in the private treatment records received from the appellant in February 1985. He should be asked to identify treatment provided to him relative thereto and be asked whether or not he received any monetary settlement and/or judgment due to personal injury sustained as a result of this event. Documentation, including clinical records supporting any claim, arising out of this accident should be obtained by the RO for inclusion in the appellant's claims folder. When the above development has been accomplished, the case should again be reviewed by the RO. In the event the benefit applied for is not granted or any action taken is adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the appellant until he is notified. The purpose of this REMAND is to ensure due process of law and procure clarifying data. N. R. ROBIN 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) (1993).