Citation Nr: 0002491 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 96-42 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a lumbar back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active service from December 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's request to reopen his claim of entitlement to service connection for a lumbar back disability. At the outset, the Board notes that the issue at bar in this case will be addressed in the remand portion of this case. However, before the Board can deal with the details of the remand, preliminary matters relevant to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lumbar back disability, must be addressed. FINDINGS OF FACT 1. An unappealed June 1983 rating decision denied the veteran's claim of entitlement to service connection for a lumbar back disability. 2. The evidence associated with the record since the June 1983 rating decision denying service connection for a lumbar back disability bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a lumbar back disability. 3. The record includes medical evidence of a chronic lumbar back disability during service and at various times subsequent to service. CONCLUSIONS OF LAW 1. The June 1983 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.1103 (1999). 2. New and material evidence having been received, the issue of entitlement to service connection for a lumbar back disability is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for a lumbar back disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board observes that a June 1983 RO rating decision denied service connection for a lumbar back disability. The veteran did not file a substantive appeal to this rating decision. Therefore, this rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.1103. Except as provided for in 38 U.S.C.A. § 5108, when a claim is disallowed by an agency of original jurisdiction, the claim 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. § 7105. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a) since the last final disallowance. See Edenfield v. Brown, 8 Vet. App. 384, 389-90 (1995). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. 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); see also Hodge, 155 at 1363. The relevant medical evidence of record at the time of the June 1983 rating decision consists of the veteran's service personnel records, service medical records (SMRs), as well as VA and private medical records. The service personnel records show that the veteran was awarded the Vietnam Service Medal, Combat Action Ribbon, and Vietnam Cross of Gallantry with Palm. These awards demonstrate that the veteran was engaged in combat with the enemy while serving in Vietnam. The SMRs begin with a November 1967 enlistment examination report indicating the veteran had worn a backbrace in the past. A March 1969 orthopedic consultation report notes the veteran's back pain and his history of being in an auto accident. A May 1969 orthopedic consultation report states that the veteran's lumbar back was examined but that there was no injury or disease evident that would account for the symptoms described by the veteran. A December 1969 orthopedic consultation record shows that the veteran suffered from some spasm of muscle on the right, increased lordosis, and decreased range of motion; the diagnosis of back strain. A January 1970 orthopedic consultation record states that there was some limitation of motion of flexion of the lumbar spine with pronounced muscle spasm; the impression was low back syndrome. A February 1970 treatment record notes that no spondylolysis was seen. The examination upon separation from service notes no injury, disease, or defect of the lumbar back. The post-service medical records begin with a January 1983 note from a private physician, Richard Jelsma, M.D., which states that the veteran was treated for lumbosacral strain and released to work as of November 17, 1981. A January 1983 letter from a private physician, George W. McCrocklin, M.D., states that the veteran "was under my care from June 12, 1974 through August 9, 1977 for muscular ligamentous strain of the lower back." A March 1983 VA neurological examination report found there to be mild to moderate lower back strain. A March 1983 VA general medical examination report that objectively observed limitation of motion of the lumbar spine and diagnosed the veteran with chronic lumbosacral strain and mild degenerative arthritis at L5. A March 1983 VA radiology report of the lumbar spine found mild degenerative changes of the lumbar spine. The relevant medical evidence associated with the claims file subsequent to the June 1983 rating decision consists of various VA and private medical records. This evidence includes additional records documenting lumbar back pain, lumbosacral strain, low back syndrome, and radiation of pain down his right leg, between June 1972 and April 1974. A VA radiology report dated in November 1982 revealed an impression of mild degenerative changes of the lumbar spine. A June 1995 letter from the veteran's employer, the City of Louisville, provided the veteran notice that he was being terminated from employment for health reasons. VA treatment records show the veteran complained of back pain in May 1995, and a May 1995 VA radiology report found a narrowing of the interspaces at L4-L5 and L3-L4, as well as osteoarthritic osteophytes in the lumbar vertebral bodies. A July 1995 private radiology report revealed degenerative disc disease at the lower three interspace levels resulting in moderate canal stenosis at L3-L4 and L4-L5 interspaces, and a July 1995 VA radiology report noted a broad based disc bulge at L4-5 with minimal effacement and ligamentous hypertrophy also. VA treatment records for the period June 1996 to January 1997 show the veteran was seen for complaints of low back pain and observed muscle spasm, and was treated with trigger blocks. VA treatment records show that the veteran continued to be seen for low back pain through 1997 and into 1998. The Board finds that the evidence submitted subsequent to the June 1983 rating decision, as summarized above, is new and material, because it bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and which, 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). Moreover, the Board finds that this evidence, which includes medical evidence showing that the veteran may be suffering from a chronic lumbar back disability since service, makes the veteran's claim for service connection for a lumbar back disability well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented a claim that is plausible; capable of substantiation or meritorious on its own. Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). ORDER The claim of entitlement to service connection for a lumbar back disability, is well grounded; the appeal is granted to the extent of this finding of well groundedness only. REMAND As previously noted herein, the veteran's claim of entitlement to service connection for a low back disability is well grounded under 38 U.S.C.A. § 5107(a). As such, VA has a duty to assist the veteran in the development of his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, as additional development is necessary prior to final adjudication of this matter on the merits, the veteran's claim is remanded to the RO for such development. Accordingly, this case is REMANDED for the following actions: 1. The veteran should be scheduled for a VA orthopedic examination for the specific purpose of determining whether it is at least as likely as not that the veteran's currently diagnosed lumbar back disability is the result of an injury, disease, or defect of the lumbar back that was incurred in, or aggravated by, active service. In making this determination, the examiner should state to what extent any of the veteran's current lumbar back symptomatology should be disassociated from the symptomatology recorded in service. It is imperative that the claims file be made available to, and be reviewed by, the examiner in connection with the examination, and that all tests and studies deemed necessary should be accomplished. 2. After completion of the above, the RO should review the expanded record and determine whether service connection for a lumbar back disability is warranted. The veteran and his representative should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this remand is to assist the veteran and to ensure an adequate medical record for appellate review. The Board intimates no opinions as to the eventual determinations to be made in this case. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals