Citation Nr: 0005183 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-14 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to the residuals of a back injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1968. This matter arises from a December 1997 rating decision by the Department of Veterans Affairs (VA) Regional Officer (RO) in Nashville, Tennessee, which determined, inter alia, that new and material evidence had not been submitted to reopen the veteran's claim for service connection for the residuals of a back injury. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. FINDINGS OF FACT 1. In May 1971, the RO denied the veteran's claim for service connection for a back condition, including the residuals of contusions of muscles in the back. The veteran was informed of this decision and the reasons therefor by a letter dated June 3, 1971. He did not appeal this decision. 2. Evidence associated with the claims folder since the May 1971 rating decision, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 3. The veteran has presented competent medical evidence of a nexus between his currently diagnosed osteoarthritis of the back and his active service. CONCLUSIONS OF LAW 1. The May 1971 rating decision by the RO, which denied the veteran's claim for service connection of a back condition, including the residuals of contusion to the muscles of the back, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (1999). 2. The evidence received since the RO's May 1971 rating decision is new and material and the veteran's claim for service connection for the residuals of a back injury has been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The veteran's claim for service connection for the residuals of a back injury is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the original claim for service connection of a back condition was denied by the RO by a May 1971 rating decision. That decision was based on a finding that the veteran did not exhibit a back disability that had been incurred in or aggravated by his active service. The veteran was notified of that decision by a letter dated June 3, 1971. He did not seek appeal of this decision. The veteran now contends that his currently diagnosed osteoarthritis of the spine is the result of an inservice fall or, in the alternative, that this inservice fall aggravated any pre- existing back condition or predisposition to back disability. As the May 1971 decision is final, the veteran's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). Consideration of whether new and material evidence has been submitted is required before the merits of the claim can be considered. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the case of Winters v. West, 12 Vet. App. 203 (1999) (en banc) the U.S. Court of Appeals for Veterans Claims (hereinafter Court), citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc), held that the two-step process set forth in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991) for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). Under this holding, the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) (1999). Second, if new and material evidence has been presented, immediately upon reopening, the Secretary must determine 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) (West 1991). Third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. Id. Since the final decision, the evidence submitted by the veteran which is relevant to his claim to reopen the previously denied claim for service connection for the residuals of a back injury include medical statements dated in November 1980, August 1981, and December 1998. These statements are proffered by private physicians: Dr. Bruce M. Ehlert, Lawrence J. Fleenor, Jr., M.D., and Donald R. Walters, M.D., respectively. These statements reflect that the veteran has been diagnosed with a back disability that Dr. Ehlert described as retrolistheses of the 3rd and 4th lumbar vertebrae, and that Drs. Fleenor and Walters describe as osteoarthritis. Moreover, both Dr. Fleenor and Dr. Walters posit an etiological relationship between the veteran's back disability and his active service. In pertinent part, Dr. Fleenor opined: The [veteran's] medical records, physical examination and back x-rays all agree that he has nerve root compression bilaterally on L:4 and L:5. The patient has a minor congenital weakness in his back that would predispose to injury and the compression fractures of L:4 and L:5 are compatible with a history of falling on one's back or hips. And Dr. Walters opined: In my opinion, a [f]all in 1967, would [h]ave caused [the veteran] to [d]evelop osteoarthritis. The board finds that this evidence is new, as none of these statements were part of the record at the time of the May 1971 decision and are not cumulative of other evidence available at that time. In addition, these findings both show that the veteran now exhibits a back disability, and that this disability is etiologically linked to his active service. As such, these statements are clearly probative of the central issue in this case. Accordingly, the Board finds the additional evidence submitted subsequent to the RO's May 1971 decision, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As such, this evidence is "new and material" as contemplated by law, and thus, provides a basis to reopen the veteran's claim for service connection for the residuals of a back injury. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). In addition, the Board finds that the veteran's claim for service connection of the residuals of a back injury is well grounded. See 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). Specifically, Drs. Fleenor and Walters have offered opinions linking the veteran's back disability to his active service. See Epps v. Gober, 126 F. 3d. 1464 (Fed. Cir. 1998). The Board notes that the veteran submitted additional evidence which it does not appear the RO has considered, i.e., Dr. Walter's December 1998 statement. In addition, the veteran has not given waiver of review of this evidence by the agency of original jurisdiction. However, the Board finds that there is no prejudice to the veteran in its review of Dr. Walter's statement, as the Board is granting the benefit sought on appeal. See 38 C.F.R. § 20.1304(c) (1999). ORDER New and material evidence having been submitted, the veteran's claim for service connection for the residuals of a back injury is reopened. The veteran's claim for service connection for the residuals of a back injury is well grounded. To this extent, the appeal is granted. REMAND As noted, the record contains two medical statements, one from Dr. Fleenor dated in August 1981 and one from Dr. Walters dated in December 1998, suggesting a link between the veteran's back disability and his active service. Dr. Fleenor notes that compression fractures found by X-ray at L4 and L5 are "compatible with a history of falling on one's back or hips." Dr. Walters states that "a [f]all in 1967, would have caused [the veteran] to [d]evelop osteoarthritis." However, Dr. Fleenor's statement also raises the issue of inservice aggravation of a pre-existing condition, as he states that the veteran "has a minor congenital weakness in his back that would predispose to injury." While service medical records show the veteran fell from a height of six feet in 1967, in which he injured his head and back, they also reveal that he reported a pre-service, June 1966, fall, in which he recalled hitting his head and left hip. A June 1966 statement, proffered by a private physician and contained in the service medical records, note no objective clinical or medical findings relative to the pre-service fall. The veteran has stated that he was treated at #7 Hospital at Noha Wheel (spelling unverified), Okinawa, for the injuries he sustained in the 1967 fall. The Board finds that the RO should obtain service medical and clinical medical records concerning treatment for the veteran's 1967 fall. In addition, the claims file indicates that the veteran is in receipt of Social Security Administration (SSA) disability benefits. A December 1981 Decision of Appeals Council is of record and reflects that the veteran was found disabled effective in July 1980 due, at least in part, to a diagnosis of osteoarthritis of the back with painful limitation of motion. Finally, the Board finds that a VA examination is required. Therefore, in light of the following, and in order to fairly and fully adjudicate the veteran's claim, the case is REMANDED to the RO for the following actions. 1. The RO should obtain and associate with the claims file all service medical and clinical medical records for treatment the veteran received while stationed in Okinawa in 1967. 2. After obtaining the necessary authorizations, the RO should request all records of medical treatment pertaining to the veteran's back disability provided by Drs. Ehlert, Fleenor, and Walters. In addition, all records of VA treatment since the date of the last request for such information should be associated with the veteran's claims file. In particular, the RO should request any and all records of treatment for the veteran's back disability accorded the veteran at VA Medical Center (MC) Mountain Home, Tennessee, since the veteran's discharge from active service in 1968. 3. The RO should schedule the veteran for a VA orthopedic examination to determine the etiology of the veteran's back disability. The examiner is requested to express an opinion with respect to whether it is at least as likely as not that the veteran's back disability had its onset in active service. The examiner should also be afforded the opportunity to review the claims folder. 4. The RO should review the examination report. If the report is not in complete compliance with the instructions provided above, appropriate action should be taken. Thereafter, the RO should adjudicate the issue of service connection for a back disability on a de novo basis. If the determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative with a supplemental statement of the case, and should provide an opportunity to respond prior to referring the case to the Board for further action. The purpose of this REMAND is both to obtain additional information and to accord the veteran due process of law. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals