BVA9502423 DOCKET NO. 92-05 087 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and J. Rock ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from June 1963 to June 1965. This case arises from a rating decision of December 1990, in which it was determined that new and material evidence had not been received to reopen the veteran's claim for service connection for a back disorder. In October 1992 the Board of Veterans' Appeals (Board) remanded this case for additional development of the record. In a rating decision of April 1993, the RO again determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a back disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it determined that new and material evidence had not been received to reopen his claim for service connection for a back disorder. He specifically alleges that evidence he has submitted subsequent to an August 1989 denial by the Board of that claim is both new and material, in that this evidence shows that his present back disorder is attributable to the injury he sustained while on active duty. 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(s). 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 received with regard to his claim for service connection for a back disorder, and, accordingly, that his claim has been reopened. FINDINGS OF FACT 1. Service connection for a back disorder was denied by the Board in a rating decision dated in August 1989. 2. The evidence received subsequent to August 1989, when reviewed in conjunction with the evidence that had previously been considered, raises a reasonable possibility that the veteran's claim for service connection for a back disorder could be allowed. CONCLUSION OF LAW The evidence received subsequent to an August 1989 decision of the Board, in which service connection for a back disorder was denied, is new and material, and serves to reopen the veteran's claim for service connection a back disorder. 38 U.S.C.A. §§ 5108, 7104 (West 1991); C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the "well grounded" requirement shall not apply with regard to reopening disallowed claims and revising final determinations. See Jones v. Brown, No. 93-315 (U.S. Vet. App. Nov. 14, 1994). In an August 1989 decision, the Board denied service connection a back disorder. In making that decision, the Board considered all the evidence then of record. The Board determined that the veteran's low back strain in service was acute and transitory in nature and resolved without residual disability. The Board also noted that there were no post service showings of treatment for back complaints until 1984, when the veteran incurred a back injury in a motor vehicle accident. Prior decisions of the Board are final, and may only be reopened upon receipt of additional evidence which, under the applicable statutory and regulatory provisions, is both new and material. "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative; that is, it raises a reasonable possibility of allowance of the claim when viewed in conjunction with the record as a whole. Evidence received subsequent to the Board's August 1989 decision includes statements by the veteran's private physician dated in March 1990, March 1991 and August 1991; a statement by the veteran's friend dated in November 1990; the transcript of the hearing conducted in November 1991; and outpatient treatment records dated from 1988 to 1992. Some of the evidence received since August 1989, while new in the sense that these records had not previously been associated with the veteran's claims folder, is not new under the precepts set forth by the United States Court of Veterans Appeals (Court) in Colvin, in that it is cumulative in nature. The statement by the veteran's friend dated in November 1990, and the outpatient treatment records dated from 1988 to 1992, merely reassert the findings made by the Board in August 1989, namely, that the veteran injured his back in 1964 while on active duty and that he has been diagnosed with a low back strain many years after his separation from service. Similarly, the testimony presented at the November 1991 personal hearing does not present information that had not been of record as of August 1989. However, statements dated in March 1990 and August 1991, from the veteran's private physician indicate that the veteran's present back condition is attributable to the back injury he sustained while on active duty. In addition the physician ascertained that the veteran's motor vehicle accident in 1984 did not "appreciably" change his back problem, and did not "alter the course of his back pain". This evidence is not only new but is material, in that it presents information that had not previously been known. The provisions of 38 C.F.R. § 3.303(d) stipulate that "service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." As noted above, the post service record considered by the Board in August 1989 did not contain medical evidence of low back disability until many years after the veteran's separation from service. The statements by the veteran's private physician discussed above appears to demonstrate a nexus between the veteran's present back disorder and his inservice injury. In Justus v. Principi, 3 Vet. App. 510 (1992) the Court held that a physician's statement was clearly new and material because it contained information, not previously of record, which was relevant and probative of the issue at hand. The Court held that, if believed, the letter would present a reasonable possibility of changing the outcome of the claim. The Court elaborated: In determining [whether evidence is new and material to reopen a claim], the credibility of the evidence is to be presumed. This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is of the opinion that the instant case is distinguishable from Reonal v. Brown, 5 Vet. App. 458 (1993). In Reonal, the Court held that a new medical statement was not material to support the reopening of a claim for service connection for leg injuries, where the physician merely relied on claimant's account of his medical history and service background, which had already been rejected. The Court noted that the presumption of credibility of the evidence did not arise in this case, as in Justus, but rather, the issue was the basis upon which the physician's opinion was made. Reonal v. Brown, 5 Vet. App. at 460 and 461. In the instant case, the August 1991 letter from the veteran's private physician reveals that MRI studies, CT scans and lumbar myelograms were conducted by the physician. The physician stated "In view of the history, as well as his present findings, it would appear that this patient's present condition is directly related to his accident while in military service. Although the physician undoubtedly relied upon the medical history provided by the veteran, it was not the sole basis for his opinion as to the etiology of the veteran's back condition. Accordingly, the Board finds that this evidence is relevant and probative with regard to the question of whether the veteran's present low back disability is attributable to his inservice back injury, and raises a reasonable possibility that his claim, when the record as a whole is considered, could be allowed. In view of the foregoing, the Board finds that new and material evidence has been received with regard to the veteran's claim for service connection for a low back disability, and that his claim therefor has been reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. § 3.156(a) (1993). ORDER New and material evidence has been received with regard to the question of service connection for a back disorder, and the veteran's claim for such a disorder has accordingly been reopened. REMAND As indicated above, the Board has determined that new and material evidence has been received with regard to the veteran's claim for service connection for a back disorder, and the claim has accordingly been reopened. It is now incumbent upon the RO to review the entire evidentiary record, in accordance with the regulatory and statutory procedures that govern adjudication of a reopened claim, prior to any further Board consideration of the issue. See Bernard v. Brown, 4 Vet. App. 384 (1993). This case is therefore being returned to the RO for such action. Accordingly, this case is REMANDED for the following: The RO should again review the veteran's claim for service connection for a back disorder. In so doing, the RO should consider the entire evidentiary record, to include the evidence considered by the Board when it rendered its August 1989 decision, together with all evidence received since that date. If the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case, and with a reasonable period of time within which to respond thereto. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional evidence and to ensure compliance with due process considerations. U. R. POWELL 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).