Citation Nr: 0005678 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-10 003 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder. 2. Entitlement to compensation benefits based on the provisions of 38 U.S.C.A. § 1151 for residuals of lumbar spine surgery performed during VA hospitalization in August 1997. 3. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from November 1964 to January 1974. Service connection for a back disorder was denied by the Board of Veterans' Appeals (Board) in decisions of January 1977 and May 1982. The latter decision was, in effect, based on the failure to submit new and material evidence to reopen the claim. This matter now comes before the Board on appeal from June 1998 rating decision of the RO, which, in pertinent part, denied a total rating for compensation benefits based on individual unemployability. There is no current rating action holding that new and material evidence was not submitted to reopen a claim for service connection for a back disorder. However, that issue was covered in a June 1998 statement of the case, along with the individual unemployability issue. The veteran thereafter appealed both issues. In November 1998, the veteran filed a claim for compensation benefits based on the provisions of 38 U.S.C.A. § 1151 for residuals of lumbar spine surgery performed during a VA hospitalization in August 1997. This claim was denied by the RO in a rating decision of January 1999 and was thereafter appealed by the veteran. REMAND In regard to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder, we must first note that the United States Court of Appeals for Veterans Claims (Court) has held that the VA is required to perform a two-step analysis when a claimant seeks to reopen a claim based upon new and material evidence. First, it was to be determined whether the evidence was "new and material." Second, if it was determined that the claimant had produced new and material evidence, the claim was reopened and the VA evaluated the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 144 (1991). As defined by regulation, new and material evidence means evidence not previously submitted 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 the 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). Until recently the Court mandated that the third question to be resolved in the first step of the Manio analysis was whether, in light of all the evidence of record, there was 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 the prior determination. Colvin v Derwinski, 1 Vet. App. 171, 174 (1991); See Evans v. Brown, 9 Vet. App. 273, 283 (1996). However, the United States Court of Appeals for the Federal Circuit has recently held that this judicially created standard was inconsistent with the language of 38 C.F.R.§ 3.156(a), cited above, and has overruled the extension of the Manio analysis that was first articulated by the Court in Colvin, supra in regard to the materiality standard. See Hodge v. West; 155 F. 3d. 1356 (1998). As to the materiality standard, the Federal Circuit's holding in Hodge was recently interpreted by a panel of the Court of Appeals for Veterans Claims: "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim." Fossie v. West, 12 Vet.App. 1, 4 (1998). The Court has also recently held that the two-step Manio process has been replaced with a three-step process. See Elkins v. West, 12 Vet.App. 209 (1999) (en banc), interpreting and applying a decision of the United States Court of Appeals for the Federal Circuit in Hodge Supra. The procedure which VA must now follow is - first, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a); second, after the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim, as reopened, is well grounded; third, if the claim is well grounded, the merits of the claim must be addressed and, if ripe for decision, adjudicated. Winters v. West, 12 Vet.App. 203, 206 (1999) (en banc). In June 1998 the RO determined that no new and material evidence had been submitted to reopen a claim for service connection for a back disorder because the evidence submitted since the most recent Board decision denying service connection for this disability did not raise a reasonable possibility of changing the outcome of the previous decision. As noted above, the decisions in Ekins, supra, and Hodge, supra have rendered invalid the standard applied by the RO's in the June 1998 statement of the case regarding new and material evidence to reopen a claim for service connection for a back disorder. In order to ensure that the veteran's procedural rights are safeguarded in this matter, it is therefore necessary to return this case to the RO for its consideration of the veteran's application to reopen his claim for service connection for a back disorder in light of the recent judicial holdings as set forth above. The Board further notes that the veteran has asserted that he has received considerable VA outpatient treatment for back symptomatology ever since his discharge from service. All pertinent VA clinical records reflecting the treatment may not be in the claims folder, but are in the VA's constructive possession; such records may be relevant to the veteran's application to reopen his claim for service connection for a back disorder and to the determination of whether that claim, if reopened, is well grounded. These records should be obtained prior to further adjudication of this matter by the RO. Robinette v Brown, 8 Vet. App. 69 (1995). The veteran has stated that with the exception of the low back surgery in August 1997, all VA treatment has been at the VAMC in Columbia, South Carolina. The veteran has also contended that his low back disability was aggravated by improperly undertaken and improperly performed VA back surgery in August 1997. He has indicated that his VA neurologist at the VAMC in Columbia, South Carolina has said that this surgery should never have been performed. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death was service connected. The Board notes that the veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 was filed after October 1, 1997. Therefore, in addition to the question of increased disability due to the VA back surgery of August 1997, negligence in the undertaking or performance of this VA surgery is also for consideration in regard to this claim. After reviewing the present record the Board is unable to determine whether the veteran's claim for 1151 benefits is well grounded because the complete, original clinical records (or certified copies thereof) of the hospitalization by the VA for lumbar spine surgery in August 1997 are not now associated with the claims folder. What is of record is a copy of the hospital summary of the veteran's hospitalization at the VAMC in Charleston, South Carolina from August 6, 1997 to August 14, 1997 indicating an L1-L2 laminectomy and diskectomy and a fusion instrumentation from L1 to L3. There is also a copy of a VA outpatient neurological consultation and CT scan dated in July 1998of record. The neurology consultation contains a diagnosis of severe failed back syndrome despite prior lumbar fusion with chronic pain syndrome. The complete clinical record of the VA's treatment for the relevant disability is as central to a claim for 1151 benefits as the service medical records are central to a claim for service connection. Therefore, the original clinical records (or certified copies) of the veteran's hospitalization and surgery by the VA in August 1997 must be obtained prior to further appellate consideration of the issue of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a back disability. The VA clinical records documenting his treatment subsequent to this surgery should also be obtained, to include, in particular, any relevant comments or information from the veteran's current treating neurologist at the VAMC in Columbia, South Carolina. It is further noted that the veteran reported in May 1998, that he injured his back in a fall from a ladder in July 1996, prior to the VA lumbar spine surgery in question. He stated that since the July 1996 injury he has been able to ambulate only with the use of crutches or a wheelchair. No clinical records of any VA or private medical treatment at the time of his 1996 back injury are in the claims folder. Any clinical records of such treatment should also be obtained and associated with the claims folder. In view of the foregoing, this case is REMANDED to the RO for the following actions; 1. All clinical records documenting the veteran's outpatient treatment for low back disability at the Dorn VA Medical Center in Columbia, South Carolina, from the time of his discharge from service to the present should be obtained and associated with the claims folder. 2. The veteran should be requested to provide the name of the VA neurologist who is currently treating him for his low back disability. When the veteran responds, this physician should be contacted and requested to provide a report on the veteran's treatment. This report should include information as to whether the physician believes that the veteran's August 1997 back surgery was either improperly undertaken or improperly performed. If such is the physician's opinion, he should provide a complete rational for his opinion. Any information received from this physician should be associated with the claims folder. 3. The veteran should also be asked to provide the name and address of any private health care provider(s) who treated him for back disability after his July 1996 accident. When the veteran responds and submits any necessary authorization, the named health care provider(s) should be contacted and asked to submit copies of all clinical records documenting the veteran's treatment for back symptomatology. All treatment records obtained should be associated with the claims folder. 4. The complete original clinical records (or certified copies thereof) of the veteran's August 1997 hospitalization and low back surgery at the VAMC in Charleston, South Carolina should be obtained and associated with the claims folder. 5 Then, the RO should again review the veteran's application to reopen his claim for service connection for a back disorder, pursuant to applicable law and regulation and the Court decisions set forth above, including Hodge v. West, Winters v. West, Elkins vWest, and Fossie v. West. The RO should also again adjudicate the veteran's claim for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for back disability based on the VA surgery in August 1997. After the above development has been completed the RO should also adjudicate the issue of entitlement to a total rating for compensation purposes based on individual unemployability; this issue has been held in abeyance pending resolution of the issue involving service connection and entitlement to 1151 benefits for a back disability. If the benefits sought remain denied, the veteran and his representative should be provided a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to the Board, if otherwise in order. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clarifying clinical evidence, to comply with precedent decisions of the Court, and ensure that the veteran receives due process of law. 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). 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. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).