BVA9500579 DOCKET NO. 91-50 877 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a cervical spine disorder. 2. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a mid/upper back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active military service from March 1976 to May 1979. By a rating decision in June 1984, the San Diego, California Regional Office (hereinafter San Diego RO) of the Department of Veterans Affairs (hereinafter VA) denied the veteran's claims for service connection for disorders of the cervical spine and mid/upper back. There was no appeal of that rating decision. On subsequent occasions, the veteran attempted to reopen his claims for service connection for cervical spine and a mid/upper back disorders. He appealed an October 1989 rating decision which denied service connection for his claimed disorders on the ground that new and material evidence had not been submitted. Thereafter, the case was received at the Board of Veterans' Appeals (hereinafter the Board). In a January 1993 decision, the Board remanded the case to the San Francisco, California Regional Office (hereinafter San Francisco RO) for additional evidentiary development. Following partial compliance with the Board's directives on remand, the San Francisco RO again reviewed the veteran's claims and held that new and material evidence had not been submitted to reopen either of the claims on appeal. The case was subsequently returned to the Board. The Board notes that in its January 1993 remand decision, the San Francisco RO was directed to, among other things, schedule the veteran for an orthopedic examination. The purpose of this special examination was to determine if a thoracic or mid/upper back disorder was indeed present, and if so, to what extent. Our review of the record fails to demonstrate any attempt by the San Francisco RO to comply with this directive. Ordinarily, such inaction by the RO would warrant another remand in order to affect full compliance; however in light of the sufficient evidence currently of record, as well as our goal of providing the veteran a timely decision of his claims currently on appeal, the Board will proceed with the adjudication of the issue relating to the thoracic spine disorder, currently certified for appellate review. However, consideration of the issue of whether new and material evidence has been presented to reopen the claim of service connection for a cervical spine disorder is deferred, pending completion of the action taken below. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts, essentially, that new and material evidence sufficient to reopen his claim for service connection for a thoracic spine disorder has been submitted. He maintains that he fell during his active service, causing him to develop pain and a burning sensation in his upper back. He further contends that this symptomatology continued after service, and has affected his ability to perform his normal occupational duties. 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 sufficient evidence has been submitted to reopen the veteran's claim for service connection for a disorder of the thoracic spine. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the San Francisco RO. 2. Service connection for a disorder of the thoracic spine was denied by a rating decision in June 1984; no timely appeal was filed. 3. The evidence added to the record subsequent to the June 1984 rating decision includes the following: VA outpatient treatment records; a sworn statement from the veteran's mother as well as a school health record; testimony presented by the veteran at a December 1990 hearing before a hearing officer; and private treatment records. 4. Evidence received since the June 1984 rating decision, particularly the notarized statement submitted by the veteran's mother and his testimony at the hearing on appeal in December 1990, is relevant and probative and must be considered in order to decide the claim on the merits. CONCLUSION OF LAW The June 1984 rating decision denying service connection for a thoracic spine disorder is final; however new and material evidence has been presented to reopen that claim. 38 U.S.C.A. §§ 1131, 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156, 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the veteran's claims for service connection for a thoracic spine disorder was denied by a rating decision in June 1984. Under applicable law and VA regulations, that decision is final, and the veteran's claim may not be reopened and reviewed unless new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156. New and material evidence is evidence which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself, or in combination 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). Further, "material evidence is relevant and probative of the issue at hand," and, in addition, "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." Colvin v. Derwinski, 1 Vet.App. 171 (1991). As a threshold matter, in connection with the veteran's claims to reopen, we note that we have found that the claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that the veteran has presented a claim which is plausible or capable of substantiation. The Board observes that the evidence available at the time of the June 1984 rating decision consisted of the veteran's service medical records, the report of a VA examination conducted in June 1979, and VA outpatient treatment records. The report of the veteran's service entrance examination does not include any references to any defects, developmental or otherwise, of the cervical or thoracic spine In February 1977, as noted in the records, the veteran appeared for treatment with complaints of pain in his neck region, resulting from his involvement in a fight. Thereafter, in October 1977, he again sought treatment for a back condition. On that occasion, the veteran indicated that he experienced a sharp, grabbing pain at the T4 level. The examiner noted the presence of scoliosis at the thoracic level of the veteran's spine. It was further noted that there was no evidence of muscle spasm, the veteran had full range of motion of the back, and X-ray pictures of the thoracic spine were normal. The diagnostic assessment was chronic back strain. The separation examination in May 1979 evaluated the veteran as normal for any musculoskeletal defects. The veteran was examined by the VA in June 1979. At that time, he complained of upper thoracic pain. On special orthopedic examination, it was noted that the veteran stood with a slight rounding of the upper dorsal spine. It was further noted that his gait was normal, he could successfully walk on his heels and tiptoes, and he had normal range of motion of the cervical spine. X-ray study showed minimal scoliosis of the dorsal spine with no other abnormality. The examining orthopedist's diagnosis was of "minimal" sclerosis of the dorsal spine. Progress notes reflecting VA outpatient treatment received by the veteran in September 1980, reveal his complaints at that time of a gnawing pain in his thoracic spine. Reportedly he had had back pain since "1972" after a fall, following which he had received no treatment. Physical examination failed to reveal any abnormalities. VA hospital records compiled in 1982 contain no reference to cervical or thoracic spine complaints. Based on the evidence summarized above, the San Diego RO determined that the injuries sustained by the veteran to his back and neck during service were acute and transitory and unrelated to any then present disability. An additional reason cited in the June 1984 rating decision for denying the veteran's claim for service connection was that scoliosis is a constitutional or developmental abnormality, which is not considered a disability under applicable law. The records reflect that the veteran filed to reopen a claim for service connection for neck disorder in April 1989, after sustaining a head and neck injury while on the job in December 1988. The evidence received after the June 1984 rating action includes VA outpatient treatment records dated 1980 through 1989. X-ray study of the thoracic spine in September 1980 was negative. These records reflect various complaints and findings relative to the veteran's back disorders. In October 1980, the veteran complained of chronic pain along the thoracic spine, since a fall in 1978. Physical examination at that time was essentially normal, but the diagnostic impression was chronic back strain which worsened with exercise and lifting. Further consultations in January and April 1982 resulted in findings of muscle strain and spasm. During consultation in June 1984, it was noted that the veteran was forced to leave his job, because of the standing and lifting requirements of his former position. The assessment was chronic back pain. Consultation in July 1989 resulted in another finding of chronic back sprain. In October 1989, the San Francisco RO received a notarized statement prepared by the veteran's mother, Ms. [Redacted]. In the letter, Ms. [redacted] stated that she was not aware of any back disorder which preexisted the veteran's military service. She supported this contention by describing the veteran's past medical history, from birth to young adulthood, during which various examinations by family physicians and other medical professionals were performed, with no findings referable to a developmental back defect. According to the veteran's mother, she was first made aware of his back troubles in October 1977, when he was stationed in San Diego, California. It was her recollection that the veteran injured his back when he fell down a flight of stairs. She further noted that his back condition was further aggravated by an incident onboard a submarine. On the occasion of his December 1990 hearing before a hearing officer, the veteran reiterated statements made by his mother regarding the falling injury he sustained while stationed in San Diego. He also added that he did not begin to experience symptoms related to that injury--burning, numbing, and tingling-- until the following day. In response to direct questioning regarding the lengthy delay in filing for VA compensation benefits for his back disorders, the veteran essentially stated that he withstood the pain for as long as he could until it became unbearable and began to interfere with his ability to perform his occupational duties. He testified that the symptoms complained of in service continued to exist. He also stated that he sustained an work-related injury to his cervical spine. A complete transcript of the veteran's testimony is of record. Additional medical records were received in January 1991. These records, which include X-ray and magnetic resonance imaging (MRI) reports, reflect private treatment and therapy the veteran received for cervical and mid back pain following his accident at work. X-rays taken in January 1989 were essentially normal, with no bony abnormalities noted. Similarly, a report of MRI evaluation in February 1989 revealed that the discs of the cervical spine were within normal limits, with no evidence of herniation or significant bulging. However, a report of an electrodiagnostic study performed in June 1989 revealed an electrical abnormality in the cervical paraspinal muscles. It was further determined that these findings were compatible with mild right lower cervical radiculopathy, probably at the C7-8 level. Following the Board's remand, private and VA treatment records were submitted. Included among the mostly duplicate copies of clinical data already on file was a letter prepared by one of the veteran's former treating physicians. In an April 1993 letter addressed to a VA adjudication officer, Teri Reilly, D.C., recalled that the veteran presented twice in November 1992 with complaints of neck and upper back pain, marked by a constant burning sensation along the mid back, which radiated to the right elbow and arm. Dr. Reilly explained that the treatment program was comprised of examination of the back, physical therapy modalities, and chiropractic manipulation. Dr. Reilly concluded his statement by indicating that the diagnosis following the November 1992 treatment sessions was thoracic neuritis with attendant radiculitis. Although the veteran was specifically requested to provide information relating to treatment of back and neck disorders during the period from 1982 to 1988, in accord with the Board's remand request, he failed to provide any information. The United States Court of Veterans Appeals has held that in determining whether new and material evidence justifies reopening of a claim, the evidence should be presumed to be credible. Once the claim is reopened, the presumption as to the credibility of the evidence no longer applies. Justus v. Principi, 3 Vet.App. 510 (1992). With respect to the veteran's claim for service connection for a thoracic spine disorder, we do find that new and material evidence has been submitted for the purpose of reopening his claim. Specifically, the notarized statement submitted by the veteran's mother, is relevant and probative of the issue on appeal. Furthermore, this evidence is not merely cumulative of other evidence of record. This evidence reflecting the absence of any defect of the thoracic spine prior to service is augmented by the veteran's sworn testimony from the December 1990 hearing, which suggests that his thoracic spine disorder is chronic. In this regard, we point out that the veteran gave a detailed explanation of the inservice injury and ongoing symptomatology. Thus, we find that this evidence satisfies the regulatory definition of "new and material," and, meets the criteria set forth by the Court in Colvin, Id. Accordingly, as new and material evidence has been presented, the veteran's claim for service connection for a thoracic spine disorder is reopened and de novo consideration of the claim must be accorded by the RO. ORDER The appeal is granted to the extent that the claim of entitlement to service connection for a thoracic spine disorder is reopened, new and material evidence having been submitted, but is subject to the additional action indicated below. REMAND The veteran essentially contends that he is entitled to service connection for a thoracic spine disorder. He asserts that this disability was incurred during service as the result of a fall, and is not attributable to constitutional or developmental causes as previously determined by the RO. In support of the veteran's contention, a notarized statement was submitted by his mother, indicating no diagnoses of scoliosis or other back pathology, despite frequent physical examinations from his birth to young adulthood. In order to accord due process of law and to afford the veteran every administrative consideration, the Board is of the opinion that additional evidentiary development is required prior to final appellate disposition of the veteran's claim. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. In the event the veteran has received any private or VA treatment since 1982 for neck or thoracic spine disorders, those records should be obtained and made a part of the record. 2. The RO should schedule the veteran for a VA orthopedic examination to determine the nature of his thoracic spine disorder. The veteran's VA claims folder should be made available to the examiner prior to the examination, so that the examiner may review the pertinent medical and treatment history of the veteran's claimed disability. A comprehensive examination should be performed and all clinical findings should be reported in detail. 3. Upon completion of the above action, the RO should review the evidence relating to a thoracic spine disorder, on a de novo basis. As well, the RO should again consider the issue of new and material evidence to reopen the claim for service connection for the neck disorder. If either of the veteran's claims remains denied, both he and his representative should be provided a supplemental statement of the case and afforded the requisite 60 days within which to respond. 38 C.F.R. § 20.302(c) (1993). Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the veteran until he is notified. By this REMAND, the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of the REMAND is to further develop the record and to afford the veteran due process of law. N. R. ROBIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. 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) (1993).