Citation Nr: 0003986 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-19 630A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado 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: The American Legion ATTORNEY FOR THE BOARD N.J. Ferrante, Associate Counsel INTRODUCTION The veteran served on active duty from February 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). The record indicates that the veteran failed to report for a hearing before the Board in Washington D.C. scheduled in October 1999. FINDINGS OF FACT 1. In October 1983 the RO denied the veteran's claim of entitlement to service connection for a low back condition. The veteran did not appeal. 2. Relevant evidence submitted since the October 1983 decision includes private and VA medical records and lay statements which are so significant that they must be considered in order to fairly decide the merits of the claim. 3. The claim of service connection for a low back disorder is plausible. CONCLUSION OF LAW 1. The October 1983 rating decision, which denied entitlement to service connection for a low back disorder is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.153 (1983) (currently 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 20.1103 (1999)). 2. Evidence submitted since the October 1983 rating decision in support of the veteran's application to reopen the claim for entitlement to service connection for a low 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 (1999). 3. The claim of service connection for a low back disorder is well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior Rating Decision In October 1983 the RO denied the veteran's claim of entitlement to service connection for a low back condition. The veteran did not appeal and that decision became final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.153 (1983) (currently 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 20.1103 (1999)). The only evidence of record at the time of the October 1983 rating decision was the veteran's service medical records. The report of medical history completed in February 1974, at the time of the veteran's entrance to active duty, noted that that the veteran had no history of back problems. In March 1974 the veteran reported a 3 day history of back pain due to trauma. The impression was intercostal and costochondral strain. In October 1974 and July 1975 the veteran was seen for complaints of low back pain after lifting heavy objects. After complaints of low back pain in November 1976 the veteran was diagnosed with L5-S1 muscle strain. A history of recurrent back pain was note on the veteran's November 1976 discharge examination. Evidence Submitted After October 1983 The evidence submitted since October 1983 includes private medical records which document frequent treatment for low back problems by various private providers in the early 1980's. Among the records is a letter from Dr. J.W.H., a chiropractor, who stated that he treated the veteran on 19 occasions from June to August of 1978 for lumbosacral strain/sprain that reportedly had its onset 2 years earlier. Also included in the new evidence is the report of a June 1998 VA examination. The veteran's medical records were not available for review at the time of the examination. The examiner noted the veteran had difficulty ambulating and that his range of motion was markedly limited by severe pain. Radiology reports noted spondylosis with the possibility of epidural scar or subtle disc herniation. The diagnoses were degenerative joint disease, lumbosacral spine, severe with marked discomfort, decreased range of motion and functional impairment; status post-surgical fusion of L-3, L-4 and L-5 secondary to the previous diagnosis. The new evidence also included the lay statements of the veteran's ex-spouse, to whom he was married at the time of the alleged injury. She recalls that the veteran spoke of the injury and continuously complained of pain. Analysis Despite the finality of the prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 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). 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") has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). The Court has reviewed and upheld the standards regarding the issue of finality. Reyes v. Brown, 7 Vet. App. 113 (1994). The Court has held that with regard to petitions to reopen previously and finally disallowed claims, VA must conduct a three-part analysis, first, whether evidence submitted is "new and material" under 38 C.F.R. § 3.156(a), second, if it finds the evidence is "new and material" immediately upon reopening it must determine whether the claim is well grounded, based upon all of the evidence, presuming its credibility, and third, if the claim is well grounded to proceed to the merits, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) had been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999) (en banc); see also Winters v. West, 12 Vet. App. 203 (1999) (en banc). In this case, evidence submitted since the denial to reopen the veteran's claim in October 1983 objectively documents that the veteran suffers from a back disability which dates back to at least June 1978. Other than a history given by the veteran of an inservice injury, no etiology is provided. The statements of the veteran and his ex-spouse which describe a continuity of subjective complaints of back discomfort since the veteran's period of active duty, support the veteran's claim. All of this information is "new" since it was not available for review in October 1983, and is "material" since it bears directly and substantially upon the specific matter under consideration. It is neither cumulative nor redundant and it is so significant that it must be considered in order to fairly decide the merits of the claim. The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, as the Board finds evidence added to the record since October 1983 is "new and material" to the veteran's claim, the claim is reopened. See 38 C.F.R. § 3.156. The Board further finds that, in light of the new and material evidence submitted since the October 1983 rating decision, the veteran's claim is well-grounded under 38 U.S.C.A. § 5107(a) (West 1991). The chiropractor diagnosed lumbosacral strain/sprain and the only injury to the spine referred to in the report is the one in service. His symptoms in service were similar to the ones described in the chiropractor's report. The overall evidence renders the claim plausible. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). ORDER New and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability and the claim is well grounded. To this extent, the claim is allowed. REMAND In light of the fact that the Board has reopened the veteran's claim and found it well-grounded, additional development is warranted. The newly submitted evidence contains references to back surgeries in 1980 and/or 1982. The records related to those surgeries should be associated with the claims file. Also of record is evidence that the veteran has obtained disability benefits from the Social Security Administration. Neither the records of the veterans' claim, nor the records of numerous health care providers referenced in a document submitted to the Social Security Administration are in the claims file. These records should also be obtained. Generally, if further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1999). In light of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who treated him for any back disorder since his separation from active service. After obtaining the appropriate releases for medical information, the RO should request records from all appropriate sources, including Dr. J.W.H. and associate any records obtained with the claims folder. 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claims for Social Security disability benefits, including the medical records relied upon in those determinations. 3. The veteran should then be afforded a VA orthopedic examination to determine the nature and etiology of his low back disability. All indicated tests and studies should be conducted. The claims folder should be made available to the examiner for review before the examination. Following review of the medical history contained in the claims folder, the examiner should express an opinion for the following question: Is it more likely, as likely, or less likely than not that the veteran's current back disability is related to his period of active service? An explanation of the reasons for this opinion and the evidence relied upon to reach the opinion should be included. 4. The RO should then readjudicate the appellant's claims of entitlement to service connection for a low back disability. 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). If any benefit sought on appeal, for which a notice of disagreement has been filed, is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. THOMAS J. DANNAHER Member, Board of Veterans' Appeals