BVA9504717 DOCKET NO. 93-05 751 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from October 1952 to August 1954. This appeal arises from a rating decision in July 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the veteran asserted his original claim of entitlement to service connection for a low back disorder in August 1965. A rating decision in October 1965 denied the claim. A timely notice of the disagreement and a timely substantive appeal were not filed by the veteran and the decision became final. Thereafter he submitted additional evidence in an attempt to reopen the claim. In a rating decision of August 29, 1966, the RO found that the additional evidence was not new and material and did not reopen the claim. Notification of the decision was mailed to the veteran on September 1, 1966. In June 1992 the veteran wrote to the RO and asserted that "the decision issued on September 1, 1966, contains a clear and unmistakable error." The Board finds therefore that an issue in the current appeal would be whether the rating decision of August 29, 1966, involved clear and unmistakable error (CUE). The Board further finds that the statement of the case furnished by the RO in September 1992 was incorrect in stating as an issue whether there was CUE in the rating decision of October 1965. However, the Board finds that the proposed issue involving CUE error in the 1966 rating action is not viable and is now moot for reasons stated here below. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a low back disorder which preexisted service was aggravated during 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 new and material evidence has not been submitted to reopen a claim of entitlement to service connection for a low back disorder and that a claim that the rating decision of August 1966 involved CUE is moot and must be dismissed. FINDINGS OF FACT 1. The agency of original jurisdiction denied entitlement to service connection for a low back disorder in October 1965, finding that preexisting low back strain was not aggravated in service and that lumbosacral disc pathology first shown years after service was not related to an incident of low back strain in service. 2. Additional evidence submitted since October 1965 shows only that the veteran experienced low back pain in post service years; it does not demonstrate that preexisting lower back strain increased in severity during the veteran's period of active service. CONCLUSIONS OF LAW 1. The decision of the agency of original jurisdiction in October 1965, denying entitlement to service connection for a low back disorder, is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a) (1994). 2. Evidence received since the agency of original jurisdiction denied entitlement to service connection for a low back disorder in 1965 is not new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The evidence which was of record when the agency of original jurisdiction considered the veteran's claim in October 1965 will be summarized below. Service medical records disclosed that at a preinduction examination in March 1952 the veteran indicated that he had sprained his back three years earlier and still had some pain. A physical examination was normal. In June 1954 lumbosacral strain was diagnosed. The veteran was advised to use heat on his back and a hard bed. He was placed on light duty for two weeks. At an examination for service separation in August 1954 the veteran's spine and musculoskeletal system were evaluated as normal; no complaint of back pain was noted. The evidence in October 1965 also included a hospital summary concerning the veteran's treatment at a VA medical center in July and August 1965. At admission he gave a history of back pain since age 18 years. (He was born in 1931, so he was 18 years old in 1949, three years prior to his entrance onto active duty.) One year prior to admission, he had had the onset of pain radiating to his left lower extremity, with paresthesia of the left foot. Range of motion of the lumbosacral spine was restricted. A myelogram showed a large defect at L-5 on the left. The veteran underwent a lumbar laminectomy with excision of a herniated nucleus pulposus at L-5. Postoperatively, after several days his pain went away. The additional evidence submitted since October 1965 will be summarized below. The additional evidence included a statement by the veteran that he was treated from 1956 to 1959 by a chiropractor, presumably for back pain; the chiropractor's records were not available. The veteran submitted several lay statements. [redacted], his brother, stated that the veteran had had back trouble since service, which had gradually gotten worse; eventually, the veteran had to have an operation for a ruptured disc. [redacted] stated that: He served with the veteran in Korea; several times the veteran went to sick call for his back. [redacted] stated that he had worked with the veteran on construction jobs; the veteran had had a back problem since his discharge from service; in September 1964, the veteran had to quit a job (presumably for back pain). The veteran also submitted statements by two physicians. W. L. Crews, D.O., stated that he treated the veteran in May 1962 for low back syndrome. A. J. Bohman, M.D., stated that he treated the veteran from September 1954 to July 1965 for soreness on pressure over the lumbosacral interspinous ligaments; straight leg raising was positive; the veteran was unable to work. In June 1992 and September 1992 the veteran asserted that the evidence which he had submitted in 1966 was new and material and that the RO did not consider the doctrine of benefit-of-the- doubt. He claimed that he had sustained a back injury in Korea in a combat zone; he was treated at a field aid station for several weeks with heat treatments and then was on light duty for several weeks. He thought that the doctors did not make some entries in his service medical records. He contended that "the combat injury" was "an aggravation" of back strain which he had had at age 18 years. With regard to the claim that the August 1966 rating decision, which found that the veteran had not submitted new and material evidence to reopen a claim of entitlement to service connection for a low back disorder, involved CUE, the United States Court of Veterans Appeals (the Court) has held that the Board of Veterans' Appeals must consider all the evidence submitted since the last decision on the merits when a veteran attempts to reopen a service connection claim. Glynn v. Brown, 6 Vet.App. 523 (1994). The last decision on the merits of the veteran's service connection claim was in 1965, not in 1966. The Board will therefore consider below, in accordance with the Court's ruling, the question of whether any additional evidence submitted since October 1965 is new and material. Whether the decision of August 1966 involved CUE is thus a moot question and that claim will therefore be dismissed. Turning to the question of whether new and material evidence has been submitted since the rating decision of October 1965, the Board finds that some of the additional evidence is "new" in the sense that it is not cumulative or redundant of evidence submitted prior to the October 1965 rating decision. However, none of the additional evidence is "material." Assuming, without deciding, that the additional evidence is relevant and probative, there is no reasonable possibility that the additional evidence, when considered in the light of all the evidence, both new and old, would change the outcome of the prior denial of the service connection claim. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Neither Dr. Crews nor Dr. Bohman related the veteran's back problems in the 1960's to any incident in service. Mr. [redacted]'s statement that the veteran sought treatment for low back pain in service stated something that was shown in the veteran's service medical records, which were of record in 1965. The statements by Mr. [redacted] and by the veteran's brother that he had had back pain since his separation from service do not by any means establish that the veteran's history of lumbosacral strain was aggravated in service. Clearly, the veteran had pain prior to service and he had an increasing amount of pain after service when it was associated with the disc pathology. In sum, none of the additional evidence in any way tends to show that the veteran's post service back pain and, in particular, a herniated nucleus pulposus in 1965 were in anyway related to any incident or manifestation in service. As for the veteran's assertion in 1992 that he had sustained back trauma "in combat," the Board finds that this contention lacks probative value as it was first made 38 years after his separation from service and is not substantiated by any credible evidence. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a low back disorder, that benefit sought on appeal is denied. A claim that a rating decision of August 29, 1966, involved clear and unmistakable error is dismissed. BRUCE KANNEE 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.