BVA9501763 DOCKET NO. 93-00 675 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back disability, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, P.F. and E.F. ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from July 1945 to November 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1991, rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 1992. A statement of the case was sent to the veteran in March 1992. A substantive appeal as to the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back disability, to include arthritis, was received in May 1992. In a March 1992 rating decision, entitlement to service connection for a disability of the left leg was denied. In an April 1992 letter, the veteran was notified of the denial and of his procedural and appellate rights. The veteran testified at a personal hearing at the RO in September 1992, and the hearing transcript is accepted as a notice of disagreement as to the issue of entitlement to service connection for a disability of the left leg. In an October 1993 decision, the Board remanded this case to the RO for further development. In the Board's remand decision, it was noted that the issue of entitlement to service connection for a disability of the left leg was considered on the merits and was not part of the new and material issue on appeal. The Board observes that since the RO denied that issue on the merits in the March 1992 rating decision and the veteran has submitted a notice of disagreement as to that issue, the RO should furnish the veteran with a separate statement of the case which addresses the appropriate law and regulations pertaining to service connection in regard to that issue and analysis thereof. The RO should also assure that he is afforded an opportunity to complete all procedural steps necessary to appeal an issue to the Board in accordance with the provisions of 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. § 20.200 (1993). Therefore, the only issue currently in appellate status is whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back disability, to include arthritis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he initially incurred a back injury in service which has resulted in lasting residuals. Although he acknowledges that he had some back problems prior to service, he alleges that any preexisting back problem had resolved prior to 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 the veteran has submitted new and material evidence to reopen a claim for entitlement to service connection for a back disability to include arthritis. FINDINGS OF FACT 1. In a March 1961 decision, the Board denied entitlement to service connection for lumbosacral strain with arthritis of the lumbosacral spine. 2. In support of his current request to reopen his claim for service connection for a back disability to include arthritis, the veteran has submitted 1973 to 1988 medical records of the Lester E. Cox Medical Center; 1952 to 1986 records of T. M.. Macdonnell, M.D.; a letter of C.C. Whitlock, M.D. of the Lester E. Cox Medical Center dated in September 1991; 1990 to 1992 VA outpatient records; a November 1993 VA examination; a lay statement from [redacted]; an affidavit of [redacted] dated in October 1988; an affidavit of T.M. Macdonnell, M.D.; the veteran's nephew's testimony at January 1990 and September 1992 hearings; the veteran's spouse's testimony at the September 1992 hearing; and the veteran's own testimony at the two hearings. 3. The evidence submitted in support of the request to reopen the claim is both new and material in that it must be presumed credible for purposes of reopening and so raises a reasonable possibility that a review of all the evidence would result in a grant of service connection. CONCLUSION OF LAW New and material evidence has been submitted since the Board's final March 1961 decision and the claim for service connection for a back disability to include arthritis is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a March 1961 decision, the Board denied entitlement to service connection for lumbosacral strain with arthritis of the lumbosacral spine. The Board decision is final and cannot be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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 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) (1993). According to the United States Court of Veterans Appeals, in determining whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last final denial based on the entire record, not merely the evidence added to the record subsequent to the last refusal to reopen the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). Therefore, since the last denial on the merits prior to this claim was the Board's final 1961 decision, the question now before the Board is whether new and material evidence has been added to the record following the denial of the claim by the Board in 1961. The United States Court of Veterans Appeals (Court) has established a two-step analysis which must be applied in cases in which a claimant seeks to reopen a final claim. First, there must be a determination as to whether there is new and material evidence to reopen the claim. If there is, the claim must be reviewed on the basis of all the evidence, both old and new. A decision regarding either step is appealable. Manio v. Derwinski, 1 Vet.App. 140 (1991). The Court has also stated that the credibility of new evidence is to be presumed. Therefore, if such evidence presents a reasonable possibility of changing the outcome then the claim is reopened. Thus, the ultimate credibility or weight to be given such evidence must be determined as a question of fact. Justus v. Principi, 3 Vet.App. 510 (1992). The evidence of record at the time of the Board's June 1961 decision consisted of: the veteran's service medical records; January 1960 and February 1960 statements of D.L. Yancey, M.D., a February 1960 statement of C.R. Macdonnell, M.D., an April 1960 VA examination, a November 1960 lay statement of [redacted], a December 1960 statement of F.W. Blair, M.D., and the veteran's own statements. The Board will set out a brief review of that evidence. The service medical records show that the veteran's entrance examination in July 1945 noted that the veteran had lumbosacral pain. In September 1945, the veteran reported recurrent back pain upon bending and heavy lifting. A February 1946 report of a "catch" in the lower back with pain going down both legs. The examiner noted that the veteran had scoliosis of the lumbar spine. In October 1946, the veteran was hospitalized for a 3 week observation of his back in order to determine if he had a herniated nucleus pulposus. The hospitalization report revealed complaints of acute pain in the low back. The veteran reported that he began experiencing low back pain at age fourteen. The first episode occurred while he was sawing wood and he related that he experienced numerous episodes since that time, but never sought medical treatment and experienced spontaneous remissions. He further related that the last attack occurred prior to his hospitalization after he lifted a patient while carrying out his service duties. The hospitalization report noted that by October 18, his symptoms had subsided and there was no evidence of a herniated nucleus pulposus, but rather, a diagnosis of fibrositis was made. An x-ray of the lumbosacral spine was negative. The veteran's discharge examination on October 30, 1946 revealed no abnormalities of the spine. The other evidence of record included a VA examination and several statements of private physicians' which documented the veteran's report of an in service back injury as well as the current state of the veteran's back disability. The first diagnosis of arthritis was in 1960. The lay statement related that the veteran injured his back in service, was hospitalized for a back disability, and complained of back pain. The veteran's essentially contended that he injured his back in service. The veteran has submitted extensive reportedly "new and material evidence" since the 1961 Board decision including medical records, lay statement and affidavits, and testimonies at personal hearings. In regards to the medical evidence, the veteran submitted 1973 to 1988 medical records of the Lester E. Cox Medical Center which reveal continuous treatment for a back disability since 1973. It is significant to note that these records document a long history of back problems, although the exact onset of back problems and the etiology thereof was not noted. The veteran also submitted 1952 to 1986 records of T. M.. Macdonnell, M.D., which revealed regular treatment for a back disability by that physician since 1952. At the time of initial treatment in 1952, the examiner noted back pain since service and problems involving the L4-5 disc. The veteran also submitted an affidavit of T.M. Macdonnell, M.D., which stated that he has treated the veteran since 1952 for a back disability, that the veteran was treated by his partner, C.R. Macdonnell, prior to 1952, and that the veteran has had chronic back problems since service. The veteran also submitted a letter of C.C. Whitlock, M.D. of the Lester E. Cox Medical Center dated in September 1991 which stated that the veteran has a disabling back disability. The veteran also submitted 1990 to 1992 VA outpatient records which noted complaints of back pain and other medical problems. Also of record is a November 1993 VA examination which noted a history of an inservice back injury and treatment since that time. In regards to the lay statement and affidavits, the veteran submitted a lay statement from [redacted] which related basically the same contentions as in his November 1960 statement. The veteran also submitted an affidavit of [redacted] dated in October 1988 which stated that Mr. [redacted] has known the veteran for 50 years, visited him while he was hospitalized for back problems in service, and was aware of the veteran's back problems since service. The veteran testified at two personal hearings in January 1990 and September 1992. At his 1990 hearing, he related that although he may have injured his back at the age of 14, that problem had resolved by the time he entered service. He further related that he injured his back lifting a patient in service which resulted in permanent back problems. The veteran's nephew also testified at the 1990 hearing. He related that he was not aware that the veteran had any back problems prior to service, but was aware that he had back problems since discharge. At the time of the September 1992 hearing, the veteran testified that he did not have a back disability prior to service, injured his back in service, and has had back problems since discharge. His nephew also testified again at the 1992 hearing. His testimony was essentially the same as in 1990. The veteran's wife also testified in 1992. She related that she and the veteran were married a few years after discharge. She further related that he told her of his injury in service and that he has had continuous back problems throughout their marriage. "New" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more that merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The veteran's reiterations at his two hearings that he initially injured his back while lifting a patient in service is duplicative of his assertion of the same at the time of the 1961 decision and, therefore, is not new evidence. Likewise, the lay statement submitted by [redacted] related basically the same contentions as in his November 1960 statement. That evidence is also not new since it is duplicative. The Board has also reviewed the additional evidence which is new to the record. The Board finds that the additional evidence presents a possibility that although the veteran had a preexisting back disability prior to service, that he may have developed disc problems or more severe lower back problems during or immediately following service, thus indicative that his preexisting back disability increased in pathology. alternatively, the new evidence also present a possibility that the veteran did not have a preexisting back injury, but rather initially injured his back in service which resulted in lasting residuals or tends to show that the veteran's preexisting back disability increased in pathology during service. Thus, the Board finds that the new evidence presents a reasonable possibility of changing the outcome of the veteran's case. Therefore, the foregoing evidence only for the purposes of deciding whether it is new and material must be presumed to be credible; thus, the claim is reopened. Justus. ORDER The claim for service connection for a back disability to include arthritis is reopened and, to this extent only, the appeal is granted. REMAND In light of the above decision that the veteran's claim for service connection for a back disability to include arthritis is reopened, the entire record must be reviewed. The Board finds that a VA examination by a certified neurologist and orthopedist should be conducted. The VA has a duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991). The duty to assist includes additional VA examination by a specialist, when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). As has been noted, the Court has established a two-step analysis in cases which the claimant seeks to reopen a claim that has become final. Manio. The first step, which has been decided in the above order, is to determine whether there is new and material evidence to reopen the claim. The second step, for which this case is now REMANDED, is to review the claim in light of all the evidence, both old and new, and to determine whether the evidence warrants a revision of the former decision. In doing so, the RO must make a determination on the question of fact as to the ultimate credibility or weight to be given the evidence which forms the basis of the finding that new and material evidence had been submitted. Justus. This case is REMANDED to the RO for the following actions: 1. The veteran should be afforded a VA examination by a certified neurologist and a certified orthopedist. After a complete review of all the medical records in the claims file, the examiners should be asked to offer their medical opinions as to the following questions: 1) what back disorders, if any, were present during the veteran's period of active service; 2) what was the date of the onset of any back disabilities present in service as identified in questions #1; 3) if any back disability(ies) had an onset before service, was there an increase in the underlying pathology during the veteran's period of service; 4) does the veteran currently suffer from any back disability(ies ) that was identified in question #1, and, if so, what is the current nature and extent of any back disability of the veteran. All indicated x-rays and laboratory tests should be completed. 2. The RO should readjudicate the veteran's claim for entitlement to service connection for a back disability to include arthritis in light of all evidence, both old and new, including the examination requested in paragraph #1 of this REMAND. It should make a question of fact determination on the ultimate credibility or weight to be given the evidence which was the basis for reopening the claim. Justus. 3. If the decision is adverse to the veteran, the RO should furnish a supplemental statement of the case to the veteran and his representative. The purpose of this REMAND is to afford due process of law. No action is required of the veteran until further notice. At this time, the Board makes no finding, either as to fact or law, with respect to the issue of entitlement to service connection for a back disability to include arthritis. G. H. SHUFELT 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).