BVA9507476 DOCKET NO. 93-12 897 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 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: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1952 to January 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 1991 by the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO). In the decision, the RO determined that the veteran had not presented new and material evidence to reopen a claim for service connection for a back disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to reopen and grant his claim for service connection for a back disorder. He asserts that he injured his back during service during the same fall which resulted in his service-connected residuals of metatarsal fractures of the right and left feet. He also asserts that service connection for a back disorder may be granted on the basis that his service-connected disorders of the feet caused his back disorder. 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 not presented new and material evidence to reopen a claim for service connection for a back disorder. FINDINGS OF FACT 1. The veteran's claim for service connection for a back disorder was previously denied by the Board in a decision of July 1989. 2. The additional evidence presented since July 1989 is cumulative and redundant with regard to previously considered evidence. CONCLUSIONS OF LAW 1. The decision by the Board in July 1989 which denied service connection for a back disorder is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 3.310 (1994). 2. The additional evidence presented since July 1989 is not new and material, and the claim for service connection for a back disorder has not been reopened. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). Degenerative arthritis which is manifest to a compensable degree within one year after separation from service may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for disability which is proximately due to or the result of a service connected disorder. See 38 C.F.R. § 3.310 (1994). The veteran's claim for service connection for a back disorder was previously denied by the Board in a decision of July 1989. The evidence which was of record in July 1989 included the veteran's service medical records and a report of a VA disability evaluation examination conducted in March 1956. The Board noted that: Service medical records disclose that he was admitted to a medical facility in February 1955 after sustaining injury to the feet in a fall. He made no reference to having injured the back. An examination was conducted in January 1956 for service separation. The spine was evaluated as normal. No back disorder was noted in service medical records. A Department of Veterans Affairs examination was conducted in March 1956. The veteran complained of occasional back pain. There was no back spasm; the back had full motion. X-rays of the lumbar spine and sacrum show that the neural arch of the first sacral segment had incomplete fusion. Bone and joint structures were otherwise within normal limits. The orthopedic diagnoses included no organic pathology of the back found. Also of record at that time was a report of a VA examination conducted in March 1988, and a transcript of testimony given by the veteran and his wife during a hearing held in February 1989. In summarizing that evidence, the Board wrote that: A Department of Veterans Affairs orthopedic examination was conducted in March 1988. The veteran related that he had injured his back in a fall in service in 1955. He remarked that he had experienced back pain over the past 12 to 14 years, which had especially increased over the past 5 to 6 years. On examination, the veteran walked with an antalgic gait, favoring both lower extremities; he used a cane. Motion was painful and forward flexion was possible to 60 degrees. There was decreased sensation over the L4 dermatome. The impressions included lumbar spondylosis with evidence of left lower extremity radiculopathy. The examiner believed that the veteran's abnormal mechanics, due to bilateral foot problems, plus an initial injury to the back in 1955, had contributed to back pain. A hearing was held before a traveling section of the Board of Veterans Appeals in February 1989. The veteran testified that he had sustained a back injury in service in the same fall in which he had injured his feet. In further testimony, he stated that a back condition had worsened over the years since service, because of his service-connected bilateral foot disorder. He remarked that back pain, which had persisted since the fall in service, had become particularly severe during the past four years. He denied post service industrial injuries or car accidents. In discussing and evaluating the evidence which was of record in July 1989, the Board made the following comments: Although the veteran asserts that he injured his back in service, that assertion is not supported by service medical records, which are negative for back trauma or abnormality. Acquired low back disability was first demonstrated many years after service. The only pertinent finding within a year of active service was of a developmental nature, not for consideration here. The record provides no reasonable basis for attributing the onset of a back disability to service. It has been contended that a back disability developed secondary to a service-connected bilateral foot disorder. However, having reviewed the record in its entirety, the Board concludes that any gait disturbance or mechanical imbalance attributable to the service-connected foot disorder was not sufficient to cause the current back disability. When a claim is denied by the Board, it may not thereafter be reopened and allowed, and no claim based on the same factual basis may be considered. See 38 U.S.C.A. § 7104 (West 1991). When, however, a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination must be made as to whether such evidence is new and material. If the evidence is new and material, then the claim has been reopened. See 38 U.S.C.A. § 5108 (West 1991). See also Manio v. Derwinski, 1 Vet.App. 140 (1991). New and material evidence means evidence not previously submitted to the agency decision makers which bears directly and substantially upon the specific matter under consideration and which is neither cumulative nor redundant. See 38 C.F.R. § 3.156 (1994). There must be reasonable possibility that the additional evidence presented since July 1989, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence presented since July 1989 is cumulative and redundant with regard to previously considered evidence. The additional evidence consists primarily of recent medical treatment records. For example, a VA hospital discharge summary dated in November 1990 shows that the veteran was treated for chronic low back pain. He gave a history of having crushed a vertebra as a result of a fall during service. The discharge diagnosis was "chronic low back pain secondary to traumatic fall". The Board notes, however, that the history of having sustained a crushed vertebrae during service is contradicted by the veteran's service medical records. The service medical records contain numerous detailed records pertaining to treatment which the veteran received after the fall during service, and none of the records contain any indication that there was any injury to the veteran's back. If the veteran had actually sustained a "crushed vertebra" during the fall, it certainly would have been noted in the treatment records. Because the diagnosis of "chronic low back pain secondary to traumatic fall" contained in the November 1990 VA hospital discharge summary was based on an incorrect history, it has essentially no probative value and cannot provide a basis for reopening a claim. See Kightly v. Brown, 6 Vet.App. 200, 206 (1994), in which the United States Court of Veterans Appeals held that a physician's opinion that a disability was incurred during service was not new and material evidence for the purposes of reopening a claim for service connection for that disability because the opinion was based on an inaccurate history. The same analysis applies to the other recent medical treatment records containing a history of a back injury during service. The additional evidence presented since July 1989 includes testimony given by the veteran and his wife at a hearing held in October 1992. However, that testimony essentially duplicated the testimony which had previously been given during the hearing held in February 1989. For the foregoing reasons, the Board finds that the additional evidence presented since July 1989 is not new and material, and the claim for service connection for a back disorder has not been reopened. ORDER New and material evidence not having been presented to reopen a claim for service connection for a back disorder, the benefit sought on appeal is denied. 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. 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.