BVA9500180 DOCKET NO. 93-04 004 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder, and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from December 1942 to April 1945. This case came before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Entitlement to service connection for a back disorder was denied by rating decision in October 1953. The veteran was notified of that action later in October 1953, and he did not timely appeal. The veteran's attempt to reopen his claim for service connection for a back disorder was denied by rating action in July 1978. He was notified of the denial in August 1978, and he did not timely appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the evidence submitted since July 1978 is new and material and should warrant the reopening, and granting, of his claim for entitlement to service connection for a back disorder because the evidence consists of statements from other veterans who witnessed the veteran's back problems during service and of medical evidence confirming a chronic, service related back disorder. 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 new and material evidence to reopen the veteran's claim for service connection for a back disorder has been submitted and that the preponderance of the evidence is in favor of the reopened claim for service connection for a back disorder. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a back disorder in an unappealed rating decision in October 1953. 2. Evidence which is not cumulative or duplicative of evidence previously of record and is sufficiently relevant and probative to establish a reasonable possibility of a different outcome has been received since the October 1953 decision. CONCLUSIONS OF LAW 1. Evidence received since the October 1953 rating action that denied entitlement to service connection for a back disorder is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a)(1993). 2. A chronic back disorder was incurred during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A previously disallowed claim will be reopened if new and material evidence is submitted in support thereof. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). To be "new and material," the evidence must be more than merely cumulative; there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, would change the outcome of the prior decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence received by VA after October 1953 includes a transcript of the veteran's November 1992 RO hearing which shows that the veteran testified in detail about an injury to his back in October 1944 and a continuity of back symptoms thereafter . This evidence, which is the veteran's first sworn testimony on file, provides a reasonable possibility of a successful claim. Id. Consequently, the Board finds that the veteran's testimony must be considered new and material evidence and that, therefore, his claim for service connection for a back disorder is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Once a claim is reopened, it must be evaluated on the basis of all of the evidence of record, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991). The veteran's service medical records reveal that he complained in February 1943 of rheumatism with general aches and pains throughout his system, centralizing across his shoulders and in the lumbar region. Acute myositis was noted in October 1944, and his trunk was strapped. On February 13, 1945, the veteran complained of headaches and backaches; examination revealed restricted back motion. On February 15, 1945, he reported a 1-2 year history of headaches and backaches; he said that a year earlier he had had an attack characterized by back pain and leg paralysis and was unable to lift heavy objects because of back pain. Examination of the spine showed some increased rigidity of the erector spinal group. A March 1945 Medical Survey evaluation diagnosed a mixed type psychoneurosis, and it was recommended that the veteran be discharged. The veteran was seen by Otto E. Aufranc, M.D., in December 1947 and January 1948 with complaints of intermittent back pain since an injury in service. Dr. Aufranc noted in a February 1948 statement that x-ray studies of the veteran's back taken in December 1947 revealed some increased bone density in the lumbosacral facets, increased width in the interspinous spaces, and considerable mobility in the lumbosacral junction and the lower lumbar vertebrae. Dr. Aufranc diagnosed an old injury to the lumbosacral spine and chronic strain of the lumbosacral junction; spinal fusion of L4-5 and S1-2 was recommended. The veteran underwent spinal fusion at Massachusetts General Hospital in March 1948. February 1948 statements from a Commander in the Naval Reserve and the pharmacist's mate of the ship on which the veteran was stationed, which were received by VA in March 1948, note that the veteran had to be hospitalized for a back injury after he was thrown against an iron stanchion in heavy seas in October 1944, with subsequent back problems during the remainder of the veteran's service. According to an April 1978 statement from J. Fletcher Wonson, M.D., he had treated the veteran intermittently for back problems since 1945. Dr. Wonson noted that a fall in December 1947 had aggravated the veteran's back problem. Statements that the veteran incurred a back injury in service were received by VA in May 1978 and March 1992 from four different servicemen who knew the veteran during service, with two of the servicemen sending additional statements in January 1993 elaborating on the veteran's continued back problems in service after the injury. The above evidence shows that the veteran complained of back problems in service, that several people who served with him, including the pharmacist's mate on the same ship, confirmed his back injury and subsequent back problems in service, that he sought treatment for his back shortly after service, and that private physicians found him to have chronic back disability related to service. The Board has found the medical opinions supporting the claim to be particularly persuasive since they are based, in part, upon X-ray findings evidencing old trauma. Consequently, the Board finds that service connection for a back disorder is warranted. ORDER The claim for service connection for a back disorder is reopened and granted. SHANE A. DURKIN 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.