BVA9501989 DOCKET NO. 92-04 264 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Wirt, Associate Counsel INTRODUCTION The appellant served on active duty for training which has been verified from July 13, 1968, to July 27, 1968. A June 1987 rating decision of the Department of Veterans Affairs (VA) Detroit, Michigan, Regional Office (RO) denied service connection for a back condition. The appellant did not perfect an appeal that decision, and the decision became final. Through his representative, The American Legion, the appellant submitted a request to reopen his claim in March 1989. This appeal arises from an April 1989 rating decision of the Detroit RO, which determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a low back condition. The case was remanded by the Board of Veterans' Appeals (Board) in September 1993 for additional medical records and a VA examination. In addition, the RO was instructed to readjudicate the issue of whether new and material evidence had been submitted to reopen the claim. This was not accomplished. Instead, the rating decision of May 1994 and the June 1994 supplemental statement of the case addressed the merits of the claim, without explicitly indicating that the claim is reopened. In fact, apart from the rating decision of April 1994, the RO appears to have consistently addressed the merits of the claim. The Board has considered the evidence which has been submitted since the June 1987 rating decision. This evidence includes a Dr. Liney's report showing complaints referable to the low back beginning approximately one and one half years after the injury on duty. When this evidence is considered in light of all the evidence, both old and new, and presuming the credibility of the evidence for the limited purpose of deciding whether the claim is reopened, we find sufficient continuity of symptomatology after active duty for training to create a reasonable possibility of an allowance. Accordingly, the Board finds that the claim is reopened, and the decision that follows will consider that claim on the merits. Because the Board is addressing the issue on essentially the same basis as the RO, there can be no prejudice to the appellant. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he injured his back while on active duty for training, and that he still suffers from residuals of this injury. 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 appellant'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 preponderance of the evidence is against the claim of entitlement to service connection for a low back condition. FINDINGS OF FACT 1. Service connection for a back condition was denied by the RO in June 1987. The appellant did not perfect an appeal of that decision. 2. Additional evidence submitted since the June 1987 rating decision of the RO is new and material with respect to service connection for a back condition. 3. The episode of low back pain while the appellant was on active duty for training was acute and transitory and was not related to any chronic low back disability shown subsequently. CONCLUSIONS OF LAW 1. The evidence received since the final June 1987 RO denial of entitlement to service connection for a back condition is new and material, and the appellant's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). 2. A chronic low back disability was not incurred in or aggravated while performing active duty for training or inactive duty training. 38 U.S.C.A. §§ 101 (24), 106, 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the statutory duty to assist mandated by 38 U.S.C.A. § 5107(a). The appellant was originally denied service connection for a back condition by a June 1987 rating decision. He submitted a notice of disagreement, but failed to respond to the statement of the case with his substantive appeal. That decision, therefore, became final. 38 U.S.C.A. § 7105. A claim may be reopened after it has been disallowed if new and material evidence is presented. 38 U.S.C.A. § 5108. When considering a request to reopen a claim, the Board must first determine whether the evidence is new and material. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). If the Board so determines, the claim is reopened and the Board must then evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Id. The United States Court of Veterans Appeals (Court) defined what is meant by "new and material" in Colvin v. Derwinski, 1 Vet.App. 171 (1991). "New evidence is not that which is merely cumulative of other evidence on the record. Material evidence is relevant and probative of the issue at hand." Id. at 174 (citations omitted); see also 38 C.F.R. § 3.156(a). The Court noted, though, that not all new evidence, even if it is relevant and probative, is sufficient to reopen a case, in that some evidence is of too limited a weight to justify a reopening. Id. The Court embraced the "bright line" rule adopted by other federal courts, which is that "to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Id. (citations omitted). In addition, for the limited purpose of determining whether the case should be reopened, the evidence should be presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1992). For reasons set forth previously, the Board has found that the claim is reopened. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred in or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101 (24), 106, 1110, 1131 (West 1991). The appellant's military records consist of reports of service physicals conducted in February 1966, June 1967, and August 1971, as well as three July 1968 sick slips. The February 1966 and June 1967 physicals are negative with respect to the back. The three "sick slips" from the appellant's military medical records, dated July 22, 23 and 25, 1968, relate to the original injury that the appellant contends has caused his subsequent back problems. The slips dated July 22 and 23, 1968, indicate that he had a "back injury." The July 22 slip shows that he was given Meplusin and confined to quarters. The July 23 slip shows that he was given Robaxin, with instructions to sleep on a hard surface. The July 25 slip indicates that he had a "sore back," and describes the pain as slowly resolving, recommending continuation of current treatment with "[n]o bending, stooping, P.T. or loading vehicles." The August 1971 physical shows that the spine was normal. Medical bills from Dr. Vicente Gracias dated in 1985 indicate that the appellant underwent neurological testing in March 1985 and had a lumbar laminectomy in May 1985. Chiropractic receipts from C. Gangluff, P. Rhoades and S. Kooistra show that the appellant was treated once in August 1973, once in December 1978, twice in January 1979, and then approximately once a week from December 1984 to March 1985. A 1987 letter from Dr. Gangluff states that the appellant was treated in August 1973 for a lumbosacral sprain injury caused by lifting a washer. A 1987 letter from Dr. Rhoades states that the appellant sought treatment twice in January 1979 for "back symptoms." A 1987 letter from Dr. Kooistra states that the appellant's diagnosis was lumbosacral strain with L5 disk protrusion, which caused pain in his low back and right leg. The letter indicates that the appellant was treated with spinal manipulation, and that he was eventually referred to Dr. Gracias. The letter further states that the appellant was treated after his surgery. A statement from the appellant which was received at the RO in June 1986 provides information regarding his National Guard unit and the dates of treatment for his back condition while on active duty for training. This statement also provides the names of professionals who treated him for a back condition from 1973 to 1985. A report of accidental injury, received in August 1986, contains the appellant's statement regarding the circumstances surrounding the onset of his back condition while on active duty for training in July 1968. Medical records from a Dr. Linsey which were received in 1989 show that on December 12, 1970 the appellant had strain of the low back and myospasms. The accompanying notes indicate treatment on December 12, 1970, for low back symptoms which began on December 11, 1970; treatment on March 8, 1971 for low back strain; treatment on August 15, 1971, for low back symptoms which began on August 14, 1971; treatment on December 5, 1971, for low back symptoms which began on December 4, 1971; and treatment on February 20, 1972, for low back symptoms that began on February 19, 1972. The appellant's August 1988 written statement describes additional details about his July 1968 injury while on active duty for training, including specific information regarding the treatment he received. He also describes the limitations he was experiencing at that time. His testimony under oath at the hearing at the RO in May 1990 was to the effect that he experienced severe low back pain from the time of the injury in 1968; that the earliest treatment he obtained after the injury was in 1970; and that the 1968 injury and 1987 rupture were from the same injury. Records received in 1993 from Dr. Gracias, dated from December 1989 to January 1990, consist of two letters to L. J. Berryo, D.C., dated in December 1989 and January 1990, respectively, as well as laboratory reports and a myelogram report, all dated in December 1989. The December 1989 letter to Dr. Berryo indicates that the appellant was seen for complaints of pain in the upper and lower lumbar spine, with numbness in both lower extremities. He gave a history of having been injured in a motor vehicle accident in September 1988, with his back becoming progressively worse since that time. The impression on the December 1989 myelogram report is that the study was within normal limits. The January 1990 letter to Dr. Berryo contains a follow-up report after the myelogram results were received. Records from Butterworth Hospital received in 1993 pertain to the veteran's lumbar laminectomy in May 1985 for herniated disc. These records state that the appellant first noticed back problems in 1985. He currently had radiating back pain. A report of VA examination conducted in March 1994 notes that neither in the contemporary medical record nor upon careful questioning of the appellant was there any mention of radiating back pain in connection with the 1968 injury. The report also contains a statement from the examiner in which he opined that, in light of the 17-year lapse between the appellant's low back pain in service, which resolved with conservative treatment, and his laminectomy, it was unlikely that the 1968 condition led to the 1985 surgery. There is no dispute as to the fact that the appellant sustained an episode of low back pain while on active duty for training. He believes that this episode represented the onset of chronic back disability culminating in the herniated lumbar disc for which he underwent surgery many years later. In this regard, it must be emphasized that as a layperson, he is not considered competent on questions of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, the medical opinion which is of record does not support the claim. This opinion, proffered after obtaining a detailed medical history from the appellant, and following review of the claims file and then examination, was to the effect that the lumbar herniated disc was unrelated to the incident during active duty for training. We find the opinion to be consistent with the medical record and persuasive. That medical record shows a brief, and resolving, episode of low back pain for which the appellant was treated conservatively while he was on active duty for training. The symptoms he then described were not indicative of the radiculopathy noted in connection with the lumbar herniated disc. The next episode of low back pain found in the medical records occurred approximately one and one half years later and another approximately 14 months thereafter. In neither case were radicular-type symptoms noted. In the following year, 1973, he reportedly was treated for sprain which followed intercurrent injury, and then, approximately 5 years later, we find the first reference to lumbar disc disease. The appellant has claimed that he had continued back pain following the incident when he was on active duty for training. However, the contemporary medical record does not support his assertion. Dr. Linsey's records show that each episode of back pain in the early 1970' was of quite recent onset. In fact, none of the chiropractic or medical evidence submitted by the appellant in support of his claim corroborates the continuity of symptoms which he claims, and the 1985 records from Butterworth Hospital actually contradict that history. We consider that medical history furnished in the context of treatment, and prior to a claim for benefits, is more probative than the current assertions, including testimony, with respect to continuity of symptoms. To summarize, the more probative evidence of record, which includes medical opinion and records of treatment, does not show that the appellant developed chronic back disability, to include lumbar herniated disc, as a result of the episode of low back pain during active duty for training. Instead, that episode was shown to be acute and transitory, resolving without residual disability, and unrelated to any chronic low back disability currently shown. We therefore conclude that chronic back disability was not incurred in active duty for training. In so concluding, we have considered the doctrine of reasonable doubt, but this doctrine is not for application where, as here, the evidence is not in relative equipoise. ORDER Entitlement to service connection for a low back disability is denied. NANCY I. PHILLIPS 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.