BVA9502280 DOCKET NO. 93-05 828 ) 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 submitted to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active service from September 1951 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 1992 by the Department of Veterans Affairs (VA) Huntington, West Virginia, Regional Office (RO), which denied entitlement to service connection for a back disorder on the basis that the veteran had not submitted new and material evidence to reopen his claim for that benefit. Service connection for a back disorder previously has been denied by Board decisions rendered in March 1988 and September l990. However, because the extent to which the Board considered the merits of the veteran's claim in September 1990 is unclear, and according the veteran the benefit of every doubt, the Board will now review evidence received since the March 1988 denial to determine whether new and material evidence has been submitted to reopen the claim for service connection for a back disorder. See Duran v. Brown, No. 93-338 (U.S. Vet.App. Dec. 13, 1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that new and material evidence sufficient to reopen his claim of entitlement to service connection for a back disorder has been submitted. He maintains that this new evidence demonstrates that he incurred a back disorder during active service. Therefore, he requests a favorable determination by the Board. 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 new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. That evidence, however, does not provide a new factual basis for allowance of this claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A March 1988 Board decision denied the veteran's claim of entitlement to service connection for a back disorder. 3. The evidence associated with the claims file subsequent to the March 1988 Board decision is not cumulative and provides information that was not already of record which is relevant and probative of the issue at hand. 4. A chronic back disorder was not manifested during active service. CONCLUSIONS OF LAW 1. The decision of the Board in March 1988 that determined that the veteran was not entitled to service connection for a back disorder is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991); 38 C.F.R. § 20.1100(a) (1993). 2. The evidence received since the Board denied the veteran's claim of entitlement to service connection for a back disorder is new and material and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1993). 3. A chronic back disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a back disorder was denied by the Board in a March 1988 decision. The evidence of record at that time consisted of the available service medical records, the report of a July 1958 VA examination, a July 1976 VA x-ray report, a July 1976 VA outpatient treatment record, a December 1986 notarized statement from [redacted], a March 1987 notarized statement from [redacted], and a March 1987 statement from [redacted]. Most of the veteran's service medical records are missing and are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The only service medical record that has been associated with the veteran's claims file is the report of an August 1955 service medical examination that was conducted shortly before the veteran's separation from service. This report indicates that there were no abnormalities of the veteran's spine. The report of the July 1958 VA examination does not contain any complaints, findings, or diagnoses referable to the veteran's back. The July 1976 x-ray report shows a slight scoliosis convexity to the right with the apex at L3, exaggerated lordotic curve, questionable compression of the superior endplate of L3, spondylosis at L3-4, and narrowing at L1-2 and L2-3. The July 1976 VA outpatient treatment record indicates that the veteran complained of back pain and of an inability to wear his prosthesis due to this pain. The December 1986 statement from Mr. [redacted] reveals that he was stationed with the veteran in 1954 and 1955 and that the veteran complained of back trouble during that time. The March 1987 statement from Mr. [redacted] indicates that the veteran had severe back pain in June 1956 and that he therefore drove the veteran to a doctor's office. The March 1987 statement from Ms. [redacted] discloses that she worked in a doctor's office for more than ten years and that the veteran sought treatment on numerous occasions during that time. When a claim is disallowed by the Board it may not thereafter be reopened and allowed, except on the basis of new and material evidence presented with respect thereto. 38 U.S.C.A. §§ 5108, 7104(b). In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (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). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The evidence that has been associated with the veteran's claims file since the March 1988 Board decision consists of: (1) a letter from the veteran to his mother, apparently written in April 1953; (2) Social Security Administration records dated from July 1976 to March 1980; (3) an October 1976 letter from Hassan Vaziri, M.D.; (4) a September 1977 letter from Gary Craft, M.D.; (5) VA outpatient treatment records dated from 1979 to 1982; (6) private outpatient treatment records dated from 1979 to 1982; (7) medical records from Bruce A. Guberman, M.D.; (8) a December 1982 x-ray report from W. Alva Deardorff, M.D.; (9) a January 1987 receipt from S.S. Jamie, M.D.; (10) a March 1987 notarized statement from [redacted]; (11) an undated letter from C. W. Stallard, Jr., M.D.; (12) a March 1989 notarized statement from [redacted]; (13) April 1990 records from Orthopaedic Associates, Inc.; (14) March 1991 records from Bone and Joint Surgeons, Inc.; (15) a June 1992 letter from James M. Dauphin, M.D.; (16) the transcript of the veteran's August 1992 personal hearing; (17) an August 1992 notarized statement from [redacted]; and (18) a September 1992 notarized statement from [redacted]. Items (5), (8), (9), and (10) are not new as they are cumulative or redundant of the evidence that was of record prior to the Board's March 1988 decision. Items (2) - (4), (6), (7), (11), (12), (13) - (15), and (17) are new but not material. Items (2) - (4), (7), (13), and (14) constitute new evidence because they contain diagnoses of the veteran's back disorder that were not of record at the time of the March 1988 Board decision. They do not, however, constitute material evidence as they do not relate the veteran's current back disorder to his active service. Items (6) and (11) are not material because they apparently do not address the veteran's back disorder. Item (15) is not material because, although it relates the veteran's current back disorder to his period of active service, it is based almost exclusively upon the veteran's account of his medical history that had been rejected by the March 1988 Board decision. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). Lastly, item (17) is not material because it only relates the veteran's back problems to 1958, approximately three years following his discharge from service. Items (1), (12), (16), and (18) are new and material because they are not cumulative or redundant of evidence that was of record prior to the March 1988 Board decision and they are relative and probative of the issue at hand as they relate the veteran's current back disorder to his active service. Since new and material evidence has been presented, the veteran's case is reopened and the merits of the veteran's claim in light of all the evidence, both new and old, will be evaluated. See Manio, 1 Vet.App. at 145. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The evidence that was of record prior to the March 1988 Board decision has been previously reported in this decision. The letter which the veteran apparently wrote to his mother in April 1953 indicates that he injured his back while working in a warehouse and that he was instructed by his doctor to place a piece of plywood under his mattress. The Social Security Records contain diagnoses of osteoarthritis of the lumbar spine and an above-the-knee amputation of the right leg. The October 1976 letter from Dr. Vaziri shows that the veteran reported experiencing intermittent back pain for several years. Tenderness over the lumbosacral area as well as significant limitation of motion were noted. X-rays demonstrated anterior marginal spurring of the lower lumbar vertebrae. Diagnoses of osteoarthritis of the lumbar spine and chronic back strain due to osteoarthritis and the amputation of the right leg were recorded. The September 1977 letter from Dr. Craft indicates that the veteran had a five-year history of progressive low back pain and stiffness. Upon examination, a moderate increase in lordosis was noted. Palpation over the entire lumbosacral spine produced moderate pain and straight leg raising was positive at 60 degrees on the left and 45 degrees on the right. X-rays showed moderate osteoarthritis with moderate sized hypertrophic spurs involving L3 and L4 as well as marked narrowing of the intervertebral space at L5-S1. The VA outpatient treatment records dated from 1979 to 1982 reveal that the veteran sought treatment for back pain on a number of occasions. The private outpatient treatment records dated from 1979 to 1982 are very difficult to read, but do not appear to regard treatment of the veteran's back. The medical records from Dr. Guberman indicate that the veteran reported developing low back pain in 1975 or 1976. Dr. Guberman also noted that the veteran had limitation of lumbar spine motion with tenderness but no paravertebral muscle spasm. Straight leg raising was normal to 90 degrees. An impression of acute and chronic lumbosacral strain was recorded. The December 1982 x-ray report from Dr. Deardorff demonstrates minimal scoliosis with a low thoracic curve to the left and a mid-lumbar curve to the right, minimal degenerative disc disease at the third lumbar interspace with a bony spur, and a ten percent loss in height of the T12 vertebral body. The January 1987 receipt from Dr. Jamie contains a diagnosis of low back pain. The March 1987 notarized statement from [redacted] has been previously reported in this decision. The letter from Dr. Stallard indicates that he no longer had the veteran's medical records and did not remember when or for what reason he treated the veteran. The March 1989 notarized statement from Ms. [redacted] indicates that while the veteran did not have any back problems prior to his entrance into active service, he did experience constant back problems following his discharge from service. Ms. [redacted] also revealed that the veteran reported that he had been hospitalized during service due to back problems. The April 1990 records from Orthopaedic Associates, Inc., contain diagnoses of degenerative disc disease and spondylosis of the lumbar spine. The March 1991 records from Bone and Joint Surgeons, Inc., reveal that the veteran apparently hurt his back some time after his discharge from active service. X-rays demonstrated degenerative disc disease at L3-4 with traction spurs and eccentric loading to the left as well as slight narrowing at L5-S1 with some traction spurs at the thoracolumbar junction. The examiner noted that the veteran had long-standing degenerative disc disease that could not be attributed to any single isolated incident. The June 1992 letter from Dr. Dauphin indicates that the veteran reported spraining his back in the early 1950's while on active duty and that he has experienced low back pain since that time. Dr. Dauphin noted that the veteran provided him with a note dated in December 1986 which documents that the veteran had a back injury in 1954 and 1955. During his August 1992 personal hearing, the veteran testified that he had injured his back in February or March 1953 while lifting shelves in a warehouse. The veteran further asserted that as a result of his injury, he slept on a piece of plywood for the remainder of his period of active service. Additionally, the veteran stated that he has continued to experience back pain since his separation from service. The August 1992 statement from Ms. [redacted] indicates that the veteran began employment at H.O. [redacted] Wood Products, Inc., in 1958 and that he occasionally missed work due to his back problems. Ms. [redacted] further noted that the veteran eventually was forced to retire as a result of his back problems. The September 1992 statement from Mr. [redacted] reveals that the veteran had experienced back problems since his discharge from active service. Upon a review of the evidence of record, the Board concludes that service connection for a back disorder is not warranted. In this regard, the Board notes that although the veteran apparently experienced back pain during active service, he did not incur a chronic back disorder as the report of the August 1955 service medical examination does not indicate any abnormalities of the veteran's spine. In fact, the veteran apparently did not seek treatment for a back disorder until July 1976. Further, the veteran did not report any back problems during a July 1958 VA examination and documents from Bone and Joint Surgeons, Inc., as well as the record from Drs. Craft and Guberman, reveal that the veteran did not develop back pain until after his separation from service. The Board further notes that the claims file is devoid of any credible objective medical evidence relating the veteran's current back disorder to his active service. In fact, the March 1991 medical records from Bone and Joint Surgeons, Inc., reveal that the veteran's back disorder could not be attributed to a single isolated incident. Although the June 1992 letter from Dr. Dauphin indicates that the veteran developed a back disorder during service, such a determination carries little probative weight as it is based upon a history provided by the veteran that is not supported by the clinical evidence of record. In addition, while the veteran, Ms. [redacted], and Mr. [redacted] have related the veteran's current back disorder to his active service, such opinions carry little probative weight as they were rendered by laypersons who are not competent to address issues requiring expert opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). Given all of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a back disorder. As such, there is not an approximate balance of possible and negative evidence regarding the merits of the veteran's claim which would give rise to a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). ORDER Service connection for a back disorder is denied. JACQUELINE E. MONROE 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.