BVA9503837 DOCKET NO. 92-56 693 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a back disorder, including spondylolisthesis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL The veteran and Mr. [redacted] ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from July 1970 to May 1973. This case was previously before the Board of Veterans' Appeals (Board) in June 1992. At that time, the veteran's claims included entitlement to an increased rating for post-traumatic stress disorder (PTSD), and entitlement to a total rating based on individual unemployability due to service-connected disabilities. The case was remanded to the regional office (RO) by the Board. Following the remand, the RO granted an increased rating to 100 percent for PTSD in an August 1994 rating decision. The RO stated that entitlement to a total rating based on individual unemployability was not considered, since entitlement to the total schedular rating was established. The veteran's representative noted in a November 1994 statement that the issue of a total rating based on individual unemployability was now moot. The Board also notes that the issue of a total rating based on individual unemployability is moot, and will consider only the veteran's appeal to reopen his claim for service connection for a back disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence to reopen his claim for service connection for a back disorder. He argues that he injured his back in active service when the truck he was driving hit a land mine, and the resulting explosion threw him from the truck and caused him to land on his back. He states that he has continued to experience low back pain, which radiates upward into his neck, since discharge from active service. 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 veteran has failed to submit new and material evidence to reopen his claim for service connection for a back disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's claim for service connection for a back disorder , including spondylolisthesis, was denied by an unappealed rating decision in May 1976. 3. Additional evidence received since May 1976 is either cumulative or duplicative of evidence previously considered, or does not go to the question of whether any current back disorder is related to active service. CONCLUSION OF LAW The May 1976 rating decision which denied the veteran's claim of service connection for a back disorder, including spondylolisthesis, is final; evidence received since the May 1976 rating decision is not new and material, and the veteran's claim is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.303(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The veteran contends that he developed a back disorder during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. A review of the record indicates that service connection for a back disability was denied in a May 1976 rating decision. The veteran was informed of this decision in a letter dated in June 1976. However, the letter was returned, and the postal mark indicates that the veteran had moved without leaving a forwarding address. The record indicates that the RO attempted to obtain the veteran's new address, but was unsuccessful. The record does not indicate that the veteran supplied the RO with a forwarding address. The law grants a period of one year from the date of notice of the result of the initial determination for the filing of a Notice of Disagreement. Unless a Notice of Disagreement is received within this period, the determination becomes final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105. If new and material evidence is submitted regarding a claim which has previously been denied, then the claim can be reopened and reviewed. 38 U.S.C.A. § 5108. "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence considered by the May 1976 rating decision included the veteran's service medical records and the findings of a March 1976 Department of Veterans Affairs (VA) examination. The decision noted that the veteran had been seen for back pain on two occasions during active service. The first occasion was after the truck he was driving hit a land mine in June 1971, and the second occasion was after the veteran had been lifting heavy objects in October 1972. The separation examination was noted to be normal. The decision stated that the March 1976 VA examination was negative for an acquired back disability, and noted only the presence of spondylolisthesis between L5 and S1. Spondylolisthesis was found to be a developmental disorder by the RO, and not eligible for service connection. 38 C.F.R. § 3.303(c). Entitlement to service connection was denied on the basis that residuals of an in-service back injury were not shown on the March 1976 VA examination. The additional evidence submitted by the veteran since May 1976 includes VA treatment records from 1983 to 1988, as well as private treatment records from 1987 to 1989. The veteran has also offered testimony at hearings conducted in April 1990 and February 1992. September 1983 records indicate that the veteran was seen for several complaints, including pain of the cervical spine. The assessment was of pleurisy. December 1984 VA treatment records reveal that the veteran was seen for complaints of back pain on the right side. He was also noted to have chest pain on the right side. The impression was of pleurisy. February 1985 records show that the veteran was seen with a variety of symptoms, including low back pain. The assessment was of a viral syndrome. June 1985 records indicate that the veteran was again seen for low back pain. He noted that he had been cutting down a tree. He reported a dull ache of the left lumbar paraspinal muscles. On examination, the lumbar spine was negative for tenderness. The diagnosis was of a probable paraspinal muscle strain secondary to climbing a tree. March 1987 VA treatment records disclose that the veteran reported back pain, but believed it was associated with his heart. He stated that it hurt to twist his back, but that he did not have any other pain. On examination, the left paralumbar muscles were tender. The impression was of lumbar strain. September 1987 private treatment records show that the veteran complained of a general back ache. He was noted to have been recently hospitalized, but no spinal damage was demonstrated. December 1987 records show that the veteran was seen following a motorcycle accident. The provisional diagnoses included rule out spinal cord injury. He reported chronic pain throughout his body as a result of the accident in February 1988. A February 1989 cervical spine X-ray was normal. However, loss of the normal lordosis of the cervical spine was shown, which was believed to be secondary to either patient positioning or muscle spasm. The conclusion of the examiner was of no acute intrathoracic abnormalities. Letters from Patrick A. Marchese, D.C., are of record. An October 1988 letter indicates that he treated the veteran for injuries sustained in a motorcycle accident in December 1987, including treatment of the thoracic and lumbar areas. An additional letter dated in June 1991 from Dr. Marchese states that he has treated the veteran for various spinal disorders since September 1987. The veteran was afforded a personal hearing before a hearing officer in April 1990. He testified that his back had been injured when his truck hit a land mine during service. Transcript (T.) at 18. His back pain interfered with his sleep. T. at 14. He also has occasional back spasms. T. at 19. The veteran stated that he had experienced constant back pain since discharge, which usually manifested itself as a dull ache. T. at 23. The veteran added that his December 1987 motorcycle accident did not affect his back disability. T. at 28. The veteran was afforded a hearing before a traveling section of the Board in February 1992. He indicated that he continued to have back pain. T. at 14. He stated that his back was not X- rayed during active service. T. at 17. After careful consideration of the veteran's contentions and the evidence of record, the Board is unable to find that new and material evidence has been submitted to reopen the veteran's claim. The VA treatment records and the private treatment records constitute cumulative and new evidence, in that they demonstrate the veteran has continued to experience a back disorder and has had additional back injuries. However, this evidence is not material. None of the VA treatment records or private treatment records relate the veteran's current disorder to active service. In addition, none of the evidence suggests that the veteran's spondylolisthesis was acquired and not congenital. The VA treatment records from 1983 to 1985 specifically state that the complaints of back pain were related to either pleurisy or a viral syndrome. More recent records show muscle strain or muscle spasm, but do not relate these disorders to service. Finally, the veteran is also noted to have experienced back pain following a December 1987 motorcycle accident. As none of the records submitted relates the veteran's additional back complaints to active service or shows that his spondylolisthesis is not congenital, the evidence is not material, and cannot serve as a basis to reopen his claims. The veteran has testified at the April 1990 hearing and the February 1992 hearing that he injured his back in a land mine explosion during service, and that he continues to experience back pain. The Board is unable to find that this testimony constitutes new evidence. The service medical records and the March 1976 VA examination also noted that the veteran reported an injury to his back as a result of a land mine explosion, and reports of continued pain were considered. The testimony offered in April 1990 and February 1992 is merely duplicative of the evidence previously considered. In addition, the testimony is not material. The veteran's testimony, when viewed in the context of the complete absence of any post-service medical evidence to relate the back complaints to active service, does not create a reasonable possibility that the outcome of the May 1976 decision will change. Therefore, as the evidence submitted by the veteran is not both new and material, his claim for entitlement to service connection for a back disability cannot be reopened. ORDER Since new and material evidence to reopen the veteran's claim has not been submitted, entitlement to service connection for a back disorder, including spondylolisthesis, is denied. WILLIAM J. REDDY 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.