Citation Nr: 0000182 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 96-18 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran had active duty from October 1967 to October 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal originally from a rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In early 1996, this case was transferred to the RO in No. Little Rock, Arkansas, where a hearing was held in August 1996 before a hearing officer. FINDINGS OF FACT 1. The Board in March 1980 denied service connection for a low back disability. 2. The additional documentation received since the Board's March 1980 decision, when viewed in context with all the evidence, is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The evidence recently submitted is relevant and probative, bears directly and substantially upon the matter of the origins of the disability at issue, and is not cumulative or redundant when assessed with the other evidence of record. 4. The evidence of record includes a diagnosis of a low back disorder; inservice treatment records and the veteran's statements regarding an inservice injury to the low back; and statements by a chiropractor's to the effect that he treated the veteran for a back disability beginning in the month of his discharge from military service. CONCLUSIONS OF LAW 1. The additional evidence, received since the Board's March 1980 denial of entitlement to service connection for a low back disability, constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for that disability. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100 (1999). 2. The appellant has submitted evidence of a well-grounded claim for service connection for a low back disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant argues that the evidence recently presented in support of reopening his claim of service connection for a low back disability, is not only new and material, but is also sufficient to grant service connection, particularly when that evidence is considered in light of the entire record. The appellant maintains that he developed a low back disorder as result of military service. He points out that during military service he was injured while picking up boxes of ammunition and muscle spasm was clinically diagnosed on several occasions. Since that time, he has suffered continuing low back problems. Pertinent VA law provides that service connection may be allowed for a disability that is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). An allowance of service connection requires that the facts establish that a particular disease or injury, resulting in disability, was incurred in service. 38 C.F.R. § 3.303(a) (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court), cited Edenfield v. Brown, 8 Vet. App. 38 (1995), and noted that 38 U.S.C.A. §§ 5108, 7104(b), and 7105(c) required that to reopen a previously and finally disallowed claim (whether decided by the Board or an RO) there must be "new and material presented or secured" since the time that the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 283. A decision of the Board is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the case. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). The question before the Board is the limited question of whether the veteran has submitted new and material evidence to reopen his previously denied claim. To reopen a finally denied claim, a veteran must submit new and material evidence. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. § 3.104 (1999). As defined by regulation, new and material evidence means evidence not previously submitted to agency decision makers 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 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). Current case law provides for a three-step analysis when a claimant seeks to reopen a final decision based on new and material evidence. First, it must be determined 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, it must be determined immediately upon reopening whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the merits of the claim must be evaluated after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Winters v. West, 12 Vet App 203 (1999) (en banc). It must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material when "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In March 1980, the Board denied service connection for a low back disorder. The Board noted that the veteran received back treatment on several occasions during service. However, the Board also noted that the back was found to be normal on separation and that the veteran received post service injuries to the back in 1977, 1978, and 1979. It was determined that the inservice symptomatology did not represent a chronic back disability. The March 1980 Board decision is the last final decision on the issue of service connection for a low back disorder. Therefore, the Board shall review the evidence of record at the time of, and evidence submitted since, that RO decision. The evidence previously considered by the Board included the veteran's service medical records, as well as post service treatment records. The service medical records relate that beginning in February 1968, the veteran complained of back pain. At that time, there were no positive orthopedic findings. Beginning in April 1968, and periodically thereafter, mild muscle spasm in the lumbar area was noted. In August 1969, he was referred for orthopedic evaluations. The veteran reported the history of back pain on the September 1971 discharge examination report; however, at that time, no clinical evidence of a chronic low back disability was reported. Post service employment related medical records show that the veteran reported three lifting injuries involving back between 1977 and 1979. A March 1980 Board decision denied service connection. The evidence of record subsequent to that Board decision includes VA and private medical records showing that the veteran has continued to receive treatment for his back. A magnetic resonance imaging report (MRI) dated in September 1995 indicated a diagnosis of degenerative disc of the lumbar spine. The veteran also submitted lay statements of a relative and friend that indicated he injured his back during service. At a personal hearing in August 1996, the veteran reported his medical history regarding his low back. He also described his inservice injury. He also submitted duplicate service medical records. After a review of the record, the Board concludes that some of the new evidence submitted is also material. In particular, the record contains three statements from a private chiropractor, Roy McCormick. Dr. McCormick stated in August 1996 that he first saw the veteran on October 12, 1971 through 1972, and several times through the years to the present time, with chronic back pain. He revised his statement in November 1996 to indicate that he should have said that he first saw the veteran in the middle of October 1971. The record also contains a photocopy of a statement, dated August 29, 1972, from Dr. McCormick, as follows. To Whom It May Concern: This is to certify that [the veteran] has a chronic spine condition at T-10 through L-1 that gives him incapacitation from time to time. The newly submitted evidence includes information not previously considered. While not commenting on the reliability, credibility or thoroughness of the submitted statements from the veteran's chiropractor, they indicate, when taken at face value, that the veteran had a chronic back condition within a short time subsequent to service discharge. They directly relate to the issue of continuity and chronicity of the veteran's back disability. These statements, for purposes of determining whether the claim is reopened, are presumed credible because they are not inherently incredible or beyond the competence of the chiropractor. Therefore, it is concluded that the veteran's claim should be reopened. As outlined by the Court in Hodge, after reopening the claim, it must be determined immediately upon reopening whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(A). The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (1999). In this case, again presuming the credibility of the evidence for the purpose of determining whether the claim is well grounded, the Board notes that the record contains a current diagnosis of a lumbar spine disorder; inservice treatment records for low back injuries; and the private chiropractor's statements that could provide the necessary medical nexus evidence. Therefore, I find this claim well grounded. ORDER To the extent that evidence submitted since the March 1980 Board decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for a low back disability, and to the extent that the Board finds the claim is well grounded, the appeal is granted. REMAND The Board has found that new and material evidence has been submitted to reopen the veteran's claim for service connection for a low back disability. In light of the decision cited above, the issue concerning service connection for a low back disability should be reviewed on a de novo basis. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this case is REMANDED for the following action: 1. The RO should consider the veteran's reopened, well-grounded claim for service connection for a low back disability on a de novo basis. In so doing, any necessary development should be undertaken. 2. If service connection remains denied for a low back disability, the appellant and representative should be furnished a supplemental statement of the case, which should include the laws and regulations applicable to the current claim, and given the opportunity to respond thereto. The case should thereafter be returned to the Board. The veteran need take no action until he is so informed. The purpose of this REMAND is to ensure compliance with due process requirements. The Board intimates no opinion as to the ultimate outcome of his claim. 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. MARY GALLAGHER Member, Board of Veterans' Appeals