BVA9500509 DOCKET NO. 93-07 612 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.M. Flatley, Counsel INTRODUCTION The veteran had active service from November 1942 to December 1945. Entitlement to service connection for back pathology was denied in an April 1949 rating decision. Notice of that determination was transmitted to him at his last address of record in April 1949 and May 1949. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that entitlement to service connection for a back disability is warranted on the basis of in- service treatment and the continuation of symptomatology thereafter. 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 the claim of service connection for the disorder at issue is not reopened. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Entitlement to service connection for a back disability was denied in an April 1949 rating decision; no appeal was perfected therefrom. 3. Evidence submitted since the April 1949 rating decision primarily includes findings recorded many years after service regarding back disability; the newly submitted evidence does not create a reasonable possibility of a change in the outcome of the veteran's case. CONCLUSIONS OF LAW 1. Evidence received since the April 1949 denial of service connection for a back disability is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a)(1993). 2. The April 1949 decision which denied entitlement to service connection for a back disability is a final determination, and the claim may not be reopened. 38 U.S.C.A. §§ 5108, 7105(c)(West 1991); 38 C.F.R. § 3.104(a)(1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent law and regulations in this case provide that entitlement to service connection may be allowed for a disability which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. § 1110 (West 1991). Determinations of service connection are based on a review of the entire evidence of record. 38 C.F.R. § 3.303(1993). As noted above, entitlement to service connection for back pathology was denied in April 1949 and no appeal was perfected from the rating action. An unappealed determination is final if a notice of disagreement is not filed within the time limit required by statute and generally may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). A prior final determination may be reopened and reviewed, however, upon the submission of new and material evidence. 38 U.S.C.A. § 5108, 7105(c). Applicable law and regulations also provide that the Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In cases involving the issue of whether new and material evidence has been submitted to reopen a claim, the Court has held that the duty to assist may be triggered, under appropriate circumstances, despite a finding that the veteran has not submitted new and material evidence. Counts v. Brown, 6 Vet.App. 473, 476 (1994). In this case, we note that the veteran's service medical records have been obtained and available post- service private and VA clinical data have been associated with his claims folder. We also point out that in a January 1991 statement in support of claim, the veteran referenced an enclosed letter from a private physician, and reported that "[t]he rest of the doctors that had treated me are all dead now, except for the treatments I had at the V.A...." Further, at his personal hearing in October 1992, the veteran reported that the physicians from whom he received treatment for a back disability many years ago had been deceased for many years and that he did not "know what happened" to documents associated with such treatment. Transcript (T.) at 4, 5. In this respect, the Court has held that, if the veteran wishes to have documents considered by the VA which are not in the possession of the Federal Government, he must furnish such records or request the VA to obtain them, provide an appropriate release for such information, and demonstrate how the documents are relevant to the claim. Counts at 479. In light of the inference made by the veteran that private medical evidence proximate to his separation from service is not available, and the absence of further reference to such records, the Board concludes that application of the VA's duty to assist under the circumstances of this case is moot, as it is neither contended nor indicated otherwise, in light of presentations made on appeal, that the such duty would impact on the veteran's case. Any further attempt to develop the record in this regard, therefore, is not warranted. Residuals Of A Back Injury When the regional office denied the veteran's claim of service connection for back pathology in April 1949, the evidence of record consisted of the veteran's service medical records, including a November 1944 entry which reflects a diagnosis of back sprain, moderately severe, incurred while at work in November 1944. On examination in December 1945 for separation from service, no pertinent complaint or finding was made. Post-service evidence considered by the regional office in 1949 includes a report of a social history dated in June 1948 associated with a period of hospitalization at a VA facility, which notes that the veteran had no history of injury or accidents. It was noted that several days prior to the veteran's VA hospital admission, he experienced symptomatology including pain on the left side of the back extending down the left leg. In a lay statement dated in October 1948, it was noted that earlier that year, the veteran had experienced pain and was unable to remain in any position for "more than a moment or two." The exact nature of the veteran's pain was not identified. After several days of such pain, the veteran was reportedly hospitalized on an emergency basis. In a report of the veteran's October 1948 hospitalization, the veteran's history of hospitalization the previous June for symptomatology including severe pain in the left side of the back, with aching and numbness of the lower extremities, was documented. The report indicates that no back pathology was identified at that time. On admission in October 1948, physical examination revealed no pertinent abnormality. No pertinent diagnosis was made. On VA examination in December 1948, it was noted that the veteran had received no treatment from a private physician. The veteran reported a history of a back injury in service when he fell and twisted his back and complained of stiffness in the back, particularly in damp weather. On examination, moderate spasticity of the lumbar musculature was found. The veteran stood with the pelvis tilted to the right and with the left shoulder on a higher level than the right. The remainder of the examination revealed essentially unremarkable findings. An x-ray study of the lumbosacral spine revealed remote osteochondrosis, affecting the lower dorsal and upper lumbar spine, with kyphotic deformity of the lumbosacral spine in that location. The examiner concluded that no physical disability existed. Evidence added to the record since the April 1949 rating decision consists, in pertinent part, of a letter from the veteran dated in January 1983 which describes a back injury in service in which, while unloading cartons from a truck, the load shifted. The veteran reported that he continued to experience back symptomatology subsequent to service and sought pertinent treatment. In a March 1983 letter, H.L. Wineland, M.D., reports that he had treated the veteran since 1974 for a variety of disabilities. It was noted that the veteran reported a history of a back injury in service, with continued symptomatology thereafter. The veteran also reported having undergone physical therapy in 1962 and 1963. Dr. Wineland stated that since 1974, the veteran had been treated yearly for recurrent spasm and pain of the intrinsic musculature and skeletal area of the cervical, thoracic, and lumbar areas and that he received treatment in February 1983 for his back disability. Correspondence from Dr. Wineland dated in January 1986 reflects essentially similar information and reports worsening of the veteran's back symptomatology. At that time, subsequent to noting that the veteran had undergone physical therapy in 1962 and 1963, the physician reported in the paragraph immediately following that "[h]e had been treated for the nine years of his back condition with analgesics, steroids, and muscle relaxants. " Private medical records include a November 1986 entry which reflects the veteran's report that he was receiving treatment at a VA facility for a "pinched nerve" in the back. VA outpatient reports dated in 1990 reflect a diagnosis of degenerative joint disease of the spine and show that the disorder was symptomatic. In a statement in support of claim dated and received in January 1991, the veteran essentially reiterated his history of a back injury in service. In his June 1992 substantive appeal, the veteran reported that in addition to the aforementioned treatment in service, he returned to the hospital on November 20, 1945 and was hospitalized for a two-week period. The veteran appeared to suggest such hospitalization was associated with back symptomatology. In a September 1992 letter, V. Bryan Perry, M.D., wrote that he had "seen" the veteran in June and September 1992 due to acute lumbar and sacroiliac pain with radiation in the left lower extremity to his feet. In a lay statement received in October 1992, it was noted that in 1946, the veteran was required to leave his place of employment due to back pain; two physicians from whom the veteran sought treatment were identified. It was also noted that treatment from one of the physician's included an x-ray study which showed an old injury. At his personal hearing conducted in October 1992, the veteran reiterated that while in service, he sustained a back injury when armor which he was unloading fell on him. T. at 1. He reported that he had not been successful in his attempts to relieve his back pain. T. at 2. The veteran testified that he had sought treatment from a private physician subsequent to service. T. at 2, 3. He stated that the pain he experienced in service was different from his current pain in that his pain now includes pain down the left leg. T. at 3. The veteran reported that in 1946, his private physician referred him to other physicians and that an x-ray study was conducted. T. at 4. As noted above, in cases in which a prior final denial is of record, the veteran may submit new and material evidence to reopen the claim. 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; it is relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156(a). It has been held that to justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome of the case. Colvin, 1 Vet.App. at 174; Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). In this case, the evidence submitted by the veteran in an attempt to reopen his claim of service connection for a back disability does not satisfy the requirements set forth above. The evidence of record at the time of the 1949 determination showed that the veteran experienced back sprain in November 1944, with no further reference to back symptomatology throughout the remainder of the veteran's period of service and no indication of residual disability noted on separation. We stress that the veteran's separation examination in December 1945 is negative for pertinent pathology, in spite of the veteran's reported history of a 2-week period of hospitalization beginning in November 1945. In addition, although records at that time show complaints of back symptomatology episodically after service, a back disability was not identified, including on VA examination in 1948; we stress that the report of such examination reflects that the veteran had received no treatment from private physicians. The evidence submitted subsequent to the denial of service connection for a back disability consists primarily of evidence of treatment of back symptomatology since 1974 and the veteran's assertion as to the occurrence of an injury in service and his continued symptomatology thereafter. Such evidence may be considered new, in that it is not cumulative of other evidence of record. It is not material, however, as it is not relevant and probative of the in-service incurrence of a back disability. Generally, the clinical record reflects that treatment of the veteran's back disability may have occurred from 1974. In large part, however, the evidence submitted in association with the veteran's current application largely consists of statements of continued symptomatology subsequent to service. At his hearing, the veteran reported that he received treatment in 1946 shortly after separation from service, and a lay statement supports the veteran's report in this regard. Conceivably, these statements might seem to bolster an argument for continuity of back symptomatology following the November 1944 strain. The veteran's claim, however, was denied in 1949 not because of the absence of continuity of symptomatology from service but rather because there was no finding of a chronic acquired back disorder on the examination of December 1948. The expanded record fails to identify such a back disability until years after service. Dr. Wineland's 1986 letter, for example, reflects a history reported by the veteran of physical therapy in 1962 or 1963, and notes a nine-year period of treatment for back symptomatology. The point of reference from which the nine-year period is noted is unclear. Even if such period were from the veteran's reported physical therapy treatment in 1962 or 1963, however, it remains many years post- service. The remainder of the evidence submitted by the veteran in an attempt to reopen his claim essentially refers to current complaints, findings, and treatment of his back disability. Evidence which tends to show a relationship between his in- service back sprain and his current disability, however, is absent. In general, the evidence submitted by the veteran in an attempt to reopen his claim does not tend to establish an etiologic link between the veteran's in-service back sprain and post-service complaints referable to the back. ORDER New and material evidence has not been submitted to reopen a claim of service connection for a back disability; the benefit sought on appeal is denied. JOHN E. ORMOND 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.