BVA9507591 
DOCKET NO.  93-09 054     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Togus, Maine

THE ISSUE

Whether new and material evidence sufficient to reopen a claim
for a cervical disability has been received.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran served on active duty from March 1973 to March 1976.
In April 1991 the Board of Veterans' Appeals denied service
connection for residuals of injury to the cervical spine.

This matter came before the Board of Veterans' Appeals (Board) on
appeal from a March 1992 rating decision from the Togus, Maine,
Regional Office (RO).

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that the veteran's cervical disability was
aggravated during 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(s).
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 claim for service connection for a cervical
disability is reopened.

FINDINGS OF FACT

1.  In April 1991, the Board of Veterans' Appeals denied service
connection for a cervical disability.  The Board determined that
the cervical disability had clearly preexisted service and that
it had not been aggravated by service.

2.  Since the 1991 Board decision, the veteran submitted medical
evidence to the effect that training could have aggravated the
cervical disability.

3.  The private medical evidence is relevant and probative of the
issue at hand.  If accepted as true, the documents establish a
reasonable possibility that the outcome would be changed.

CONCLUSION OF LAW

The 1991 decision of the Board is final.  New and material
evidence sufficient to reopen the claim has been received.  38
U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156,
20.1100, 20.1105 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

It is unclear from the actions taken by the regional office
exactly what has been decided.  In April 1991, the Board of
Veterans' Appeals entered a binding, final decision denying
service connection for a cervical disability.  The March 1992
rating decision did not clearly establish whether there had been
new and material evidence sufficient to reopen the claim or that
the claim had been decided de novo.  The statement of the case
made no reference to new and material evidence or the law
regarding finality.

The hearing officer's decision addressed finality.  However, it
is unclear whether the hearing officer was addressing the
finality of the Board decision or the finality of the March 1992
rating decision under the provisions of 38 C.F.R. § 3.304 (1994).
The supplemental statement of the case noted that the reader
should refer to the prior statement of the case.  Although the
supplemental statement of the case referred to the issue as
whether there was new and material evidence, the document did not
provide the law and regulations regarding finality.  Similarly,
the statement of the case did not contain the pertinent law and
regulations.

Because of the confusion in this case, the Board shall clarify
the issue by entering a decision and then remanding the case for
appropriate development.

The law, regulations and decisions of the United States Court of
Veterans Appeals establish that the prior decisions of the Board
are final and may not be reopened in the absence of new and
material evidence.  38 U.S.C.A. §§ 5108, 7104 (West 1991);
38 C.F.R. §§  3.156, 20.1100, 20.1105 (1993); Manio v. Derwinski, 1
Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990).
When a claim is disallowed by the Board, the claim [generally] may
not thereafter be reopened and allowed and a claim based upon the
same factual basis may not be considered.  38 U.S.C.A. § 7104 (b)
(West 1991).  The exception to this rule is 38 U.S.C.A. § 5108
(West 1991), which states:  If new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review the
former disposition of the claim.  Masors v. Derwinski, 2 Vet.App.
181, 184 (1992).

First, the Board must determine whether the evidence is "new and
material."  Second, if the Board determines that the claimant has
produced new and material evidence, the case is reopened and the
BVA must evaluate the merits of the veteran's claim in light of all
the evidence, both new and old.  The new evidence may not be
sufficient in and of itself, but it may be just enough, when all
the evidence is considered, to create an approximate balance of
positive and negative evidence which would entitle the veteran to
the benefit of the doubt.  Manio v. Derwinski, 1 Vet.App. 140, 145
(1991).

The Board previously denied service connection for a cervical
disability that had preexisted service and which had not been
aggravated by service.  At the time of the decision, there was an
absence of competent evidence demonstrating an increase in
severity or an increase in severity due to anything other than
natural progress.  Since the 1991 decision, the veteran has
submitted statements from C. A. Brinkman, M.D., and B. Trembly,
M.D.  Each is a medical professional and each is competent to
enter a medical opinion.  One doctor opined that physical
activity occasioned by basic training was part of the mechanism
which caused his symptoms to become apparent.  The other examiner
felt that basic training could have aggravated the underlying
contusion.

The opinion's of the examiners are competent, relevant and
probative of the issue at hand.  For purposes of determining
whether the claim should be reopened, the credibility of the
statement must be presumed.  Justus v. Principi, 3 Vet.App. 510,
513 (1992).  Since such statements were not previously of record,
it is concluded that the veteran has submitted new and material
evidence.

ORDER

The claim for service connection for a cervical disability is
reopened.

REMAND

The regional office must have an opportunity to review all the
evidence of record and develop the record.

Accordingly, the case is remanded for the following:

1.  The veteran should be scheduled for an
examination by a neurologist.  The claims
file must be made available to the
examiner.  The examiner is requested to
enter a diagnosis that best describes the
veteran's current condition.  After
reviewing the record, the examiner should
enter opinions regarding the following.  1.
Did a cervical disability preexist service?
2. Was there an increase in severity of the
preservice cervical condition during the
veteran's period of service?  3. If there
was an increase in severity of the
preservice condition, was such increase due
to natural progress of the preservice
condition?  The examiner is requested to
enter the reasons for the decisions.

2.  The regional office must enter a de
novo decision regarding the issue of
entitlement to service connection for a
cervical disability.  The regional office
should consider the presumption of
soundness, the presumption of aggravation,
and the guidance established by the United
States court of Veterans Appeals.  See
Browder v. Derwinski, 1 Vet.App. 204
(1991); Akins v. Derwinski, 1 Vet.App. 228
(1991); Green v. Derwinski, 1 Vet.App. 320
(1991).

If, upon completion of the above action, the claim remains
denied, the case should be returned for further appellate
consideration.

          H. N. SCHWARTZ
          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.

In regard to whether the claim should be reopened, the following
applies:  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.

In regard to the remaining issue, the following applies:  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) (1994).