Citation Nr: 0001083 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-33 728 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from August 1966 to May 1968. Entitlement to service connection for a back disorder was previously denied by the Board of Veterans' Appeals (hereinafter Board) in a decision entered in December 1990, on the basis that the veteran's preexisting back disorder had not been aggravated by service. This current matter came before the Board on appeal from a rating decision of May 1997, by the Roanoke Regional Office (RO), which denied the veteran's attempt to reopen his claim for service connection for a back disorder. The notice of disagreement with this determination was received in June 1997. A private medical statement was received in August 1997. The statement of the case was issued in September 1997. The substantive appeal (VA Form 9) was received in November 1997. The veteran appeared and offered testimony at a hearing before a hearing officer at the RO in March 1998. Additional evidence was submitted at the hearing. A transcript of the hearing is of record. A supplemental statement of the case was issued in June 1998. The appeal was received at the Board in September 1998. The veteran has been represented throughout his appeal by Virginia Department of Veterans Affairs, which submitted written arguments to the Board in October 1999. FINDINGS OF FACT 1. In a decision dated in August 1970, the Board denied entitlement to service connection for residuals of a back injury. 2. The evidence received since the August 1970 Board decision, which includes additional service medical records, military personnel records, hearing testimony, and private medical evidence, bears directly and substantially on veteran's claim, and must be considered in order to fairly decide the merits of the claim. 3. The veteran's claim for service connection for a back disorder is supported by evidence demonstrating that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The August 1970 Board decision, which denied service connection for a back disorder, was final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. The evidence received since the August 1970 Board decision, which denied entitlement to service connection for a back disorder, is new and material, and the veteran's claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1999). 3. The veteran's claim of entitlement to service connection for a back disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When the Board or the RO has disallowed a claim which is, or becomes final, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). As set forth in the Introduction section of this decision, the veteran's present appeal arises from his attempt to reopen a previous claim which was denied in a final decision of the Board in August 1970. Because the present appeal does not arise from an original claim, but rather comes from an attempt to reopen a claim which was previously denied, the Board must bear in mind the important distinctions between those two types of claims. Prior to our discussion of the evidence which has been obtained in connection with the veteran's current appeal, we must first note that the United States Court of Appeals for Veterans Claims had previously held that the Secretary of Veterans Affairs and, on appeal, the Board, were required to perform a two-step analysis when a claimant sought to reopen a claim based upon new evidence. First, it was to be determined whether the evidence was "new and material." Second, if the Board determined that the claimant had produced new and material evidence, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 144 (1991). Whether the new evidence was "material" turned essentially upon whether there was a reasonable possibility that, when viewed in the context of all the evidence, it would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court more recently held that the two-step Manio process has been replaced with a three-step process. See Elkins v. West, 12 Vet.App. 209 (1999) (en banc), interpreting and applying a decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The procedure which we must now follow is - first, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a); second, after the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim, as reopened, is well grounded; third, if the claim is well grounded, the merits of the claim must be addressed and, if ripe for decision, adjudicated. Winters v. West, 12 Vet.App. 203, 206 (1999) (en banc). In addition, Hodge overruled Colvin and its progeny as to the materiality element of the new-and-material-evidence test. See Elkins, supra, at 214. As defined by regulation, new and material evidence means evidence not previously submitted 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 the 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 Federal Circuit Court has held that the regulatory standard alone must be the test of materiality. Hodge, supra. In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance ("on any basis" - merits or otherwise) of the claim, and is not "merely cumulative" of other evidence which was then of record. See Evans v. Brown, 9 Vet.App. 273, 283-285 (1996). This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Although, as noted above, Hodge overruled Colvin and its progeny as to the materiality test, it does not appear that the analysis as to what is new evidence has been overruled. See Vargas-Gonzalez v. West, 12 Vet.App. 321, 326 (1999), noting that Hodge did not deal with the test for determining whether evidence is new, which is a determination separate from whether it is material. As to the materiality standard, the Federal Circuit's holding in Hodge has been interpreted by a panel of the Court of Appeals for Veterans Claims: "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim." Fossie v. West, 12 Vet.App. 1, 4 (1998), motion for recon/review denied, 12 Vet. App. 234 (1999). In determining whether newly submitted evidence is material under the caselaw discussed above, we are further guided by the Federal Circuit Court's discussion of the "uniquely pro-claimant" quality of the veterans' benefits system such that, although "not every piece of new evidence is 'material' . . . we are concerned . . . that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, supra, at 1363. The credibility of new evidence is assumed for the limited purpose of determining whether it is material. Justus v. Principi, 3 Vet.App. 510 (1992). As noted above, under the precedent decision of the Court in the Evans case, supra, in order to reopen a previously and finally denied claim there must be new and material evidence entered into the record since the most recent denial on any basis, either on the merits or on an attempted reopening. Id. at 285. Therefore, as previously explained, the evidence which must be considered at this time, in connection with the veteran's claim of service connection for a back disorder, is that which has been submitted since the Board's previous final decision addressing that matter. When the claim for service connection for a back disorder was denied by the Board in August 1970, the record included the service medical records and a private hospital report dated in May 1966. The service medical records show that an old back injury with mild symptoms was noted on the enlistment examination, conducted in April 1966. Subsequently, the veteran was seen on sick call on January 11, 1968, at which time he indicated that he had injured his back approximately 7 years before and that, since that time, he had experienced frequent episodes of mid-back pain. Examination revealed lower thoracic kyphosis; no neurological loss was noted. The impression was of possible abnormality of a thoracic disc. On January 15, 1968, the veteran underwent a special orthopedic evaluation, including an X-ray study, which was reported to be within normal limits; the pertinent diagnosis was lumbosacral strain. Later, on February 16, 1968, the veteran reported on sick call with complaints of low back pain, worse when riding in a helicopter; the impression was low back strain. The separation examination, conducted in May 1968, was negative for any complaints or findings of a back disorder. Received in January 1969 was a private hospital report, dated in May 1966, indicating that the veteran had been seen because of continuous pain in the mid-portion of his back for the past several years. The veteran reported injuring his back on a trampoline 5 years before; he stated that he was taken to a private hospital and kept there for a few days. He indicated that he had experienced pain in his back, especially in the mid-portion, on sitting; the pain was of the burning type. He also indicated that walking caused discomfort, and that he had stiffness in the low back area and in his legs; he stated that he was unable to bend and touch the floor. On examination, it was noted that he had a gibbus deformity localized about the 11th dorsal vertebra, with pain in that area. Straight leg raising was limited to about 60 degrees, by tight hamstring muscles. An X-ray study of the dorsolumbar spine revealed a slight wedging of the 9th vertebra. The veteran was placed on extension exercises. As noted above, the Board's August 1970 decision denied the veteran's claim for service connection for a back disorder on the basis that he had incurred a preexisting back disorder, which had not been aggravated by military service. The evidence received since the August 1970 decision essentially consists of: additional service medical records; military personnel records; private treatment reports dated from July 1996 to August 1996; a private medical statement from Dr. Steven R. Prince, dated in August 1997; and veteran's testimony offered at a personal hearing held in March 1998. The Board notes that the newly submitted service medical records are new and material. Significantly, the service medical records include a notation indicating that the veteran was seen on sick call in October 1966, complaining of pain in his neck and back as a result of a car accident; the impression was low back strain. Also submitted was a unit history of February 1968, which confirmed that the veteran's unit was involved in a helicopter crash. These records are probative as to the question of an inservice injury which caused the veteran to seek treatment for back pain in service. The newly received medical records are also both "material;" that is, we find the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Of significance is the fact that the medical evidence of record shows that the veteran currently suffers from a low back disorder. The medical evidence of record in August 1970 showed only a deformity of the dorsal spine, and X-ray study of the lumbar spine had been normal; however, an MRI conducted in August 1996 revealed leftward L5-S1 disc extrusion, with S1 nerve root displacement, and small subligamentous disc protrusion at L4-5. In addition, the medical evidence indicates an opinion by the veteran's medical care provider that his current low back disorder is related to service. In the medical statement dated in August 1997, Dr. Prince essentially related the veteran's current back pain and disc condition to his period of service. Finally, in his testimony before the hearing officer of the RO, the veteran indicated that he injured his back during the aforementioned car accident and helicopter crashes in October 1966 and February 1968, respectively. He asserted that, while he was, in fact, injured prior to service, that injury affected only his upper back. He maintained that the inservice injuries caused him to develop pain in the lower back, which has continued to bother him until the present. The foregoing evidence is new because it is not cumulative. Moreover, it is material because it specifically relates to the existence of a current low back disability, other than wedging of the 9th vertebra, and it is probative as to the incurrence of a low back disorder during service. This evidence, under Justus, must be presumed to be credible for purposes of determining whether the evidence is new and material. Therefore, the Board finds that the veteran's claim of entitlement to service connection for a low back disability should be reopened. Following the Federal Circuit's decision in Hodge v. West, supra, the Court had the opportunity to discuss the relationship between determinations of new and material evidence to reopen and those of well-groundedness. See Elkins v. West, 12 Vet. App. 209 (1999). The Court also noted that, in rejecting the Colvin reasonable-possibility- of-outcome-change test, Hodge effectively decoupled the existing relationship under the Court's caselaw between determinations of well-groundedness and of new and material evidence to reopen. Prior to Hodge, no opinion of the Court had ever suggested that evidence that was sufficient to reopen might not be sufficient to well ground a claim. See, e.g., Moray v. Brown, 5 Vet. App. 211, 214 (1993) (quoting Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992)) (new and material evidence "is, by its nature, well grounded"); Robinette v. Brown, 8 Vet.App. 69, 76 (1995) (a lower evidentiary threshold is applicable to determining whether a claim is well grounded); Edenfield v. Brown, 8 Vet.App. 384, 390 (1995) (en banc) (the difference, if any, between the evidence necessary to present a well-grounded ("plausible") claim and that needed to satisfy the third new-and-material- evidence requirement ("reasonable possibility") is slight.). A claimant seeking benefits under a law administered by the Secretary of VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist the claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the claimant has presented a well-grounded claim; that is, a claim which is plausible under the law. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him in the further development of his claim, as any such additional development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990); see also Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table), wherein the Court held that a well-grounded claim requires evidence of a current disability, an inservice disability, and a nexus or link between the two. As explained below, the Board finds that the veteran's claim is well grounded. Service connection will be granted if it is shown that a particular disease or injury resulting in disability was incurred or aggravated during active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet.App. 309, 314 (1993). The service medical records clearly indicate that the veteran was involved in a car accident in October 1966; while X-ray study of the back was negative, the veteran received treatment for backache and was placed on medication. He testified that he has suffered from constant pain in the lower back ever since his discharge from service. In the medical statement from Dr. Prince, dated in August 1997, it was stated that the back pain the veteran was experiencing was very likely related to the back pain as it presented while he was in the military in the 1960's. In light of these findings, the Board is of the opinion that the veteran has presented a well-grounded claim of service connection for a back disorder. ORDER The veteran's claim of entitlement to service connection for a back disorder is both reopened and well grounded. To this extent, the appeal is granted. REMAND In view of the favorable action taken above, in which we concluded that the claim for service connection for a back disorder may be reopened and that it is well grounded, the next step is to evaluate the merits of the claim. Such action, requiring the weighing of the evidence, must only be done after ensuring that VA's duty to assist in the development of well-grounded claims has been fulfilled. As discussed above, in determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, supra. However, at this juncture, de novo review requires that all the evidence be carefully weighed, that probative weight be assigned to each item of evidence, and that credibility be assessed. A review of the record indicates that the service medical records may be incomplete. The service medical records indicate that the veteran was transported by helicopter to a hospital in October 1966 for evaluation of his back following a car accident; however, the record contains no clinical records pertaining to the evaluation of his back at that time. The Board finds that, in light of the evidence discussed above, additional development is required. In addition, the Board notes that the record is ambiguous with respect to the etiology of the veteran's service- connected back disability. Specifically, medical records obtained closer to the time of active service indicate that the veteran had a disability involving the dorsolumbar region as a result of a fall from a trampoline; also, the enlistment examination reported an old back injury. However, the service medical records also indicate that the veteran was involved in an automobile accident, following which he received treatment for back pain and was diagnosed with low back strain. As noted above, there has been some suggestion by a private physician, in 1997, that the veteran's current back pain is related to the back pain as it presented in service, which would suggest an inservice origin for the veteran's disorder. However, the record does not contain any clinical records from the veteran's private physician. At his personal hearing in March 1998, the veteran indicated that he had no problems with his lower back prior to the car accident in October 1966, but that, after the accident, he went to doctors at least three or four times for back pain. He testified that he subsequently went to Vietnam in March 1967. There, he said he was involved in two helicopter crashes, as a result of which he experienced problems with pain in his low back that radiated into his lower extremities. The veteran indicated that he was currently receiving treatment from Dr. Prince and Dr. Smith, an orthopedic specialist. The veteran also indicated that he went to the VA Medical Center in Johnson City in 1969 and 1970 for his back. The Board finds that all VA records should be obtained before a decision is entered, as they are constructively of record. See Bell v. Derwinski, 2 Vet.App. 611 (1992). To ensure that all evidence potentially relevant to the veteran's claim is obtained, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the RO for further development as follows: 1. The RO should ask the veteran to identify all VA and non-VA medical providers who have examined or treated him for a low back disorder since his release from active duty in 1968. Following the procedures of 38 C.F.R. § 3.159, the RO should obtain the related medical records that are not already on file, including reported records of treatment at the VA Medical Center in Johnson City, and any additional records of Dr. Prince and Dr. Smith (including patient history and clinical records from initial visits). 2. The RO should request the National Personnel Records Center to conduct a search for any additional medical records for the veteran's period of active duty, to include any records pertaining to the automobile accident in October 1966 and clinical records from Womack Army Hospital, as well as any records pertaining to the helicopter crash in February 1968. 3. Upon completion of the above development, the RO should then afford the veteran a VA orthopedic examination, in order to determine the nature, severity and etiology of any back disorder. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should specifically state whether he/she had the opportunity to review the claims folder. All appropriate tests and studies should be accomplished at this time. Following the examination, it is requested that the examiner render an opinion as to whether it is as likely as not that any current disability involving the low back, to include any disc disease of the lumbar spine, is related to injuries sustained in service, or other event of service origin. A complete rational for any opinion expressed should be included in the examination report. 4. The veteran is hereby advised that it is his obligation to cooperate with the RO in development of evidence, and that adverse consequences may result from failure to report for a VA examination without good cause, as set forth in 38 C.F.R. § 3.655 (1999). 5. Thereafter, the RO should readjudicate the veteran's claim of entitlement to service connection for a back disability, upon a de novo review of the record. If the decision remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case which summarizes the pertinent evidence and all applicable law and regulations, and reflects detailed reasons and bases for the decision. They should then be afforded a reasonable time period in which to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The purposes of the REMAND are to further develop the record and to accord the veteran due process of law. 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals