Citation Nr: 0000536 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-01 654A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from April 1944 to June 1946. The Board of Veterans' Appeals (Board) denied service connection for lumbar intervertebral disc syndrome in a December 1961 decision. This case comes to the Board on appeal from a July 1997 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA), Regional Office (RO), which found that new and material evidence had not been presented to reopen the veteran's claim for service connection for a chronic low back disorder. The veteran presented testimony at a personal hearing held by a Hearing Officer (HO) at the local VARO in September 1998. The HO confirmed and continued the denial of the benefit sought. The veteran also presented testimony at a personal hearing held by the undersigned at the local VARO (Travel Board) in May 1999. In June 1999, the RO reviewed the case in light of the amended procedures for evaluation of new and material evidence claims as set in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (discussed below), but declined to reopen the veteran's claim. FINDINGS OF FACT 1. In December 1961, the Board denied service connection for lumbar intervertebral disc syndrome essentially on the basis that the evidence did not show a nexus between such disability and service or any injury therein. 2. Evidence presented since the December 1961 Board decision tends to show that there is a nexus between current low back disability and service, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since a December 1961 Board decision denied service connection for lumbar intervertebral disc syndrome is new and material, and the claim for such benefit may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a decision of the Board becomes final, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7104(b) (West 1991). However, when a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made. 38 U.S.C.A. § 7104 (West 1991) ; 38 C.F.R. § 20.1105 (1999). "New and material evidence" means 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 conjunction 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). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has specifically held that the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and that before the Board may reopen such a claim, it must so find. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998), the Federal Circuit held that in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), 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") impermissibly ignored the definition of "material evidence" adopted by VA under 38 C.F.R. § 3.156(a) as a reasonable interpretation of an otherwise ambiguous statutory term (found under 38 U.S.C. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different government benefits scheme. Pursuant to the holding in Hodge, the legal hurdle adopted in Colvin and related cases, see e.g. Sklar v. Brown, 5 Vet. App. 140, 145 (1993), Robinette v. Brown, 8 Vet. App. 69 (1995) and Evans v. Brown, 9 Vet. App. 273 (1996), that required reopening of claim on the basis of "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the case was declared invalid. Thus, the Federal Circuit held in Hodge that the legal standard that remains valid was that contemplated under 38 C.F.R. § 3.156(a) that requires that in order for new evidence to be material, the new evidence should "bear[ ] directly and substantially upon the specific matter under consideration . . . [and must be] so significant that it must be considered in order to fairly decide the merits of the claim." In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the two-step process set out in Manio, for reopening claims became a three-step process under the Federal Circuit's holding in Hodge, and is in effect a less restrictive standard based on the language of 38 C.F.R. 3.156(a). The Court held in Elkins that now the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the claim, 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. § 5107(a); 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. § 5107(b) has been fulfilled. The Court further added that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the reasonable-possibility-of-a- change-in-outcome prong established by Colvin. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Accordingly, the Board will consider whether new and material evidence has been submitted in accord with the holding in Hodge, supra. No prejudice to the veteran is exercised by the Board's appellate disposition herein because the more flexible Hodge standard accords the appellant a less stringent "new and material" evidence threshold to overcome. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993); see also Fossie v. West, 12 Vet. App. 1 (1998). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Generally, to establish service connection there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97- 7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Positive medical evidence of a nexus may be rebutted, in an appropriate case, by medical evidence that demonstrates the significance of a lack of continuity of symptomatology. Rose v. West, 11 Vet. App. 169, 171-72 (1998). An alternative method, under 38 C.F.R. § 3.303(b) (1999), is that there may be a "chronic" disease which manifests and is identified as such in service and the same condition currently exists; or if a disease manifests itself during service but is not identified until later and there is a showing of post-service continuity of symptoms and medical evidence relates the symptoms to the current condition. Rose, supra (citing Savage v. Gober, 10 Vet. App. 488, 495-98 (1997)). The last previous final denial of the veteran's claim was, as noted, in December 1961. Therefore, the analysis of the evidence submitted to reopen the veteran's claim must include review of all evidence submitted subsequent to the December 1961 determination. The December 1961 Board decision denied service connection for lumbar intervertebral disc syndrome based on findings that there was no evidence of back injury in service, and the disorder was not otherwise shown to be due to military service. What was missing then, in essence, was competent medical evidence of a nexus between the veteran's low back disorder and his military service. Evidence submitted since the 1961 determination includes an August 1998 statement of C. D. Moore, Jr., M.D., which indicates that the veteran's back disability is the result of an accident he suffered in service in 1945. This evidence is new, as it was not previously of record, and is material, as it pertains to the matter of a nexus between current low back disability and service. It is so significant that it must be considered in order to fairly decide the merits of the claim. As was noted above, the RO undertook an analysis of the veteran's claim under Hodge in a June 1999 SSOC, and determined that Dr. Moore's statement was insufficient as to satisfy the well-groundedness requirement. The RO noted that although the doctor reviewed an August 1948 medical statement and a September 1949 VA admission record, he did not have the veteran's service medical records or the complete record for review. Although the RO's June 1999 adverse determination is couched in terms of well groundedness, the Board observes that the RO in fact and in law rendered a decision on the merits without fulfilling its duty to assist. In this regard, it is noted that the analysis required is not the same at both the well-groundedness and the merits stages. Indeed, the evidence submitted in support of a claim for reopen must be accepted as true for purposes of determining whether the claim is well grounded. See Justus and Elkins, supra. Accordingly, the credibility of Dr. Moore's statement is presumed, and the elements of a well grounded claim for service connection, as set forth in Caluza and Epps, are satisfied. Thus, contrary to the RO's determination, the Board finds that the veteran's claim for service connection for a low back disorder is well grounded. ORDER The claim of entitlement to service connection for a low back disorder is reopened, and is well grounded; to this extent, the appeal is granted. REMAND Inasmuch as the claim for service connection for a low back disorder has been reopened, and is well grounded, the duty to assist attaches. Where an appellant presents a well-grounded claim for VA benefits, VA has a statutory duty to assist the appellant "in developing the facts pertinent to the claim" at the merits stage of the adjudication. 38 U.S.C. § 5107(a) (West 1991); see Allday v. Brown, 7 Vet. App. 517, 526 (1995). This includes the duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records referred to by the veteran. Littke v. Derwinski, 1 Vet. App. 90 (1991). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the RO discounted the probity of Dr. Moore's statement as to nexus because he reviewed some, but not all, of the veteran's medical records. The Board notes, however, that efforts to supplement the record by obtaining a nexus opinion, based upon a complete review of the record, were not undertaken prior to adjudication on the merits. Clearly, additional assistance is necessary. To ensure that VA has met its duty to assist the veteran in developing all facts pertinent to his claim, the case is REMANDED to the RO for the following: 1. The veteran should be requested to identify all sources of recent treatment received for his low back disorder. Copies of complete clinical records from all sources he identifies (not already in the claims folder) should be secured and associated with the claims folder. 2. The veteran should then be scheduled for an examination by a VA orthopedic specialist to determine the nature and probable etiology of his low back disorder. Therefore, the veteran's claims folder should be made available to and reviewed by the examiner prior to examination. Any indicated diagnostic studies should be performed. The specialist should render opinions as to: a. The nature and probable etiology of any low back pathology. b. To the extent medically ascertainable, whether the veteran's current low back disorder, if any, may be clearly dissociated from events during his active duty service. The rationale for any opinions expressed must be provided. 3. The RO must then review the claims folder and ensure that all of the foregoing development is completed. If any development is incomplete, appropriate corrective action is to be implemented. 4. After the above actions are completed, the RO must readjudicate the veteran's claim for service connection for a low back disorder on a de novo basis. If the claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. The purpose of the examination requested in this remand is to obtain evidence which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determinations warranted. The purpose of the REMAND is to further develop the record. No action is required of the veteran until he receives further notice. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. GEORGE R. SENYK Member, Board of Veterans' Appeals