Citation Nr: 0005274 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-29 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for residuals of a laceration of the left hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from January 1943 to February 1946. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. In a March 1959 Board decision, service connection was denied for a low back disorder and for residuals of a laceration to the left hand. Under the law, that decision was final. In March 1995, the veteran sought to reopen his claims. The present appeal, with respect to a low back disorder, arises from a June 1995 rating decision, in which the RO determined that new and material evidence had not been submitted to warrant reopening the veteran's claim. An NOD was filed in July 1995, and the RO issued an SOC in August 1995. The veteran filed a substantive appeal, also in August 1995. The veteran's appeal subsequently came before the Board, which, in a May 1997 decision, reopened the claim and remanded the matter for additional development and adjudication. A supplemental statement of the case was issued in January 2000. The present appeal with respect to residuals of a laceration of the left hand arises from a July 1995 rating decision, in which the RO determined that new and material evidence had not been submitted to warrant reopening the veteran's claim. The veteran filed an NOD in August 1995, and the RO issued an SOC in May 1997. The veteran filed a substantive appeal in June 1997. An SSOC was issued in January 2000. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A statement from F. James Whalen, M.D., dated in March 1995, noted that the veteran's current back condition was as least as likely as not the result of his reported fall in service, given that he had reported no other traumatic injury to his back that would give rise to his back problems. 3. On VA examination in November 1999, an examiner commented that no connection could be established between the veteran's injuries to his back and service, given that the changes to the lumbar spine were diffuse and not caused by a single incident of trauma. 4. The preponderance of the evidence is against the veteran's claim that his current low back disorder was incurred during service. 5. Service connection for residuals of a laceration of the left hand was denied in a March 1959 Board decision. Under the law, that decision was final. 6. The evidence introduced into the record, since service connection for a laceration of the left hand was denied in a March 1959 Board decision, does not bear directly and substantially upon the specific matter under consideration, and is not, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The veteran's low back disorder was not incurred as a result of active service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). 2. Evidence submitted since the previous final decision denying entitlement to service connection for residuals of a laceration of the left hand is not new and material, and the veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the veteran's service medical records reflects that, on an entrance medical examination in January 1943, no pertinent defects were noted or found. During his active service period, clinical records did not show treatment for, or complaints referable to, any back or hand injury during service. On examination at discharge in February 1946, no complaints or findings were reported of any service-incurred injury, and no back or left hand defect was found on clinical evaluation. In June 1955, the veteran filed claims for service connection, inter alia, for a low back disorder and residuals of a laceration to his left hand. With his application he submitted a photograph of himself with his left hand bandaged, standing next to another soldier. He reported that he had injured both his back and left hand while on the island of Saipan during World War II. He asserted that he was placed on a work detail unloading equipment, and that, on the way back to his company area, the truck hauling the equipment slid into a ditch, throwing him off onto his back and left hand. He said that this occurred at 3 a.m., and that he went to the dispensary and had his hand bandaged, but never followed up with treatment for his injuries. The Board, at the time of its March 1959 decision, in denying the veteran service connection for a low back disorder and residuals of a laceration of the left hand, considered evidence which included the veteran's service medical records and medical statements from a number of health care providers, as well as statements from the veteran's family and friends. In particular, the RO received a statement from A.J. Manson, D.C., dated in May 1955. Dr. Manson reported that he had treated the veteran for recurrent attacks of lumbago and sciatica. In June 1955, the RO received a Certificate of Attending Physician (CAP) from John Metcalf, M.D. who stated that he saw the veteran in April 1955 with a complaint of back pain since service. The veteran reported having fallen out of a loaded truck. Dr. Metcalf's diagnosis was low back pain with no limitation on range of motion. That same month, the RO also received a CAP from Dr. Manson, who noted that the veteran suffered from attacks of lumbago and sciatica with heavy lifting, and there was an X-ray finding of intervertebral protrusion. Dr. Manson also indicated that he had first rendered the veteran treatment in May 1947. A subsequent statement from Dr. Manson, also dated in June 1955, noted that he had begun treating the veteran in May 1949. In July 1955, the RO received a VA hospital summary, dated in June 1955. It was reported that the veteran had been admitted complaining of intermittent back pain for the past 6 to 7 years. He indicated that he had been knocked off a truck while in service, landing on his low back and left hand, and suffered from a minor disability for a few days. The veteran further stated that, after separating from service and beginning hard farm work, he began to have difficulty with his back, with symptoms of back pain and numbness. Following VA hospital treatment, the discharge diagnosis was chronic compression of the right L-5 nerve root, by extrusion of a herniated nucleus pulposus. No complaints or findings were noted with respect to any residuals of a left hand laceration. Also received in July 1955 was an Army information extract showing that the veteran had landed on Saipan with his unit in February 1945; it also showed that he received medical treatment of an unidentified nature in March 1945. Lay statements were also received in July 1955, which included a statement from the veteran's spouse, mother, and brother. The veteran's spouse reported that she first met the veteran in June 1949, and he had told her that he was having trouble with his back and was seeing Dr. Manson. The veteran's mother reported that the veteran had never gone to a doctor until he came home from the service. She noted that the veteran had written her a letter in 1945 in which he said that he had been thrown off a truck while on Saipan, and that he had hurt his back and cut his hand. She additionally noted that his back had started to bother him when he began working on the family farm, but he did not go to a doctor until 1949. An undated statement from [redacted], the veteran's brother, reflected that Mr. [redacted] had had no knowledge of any of the veteran's physical problems until 1948. In October 1958, the RO received a statement from Hunter Thompson, D.C., dated in September 1958. Dr. Thompson reported that he had first seen the veteran in June 1956, and that the veteran had a chronic low back condition with periodic remissions on heavy lifting. An X-ray was reported as showing an L-5 disc lesion with resulting rotary lumbar scoliosis. Also received was a statement from H.C. Mitchell, M.D., dated October 1958, in which he reported that he had examined the veteran in September 1958 and found him to have a ruptured disc. Additional lay statements were received in October 1958. [redacted], the veteran's sister, reported that she recalled reading the letter the veteran had written to their mother about his accident in service. Another sister, [redacted], reported that she recalled very well the letter in question, and that, while the family was living in California, the veteran had complained of a bad back a number of times. However, since he was doing fairly light work at a grocery store, she did not believe he had gone to see a doctor. Also, [redacted], a brother of the veteran, reported that the veteran complained of his back bothering him, from the date he returned home from the service until leaving California for Maine in March 1947. Mr. [redacted] also recalled their mother mentioning to him that the veteran had sent her a letter recounting his accident on Saipan. [redacted], a friend, reported that the veteran had complained that his back was bothering him after he returned home from the Army in February 1946. She also recalled reading the letter the veteran had sent to his mother in 1945. Following the Board's denial of the claim, the veteran subsequently filed a notice of motion for reconsideration with the Board in September 1993. The motion was denied in December 1993. In March 1995, the veteran filed a request with the RO to reopen his claim for service connection for a back disorder. In support of his claim, the veteran submitted a statement from F. James Whalen, M.D. The physician reported that he had interviewed the veteran and had reviewed his medical records that were on file at the VARO in Togus, ME. Dr. Whalen noted that the veteran had given a history of falling off the top of a truck onto hard coral in a ditch, following which he sustained a laceration of the hand and trauma to his low back. He indicated that "obviously" the veteran had sustained some soft tissue injuries to his hip and lower trunk/back. Dr. Whalen reported that the veteran had not received treatment during service, nor had the injuries been acknowledged at discharge. The veteran's subsequent work history was noted, and Dr. Whalen indicated that the veteran had not reported incurring any traumatic injury to his back while farming, or at any other time, that would give rise to low back problems. He also noted that the veteran had been consistently treated for back problems during the 1950's and 1960's, and he further reported the veteran's medical history in the 1990's. Dr. Whalen opined that, in his medical opinion, as an orthopedic surgeon who often treated and operated on persons with back problems, the veteran's current back condition was the same as it was at the time of his discharge from the service. Furthermore, he stated that it was as least as likely as not the result of his reported fall in service. This, Dr. Whalen stated, was the case despite the absence of any records of X-rays or hospitalization in service, given the veteran's credibility and the fact that the veteran did not have a history of any other injury to his back. In July 1995, the veteran submitted a statement to the RO in which he reported that, when he fell off the truck while on Saipan, he fell on his back, left hand, and left hip. He also reported that he could not use his left thumb very well because of the severity of the injury to his left hand as a result of the fall. In June 1997, the RO received a statement from Dr. Whalen, dated in May 1997, in which he noted that the veteran had undergone a recent left hip procedure. Dr. Whalen also opined that the veteran's left hip disability was related to his fall from a truck in service. That same month, the RO received medical records from Brian Hallowell, O.D., dated from December 1996 to June 1997. In particular, these records noted treatment of the veteran's eyes. The RO also received medical records from Calais Regional Hospital, dated from June 1992 to April 1997. These records noted the veteran's treatment for his left hip. Thereafter, the RO received medical records from the VA Medical Center (VAMC) in Togus, dated from December 1992 to June 1997. These records noted the veteran's treatment for spinal stenosis, chronic obstructive pulmonary disease, and frequent dislocations status post left hip replacement, along with left thumb pain and bilateral iritis. In June 1997, the RO received additional VAMC Togus treatment records, some duplicate, dated in June 1955, April 1993, and October 1993. These records noted the veteran's treatment for his left hip and right shoulder. In particular, an orthopedic consultation report, dated in October 1993, noted that, on examination, the veteran was not suffering from any significant back pain but did evidence pain in his left hip. The examiner opined that the veteran's complaints of pain were the result of osteoarthritis in his left hip. That same month, June 1997, the RO received a statement from Dr. Whalen, in which he noted that he was treating the veteran for left hip pain, and that the veteran was currently suffering from mild left hip subluxation. Furthermore, the RO also received medical records from Peter Knowles, D.C., dated in June and July 1992. These records noted the veteran's treatment for back and left hip pain. Dr. Knowles noted that the veteran had suffered an accident 40 years previously, and had visited chiropractors over the years. In August 1998, the RO received a VA Form 21-4138 (Statement in Support of Claim) from the veteran, dated that same month, in which he reported that he had not been able to work for 15 years, and that his bank account had been drained as a result. In addition, the veteran indicated that his left arm and wrist bothered him most of the time, as well as his back and left hip. He noted that he had to walk with a cane or he would fall down. In May 1999, the RO received an additional statement from Dr. Whalen, dated that same month. Dr. Whalen noted that the veteran's arthritis in his hip and back was consistent with a fall from an Army truck on Saipan during World War II. He also indicated that there was no other explanation available as to why arthritis would have developed in the veteran's back and left hip. In November 1999, the veteran submitted a duplicate photograph of himself with his left hand bandaged, standing next to another soldier. The veteran reported in an accompanying letter that, in the photograph, all his weight was on his right leg, and only his left heel was touching the ground. He noted that he, at that time, could not put any weight on his left foot because of the pain in his left hip. In November 1999, the veteran was medically examined for VA purposes. He reported his medical history, included his fall from an Army truck while on Saipan, and subsequent treatment for his back, left hand, and left hip over the ensuing years. The examiner noted the reports of treatment from various medical records in the veteran's claims file. The veteran's current complaints consisted of pain and stiffness in his low back most of the time, and a temporary loss of strength in his legs when walking or bending down. He denied any numbness in his legs. With respect to the left hand, the veteran complained of a weak grip due to tendons being cut at the time of the original injury in 1945. On clinical evaluation, there was some discomfort in the veteran's back when he lifted his left leg, and there was motor deficit in the lower extremities. As for the left hand, there was "normal strength impinging", as well as digital abduction and adduction with no motor deficit demonstrated. The examiner noted that a CT (computer tomography) scan of the veteran's back in August 1993 had revealed advanced multifactorial spinal stenosis at L2-L3, L3-L4, and L4-L5 with encroachment of the neuroforamina. The spinal canal was noted as being better preserved at L5-S1, although there was also some narrowing of the neural foramen. It was also noted that there was marked hypertrophic osteophyte formation at multiple levels involving all of the lumbar spine. The neuroforamina were narrowed bilaterally at L2, L3, and L4, greater on the right than on the left. Radiographic studies of the veteran's hands in November 1999 revealed hypertrophic degenerative changes with a uniform distribution. The examiner's diagnostic impression included spinal stenosis secondary to multilevel hypertrophic spondylosis, with foraminal encroachment; and status post laceration of the left hand with no residuals. In commenting on the etiology of the claimed disabilities, the examiner noted that no connection could be established between either the veteran's back disorder, or his claimed left hand disorder, and his military service. The physician stated the opinion that the changes to the lumbar spine were diffuse, and not caused by a single accident. Furthermore, the left hand was reported as having not been affected by the laceration, and to have healed while the veteran was in service. II. Analysis a. Service Connection-low back The threshold question to be answered in this aspect of the appeal is whether a well-grounded claim has been presented. 38 U.S.C.A. § 5107 (West 1991); see Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If not, the claim must fail, and there is no further duty to assist in its development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (previously known as the Court of Veterans Appeals), which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). See also Morton v. West, 12 Vet.App. 477, 480-1 (1999). The Court of Appeals for Veterans Claims has also held that, in order to establish that a claim for service connection is well grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a connection or link) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. See Elkins v. West, supra, at 213, citing Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. §5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service- connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93(1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). To establish a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Under applicable criteria, service connection may be granted for a disability resulting from disease or injury which was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). A veteran shall be granted service connection for arthritis, although it is not otherwise established as incurred in service, if the disease is manifested to a 10 percent degree within one year following service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). On initial review, the Board finds that there is sufficient evidence to establish a well-grounded claim in this case. The veteran has submitted medical nexus evidence in the form of a statement from Dr. Whalen, who has opined that the veteran's low back disorder was incurred during service as a result of his fall from a truck while on the island of Saipan. However, the finding of a well-grounded claim is not dispositive of the issue. Once a claim is well grounded, the presumption that the opinion of a physician in favor of the veteran is entitled to full weight no longer applies, and the Board must determine the issue, in this instance, whether service connection is warranted for a low back disorder, by weighing and balancing all the other evidence of record. See Evans v. West, 12 Vet.App. 22, 30 (1998). Undertaking a merits analysis, we are cognizant that, in addition to Dr. Whalen's statements, a VA examination of the veteran was conducted in November 1999. The examiner discussed the veteran's medical history, and reported medical findings based on a clinical evaluation. Pursuant to the Board's remand, the examiner addressed the question of the likelihood that the veteran's current back disability is related to service. The examiner's diagnostic impression was multilevel spinal stenosis secondary to hypertrophic spondylosis, with foraminal encroachment. In his discussion of etiology, the examiner further commented that no connection could be established between the veteran's back disorder and service, given that changes to the lumbar spine were diffuse and not caused by a single accident. The Board notes that we may consider only independent medical evidence to support our findings, and must cite to competent evidence of record to support our conclusions. See Rucker v. Brown, 10 Vet.App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet.App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet.App. 213 (1992). Clearly, this matter involves a medical question, and the Board is not permitted to draw inferences as to medical causation or etiology without a solid foundation in the record. See Colvin, supra. The Court of Appeals for Veterans Claims has held that it is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state our reasons or bases for favoring one opinion over another. See Winsett v. West, 11 Vet.App. 420, 424-25 (1998). The Court has also indicated that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet.App. 185, 187 (1999). Therefore, we must discuss the medical evidence in the record which leads us to our decision in this case. The Board initially notes that we have no reason to doubt the veteran's assertion that he fell from a truck on the island of Saipan in 1945, or, indeed, that he did sustain an injury to his back as a result of that fall. The overriding question at this time, however, is whether the veteran suffered a chronic, or permanent, disability of the back as a result of that fall, and whether any claimed injury can be related to his current complaints of back pain post service. The evidence reflects that there were no documented complaints of back pain, or a report of a back injury, during the veteran's active service. Supportive statements from family and friends note that the veteran complained of back pain following service while he was living in California, but did not seek medical attention. The first documented medical treatment for back pain did not occur until after the veteran moved to Maine and began to work on a farm. He was diagnosed with a herniated disc at L5-S1 by Dr. Manson, and there is a question as to whether the veteran was treated beginning in May 1947 or May 1949. In any event, Dr. Manson did not relate the veteran's herniated disc to service, nor did subsequent doctors and chiropractors who treated the veteran during the 1950's. Following a Report of Treatment in September 1958, the medical evidence reflects that the veteran was next treated in June 1992 at Calais Regional Hospital, for sciatica of the left leg and hip. There was not a medical finding indicative of a herniated disc at that time, nor has there been since then. Furthermore, the first documented medical evidence of arthritic changes in the veteran's lumbar spine was in 1992, 46 years following the veteran's separation from active service. The Board has taken into consideration Dr. Whalen's conclusions as to the nature and etiology of the veteran's arthritic changes in his lumbar spine. We are cognizant that his medical conclusion was based on the veteran's history, and, as he reported, the lack of any other explanation available as to why arthritis would have developed in the veteran's back. As the evidence reflects, there is no other medical opinion of record supportive of Dr. Whalen's conclusion, and a VA examiner has opined that the current finding of arthritis in the veteran's spine was not the result of a single traumatic incident, given the diffuse nature of the disease. Thus, when we consider the evidence of record, including a lack of complaints or treatment for back pain during service, and the first documented medical evidence of arthritic changes in the veteran's back 46 years following his separation from service, we find the probative value of Dr. Whalen's opinion, without any other supportive evidence, is outweighed by the VA examiner's conclusion. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("[I]t is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases."). Therefore, we find that the preponderance of the evidence is against the veteran's claim that his current low back disorder was incurred during service. In reaching our decision, the Board has considered the supportive statements of the veteran's family and friends, as well as his own contentions regarding his back disorder. While a lay person is competent to describe symptoms, he or she is not competent to offer evidence which requires medical knowledge, such as a diagnosis or a determination of etiology. Voerth v. West, 13 Vet.App. 117, 120 (1999), citing Espiritu, supra. Routen v. Brown, 10 Vet.App. 183, 186 (1997)("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). As such, these opinions do not constitute competent medical evidence. The Board has taken into account the contentions of the veteran's service representative that 38 U.S.C.A. § 1154(b) should be considered in deciding the veteran's claim. See also 38 C.F.R. § 3.304(d). Section 1154(b) provides that, in the case of any veteran who engaged in combat with the enemy in active service with the military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service incurrence of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. However, we note that section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to service. See Kessel v. West, 13 Vet.App. 9, 17 (1999), holding that section 1154(b) "does not constitute a substitute for evidence of current disability, causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service [emphasis in original]." See also Beausoleil v. Brown, 8 Vet.App. 459, 464 (1996), in which the Court stated that, while section 1154(b) relaxes the evidentiary requirement as to the evidence needed to render a claim well grounded, there is essentially no relaxation as to the question of nexus to service, which requires competent medical evidence. In this instance, we note that the veteran has not reported that he was engaged in combat during the period in which he was stationed on Saipan. Also, he has not reported that he was engaged in combat when he reportedly fell from the supply truck. Furthermore, there is no evidence of record that the veteran received any combat awards or citations. Thus, the Board finds that the evidence of record does not reflect that the veteran was engaged in combat when he reportedly fell from the supply truck, and thus 38 C.F.R. § 1154(b) is not applicable. In any event, as noted above, we are willing to accept, for the purpose of deciding this case, the veteran's account of his injury in service. Moreover, we have found the claim to be well grounded, based upon Dr. Whalen's statements indicating a linkage between the current back disability and service. See McManaway v. West, 13 Vet.App. 60, 66 (1999). However, upon a weighing of the totality of the evidentiary record, we find that, even though the veteran asserts continuity of symptomatology since service, the record preponderates against a conclusion that there is an etiological link between the continuous symptomatology and his current back condition." Under the law, the veteran is free, at any time in the future, to submit new and material evidence to reopen his claim for a low back disorder, regardless of the fact that he currently is not shown to be suffering from a disability that may be service-connected. Such evidence would need to show, through competent medical evidence, a current disability, and that such disability "resulted from a disease or injury which was incurred in or aggravated by service." 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau, Montgomery, supra. b. New and Material Evidence-left hand The veteran was previously denied service connection for residuals of a laceration of the left hand in a March 1959 Board decision. In order to reopen his claim, he must present new and material evidence with respect thereto. 38 U.S.C.A. § 5108. Because the present appeal does not arise from an original claim, but rather comes from an attempt to reopen a claim which was previously denied, the Board must bear in mind the important distinctions between those two types of claims. Prior to our discussion of the evidence which has been submitted since the March 1959 Board decision, we must first note that the United States Court of Appeals for Veterans Claims had previously held that the Secretary of Veterans Affairs, and, on appeal, the Board, were required to perform a two-step analysis when a claimant sought to reopen a claim based upon new evidence. First, it was to be determined whether the evidence was "new and material." Second, if the Board determined that the claimant had produced new and material evidence, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 144 (1991). Whether the new evidence was "material" turned essentially upon the reasonable possibility that, when viewed in the context of all the evidence, it would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court more recently held that the two-step Manio process has been replaced with a three-step process. See Elkins v. West, 12 Vet.App. 209 (1999) (en banc), interpreting and applying a decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The procedure which we must now follow is - first, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a); second, after the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim, as reopened, is well grounded; third, if the claim is well grounded, the merits of the claim must be addressed and, if ripe for decision, adjudicated. Winters v. West, 12 Vet.App. 203, 206 (1999) (en banc). In addition, Hodge overruled Colvin and its progeny as to the materiality element of the new-and-material-evidence test. See Elkins, supra, at 214. As defined by regulation, new and material evidence means evidence not previously submitted 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 the 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). The Federal Circuit Court has held that the regulatory standard alone must be the test of materiality. Hodge, supra. In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance ("on any basis" - merits or otherwise) of the claim, and is not "merely cumulative" of other evidence that was then of record. See Evans v. Brown, 9 Vet.App. 273, 283-285 (1996). This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Although, as noted above, Hodge overruled Colvin and its progeny as to the materiality test, it does not appear that the analysis as to what is new evidence has been overruled. See Vargas-Gonzalez v. West, 12 Vet.App. 321, 326 (1999), noting that Hodge did not deal with the test for determining whether evidence is new, which is a separate decision from whether it is material. As to the materiality standard, the Federal Circuit's holding in Hodge has been interpreted by a panel of the Court of Appeals for Veterans Claims: "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim." Fossie v. West, 12 Vet.App. 1, 4 (1998), motion for recon/review denied, 12 Vet. App. 234 (1999). In determining whether newly submitted evidence is material under the caselaw discussed above, we are further guided by the Federal Circuit Court's discussion of the "uniquely pro-claimant" quality of the veterans' benefits system such that, although "not every piece of new evidence is 'material' . . . we are concerned . . . that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, supra, at 1363. The credibility of new evidence is assumed for the limited purpose of determining whether it is material. Justus v. Principi, 3 Vet.App. 510 (1992). As noted above, under the precedent decision of the Court in the Evans case, supra, in order to reopen a previously and finally denied claim there must be new and material evidence entered into the record since the most recent denial on any basis, either on the merits or on an attempted reopening. Id. at 285. Therefore, the evidence which must be considered at this time, in connection with the veteran's claim for service connection for residuals of a laceration of the left hand, is that which has been submitted since the Board entered its decision on this matter in March 1959. Evidence submitted since the final Board decision entered in 1959 includes: 1. Medical opinions and statements from Dr. F. James Whalen, dated in March 1995, May 1997, June 1997, and May 1999. 2. Treatment records from Brian Halowell, O.D., dated from December 1996 to June 1997. 3. Treatment records from Calais Regional Hospital, dated from June 1992 to April 1997. 4. Treatment records from VAMC Togus, dated from December 1992 to June 1997. 5. Treatment records from Peter Knowles, D.C., dated in June and July 1992. 6. Statement from the veteran, in addition to a photograph of him and another soldier, submitted in November 1999. 7. Report of VA examination, dated in November 1999. After a review of the record, the Board finds that none of the evidence added to the file since March 1959 is new and material evidence sufficient to warrant reopening the veteran's claim for residuals of a laceration to the left hand. In this regard, we note that none of the evidentiary items considered reflect any nexus evidence linking any present left hand disability to the veteran's reported fall during service. Furthermore, with respect to evidentiary item (7), the VA examiner reported that, while the veteran suffered from arthritis in his left hand, there were no residuals of his reported laceration during service, and it was noted that the wound had healed while the veteran was still a service member. The Board notes, in addition, that the veteran's lay assertions, documented in written statements, although they may be sincerely felt, do not constitute competent medical evidence sufficient to reopen a claim. See Voerth, Routen, above. In summary, given the record before us, the Board finds that the evidentiary items are not new and material, based upon the fact that they do not bear directly and substantially upon the specific matter under consideration, as required by 38 C.F.R. § 3.156(a). That is, they do not provide competent medical evidence that the veteran currently suffers from residuals of a left hand laceration directly attributable to service. Thus, none of the medical evidence received since the previous final rating decision in 1959 changes the previous analysis in any way. Therefore, under the facts of this case, it does not appear that the Board should reach the final criterion of well-groundedness in the regulation; however, assuming it could be applied, we would be compelled to point out that, for the same reasons discussed above, the newly submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. We thus conclude that new and material evidence to reopen the veteran's claim for residuals of a laceration of the left hand has not been presented. We further observe that, in its May 1997 SOC, the RO cited to 38 C.F.R. § 3.156, the regulation discussed with approval in Hodge, and quoted the regulation's pertinent language as it relates to new and material evidence claims. However, in their analysis, under "Reasons and Bases", the RO noted in part, "To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." The RO concluded the evidence was "not considered new and material as it would not change the prior decision." We acknowledge that the RO's analysis appears to be predicated, in part, upon language found impermissible by Hodge. However, in a subsequent January 2000 SSOC, the RO did not cite to the impermissible language, and appropriately considered the veteran's claim solely under the language of section 3.156. Because the RO has applied the correct, post-Hodge standard to this aspect of the appeal, there is no reason for the Board to remand the case for a procedural reason. Such a remand would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters, supra, at 207; Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Accordingly, as the veteran has not presented new and material evidence to reopen his previously denied claim of entitlement to service connection for residuals of a laceration of the left hand, the claim may not be reopened. ORDER 1. Entitlement to service connection for a low back disorder is denied. 2. New and material evidence has not been presented to reopen the veteran's claim for service connection for residuals of a laceration of the left hand, and the claim is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals