BVA9500676 DOCKET NO. 93-05 541 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a back disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from September 1977 to August 1983. By a rating decision in August 1985, the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, denied service connection for a low back condition and for a left trapezius muscle condition claimed as a cervical spine disorder. The veteran did not appeal that rating decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1992 rating decision by the RO in Huntington, West Virginia, which determined that the veteran had not submitted new and material evidence to reopen his claim for service connection for a back disorder. Subsequent to the RO forwarding the case to the Board, the veteran submitted a statement, dated in August 1993, with attached service personnel records, that appear to raise the issues of entitlement to service connection for an eye disorder, an elbow disorder, and schizophrenia. These claims are not inextricably intertwined with the current appeal, and are referred to the RO for appropriate action. REMAND Initially, the Board determines that by the RO's rating decision in August 1985, the RO denied service connection for disorders of the back. Thus, since the veteran did not appeal that rating decision, new and material evidence must have been received since August 1985 to reopen a claim for any claimed disorders of the back. 38 U.S.C.A. § 5108 (West 1991). The Board determines that the veteran has submitted a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The veteran was seen during service in 1982 for complaints of pain in the shoulder area. He reported that he had been seen in 1981 for back pain, but there appears to be a gap in the service medical records from 1977 to 1982. X-rays of the thoracic and cervical spines were negative in 1982. His spine was noted to be normal at his examination for separation in May 1983, but he reported that he had experienced lower to mid-back pain and sudden muscle spasms in the left side of the neck. Following service, the veteran received treatment in July 1984 for spasm of the paraspinal muscle in the area of the thoracic spine. A chronic thoraco-lumbar sprain was diagnosed in April 1985 based in part on X-rays which showed subluxation of the vertebrae from L3 to S-1 and from T-11 to T-12. Shortly thereafter, VA X-rays of the thoracic spine and lumbosacral spine only showed slight narrowing of the L5-S1 interspace. The post- service medical records show treatment for a back injury related to work in 1988. Private X-rays in March 1992 revealed subluxation of various vertebrae of the cervical, thoracic, and lumbar spines. The veteran's statement's have raised questions concerning a possible injury to his back prior to service in 1975 or earlier. The evidence also shows that the veteran served in the Reserves for an unspecified period of time following active duty. He contends that his Reserve service during the 1980's aggravated a pre-existing back disorder. The Board determines that additional development of the evidence is required to assist the veteran in the development of his claim. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should request the veteran to provide it with the dates of his service in the Reserves and the units to which he was assigned. The RO should then verify the dates of service and attempt to obtain his Reserve service medical records and associate them with the record. 2. The RO should attempt to obtain the veteran's missing service medical records for his period of active duty from 1977 to 1981 and associate them with the record. 3. The RO should request the veteran provide the RO with a statement regarding the date and circumstances of his back injury prior to service. If the veteran received any treatment for a back injury prior to service, he should provide the RO with the name and current address of anyone who provided him such treatment. After receiving the proper authorization, the RO should attempt to obtain any treatment records and associate them with the record. 4. The veteran stated in his substantive appeal dated in February 1993 that the RO failed to obtain medical records from Dr. Barbara Dalton and from a doctor in Lancaster, California. In August 1991, the RO received treatment records from Dr. Dalton, dated in July 1984. In September 1991, the RO received treatment records from Dr. Benjamin Johnson in Lancaster, California, dated in April and May 1985. The RO should request that the veteran clarify to the RO whether there exist any other additional medical records regarding his back from these doctors or any other doctors which should be obtained. If so, after receiving the proper authorization, the RO should attempt to obtain the records. 5. The RO should obtain VA medical records since November 1991 pertaining to the veteran and associate them with the record. 6. After completing the action requested in the above indented paragraph, the veteran should be afforded a VA orthopedic examination to determine the existence, nature, and extent of current back disorders. All appropriate tests and studies should be performed, to include X- rays of the cervical, thoracic, and lumbar spines. The examiner is requested to review the evidence in the claims folder, including the service medical records and private treatment records prior to and following service. If the examiner diagnoses any abnormalities of the spine, the examiner is requested to offer a medical opinion as to the likely date of onset of the current disorder(s). If the examiner opines that a disorder existed prior to service, the examiner is requested to offer an opinion as to whether it increased in severity during service. The claims folder must be made available to the examiner for review prior to and during the examination. 7. Once the action requested above has been completed, the RO should again adjudicate the veteran's claim. Since the Board has not made a determination as to whether new and material evidence has been received to reopen his claim for service connection for a back disability, the RO must first decide this issue. For the purpose of determining whether his claim has been reopened, the evidence received since the rating decision in August 1985, including the veteran's statements, must be presumed to be credible. If the RO determines that he has reopened his claim, then the presumption of credibility no longer applies and the evidenced must be analyzed and weighed to determine whether service connection is warranted. See Justus v. Principi, 3 Vet.App. 510, 513 (1993). If the benefit sought on appeal is not granted, the veteran and his representative should be furnished a supplemental statement of the case and allowed the applicable period of time in which to respond before the record is returned to the Board for further review. The purpose of this REMAND is to assist the veteran in the development of his claim, and the Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required until the veteran is notified. WARREN W. RICE, JR. 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).