Citation Nr: 0004146	
Decision Date: 02/16/00    Archive Date: 02/23/00

DOCKET NO.  98-03 664A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Whether new and material evidence has been presented to 
reopen a claim of entitlement to service connection for a low 
back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. M. Fogarty, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1971 to July 
1975.  The veteran's service personnel records also reflect 
verified active duty for training from July 19, 1986 to 
August 2, 1986.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a November 1996 rating decision from the 
Department of Veterans Affairs (VA) Los Angeles, California 
Regional Office (RO), which determined that new and material 
evidence had not been presented to reopen a claim of 
entitlement to service connection for a low back disorder.

Following a hearing before a member of the Board in November 
1999, the veteran submitted additional evidence consisting of 
treatise evidence regarding congenital anomalies of the 
craniovertebral junction, spine, and spinal cord.  The 
veteran also submitted a statement waiving RO consideration 
of this additional evidence.  Accordingly, the evidence has 
been considered by the Board in this decision.  At that same 
hearing, the veteran withdrew the issue of entitlement to 
service connection for a right elbow disability from 
appellate consideration.  Therefore, that issue has not been 
addressed by the Board in this decision.

Finally, the Board notes that in a February 1999 VA Form 21-
4138, the veteran stated that he would like to reopen his 
claim of entitlement to non-service connected pension 
benefits.  This matter is referred to the RO for any 
appropriate action. 



FINDINGS OF FACT

1.  The veteran suffered a back injury in October 1981, which 
aggravated a pre-existing spondylolysis and spondylolisthesis 
condition 

2.  During active duty for training in July 1986, the veteran 
was hospitalized and treated for low back pain secondary to 
facet joint syndrome.

3.  A November 1996 private medical report reflects a 
diagnosis of a sprain superimposed on spondylolisthesis.

4.  Upon VA examination dated in July 1988, the examiner 
noted pain and limitation of motion in the lumbosacral spine.



CONCLUSION OF LAW

The claim of entitlement to service connection for a low back 
disorder is well grounded.  38 U.S.C.A. § 5107(a) (West 
1991).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim of entitlement to service connection for 
a low back disorder was denied in a September 1988 rating 
decision on the basis that a low back condition was not 
caused or aggravated by active service.  The veteran was 
informed of this determination in a letter dated in October 
1988.  The veteran did not file a notice of disagreement as 
to that determination. 

Following notification of an initial review and determination 
by the RO, a notice of disagreement must be filed within one 
year from the date of mailing of notification, followed by a 
timely substantive appeal submitted either within 60 days of 
the issuance of a statement of the case or within the 
remainder of the one-year period of mailing of the notice of 
the adverse determination; otherwise, the determination 
becomes final and is not subject to revision absent new and 
material evidence.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a) 
(1999).

If new and material evidence is presented or secured with 
respect to a claim that has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of 
the claim.  38 U.S.C.A. § 5108.

In determining whether to reopen previously and finally 
denied claims, a three-step analysis was set forth by the 
United States Court of Appeals for Veterans Claims (known as 
the United States Court of Veterans Appeals prior to March 1, 
1999) (hereinafter, "the Court").  Elkins v. West, 12 Vet. 
App. 209 (1999).  Under the Elkins test, the Board must first 
determine whether the veteran has presented new and material 
evidence under 38 C.F.R. § 3.156(a) in order to have a 
finally decided claim reopened under 38 U.S.C.A. § 5108.  
Second, if new and material evidence has been presented, 
immediately upon reopening the claim, the Board must 
determine whether, based upon all the evidence of record in 
support of the claim, the claim as reopened is well grounded 
pursuant to 38 U.S.C.A. § 5107(a).  Third, if the claim is 
well grounded, the Board may then proceed to evaluate the 
merits of the claim but only after ensuring that VA's duty to 
assist under 38 U.S.C.A. § 5107(b) has been fulfilled.  
Winters v. West, 12 Vet. App. 203 (1999).

As previously noted, once a denial of a claim of service 
connection has become final, it cannot subsequently be 
reopened unless new and material evidence has been presented.  
38 U.S.C.A. § 5108.  New and material evidence means 1) 
evidence not previously submitted; 2) which bears directly 
and substantially upon the specific matter under 
consideration; 3) which is neither cumulative nor redundant; 
and 4) which by itself or in connection 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).  For the limited purpose of determining 
whether to reopen a claim, the credibility of the evidence is 
to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The Court has clarified that, with respect to the issue of 
materiality, the newly presented evidence need not be 
probative of all the elements required to award the claim.  
Evans v. Brown, 9 Vet. App. 273, 284 (1996) (citing Caluza v. 
Brown, 
7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 
1996)(table)).  Rather, it is the specified bases for the 
final disallowance that must be considered in determining 
whether the newly submitted evidence is probative.  Evans, at 
284.  The Court also held that in order to reopen a 
previously and finally disallowed claim there must be new and 
material evidence submitted "since the time that the claim 
was finally disallowed on any basis, not only since the time 
that the claim was last disallowed on the merits."  Evans v. 
Brown at 284.

The Board recognizes that the Court, in Graves v. Brown, 9 
Vet. App. 172 (1996), extended the 38 U.S.C.A. § 5103(a) 
(West 1991) duty to advise the claimant of evidence needed to 
complete his application, as discussed in Robinette v. Brown, 
8 Vet. App. 69 (1995), to applications to reopen a claim 
through the presentation of new and material evidence.  In 
this instance, VA has fulfilled such duty in the course of 
requests for information from the veteran and other sources, 
and has advised the veteran of the status of his claim in the 
statement of the case and supplemental statement of the case.  
As modified by Epps v. Brown, 9 Vet. App. 341, 344 (1996), 
that duty arises where the veteran has reported the existence 
of evidence which could serve to re-open a claim.  As no such 
evidence has been identified in the instant case, VA has 
satisfied its duty to inform the veteran under 38 U.S.C.A. 
§ 5103(a).  See Slater v. Brown, 9 Vet. App. 240, 244 (1996).  

A great deal of medical evidence has been received since the 
RO's September 1988 decision revealing treatment and medical 
opinions regarding the veteran's low back disorder.  The 
Board is of the opinion that this evidence is not wholly 
cumulative or redundant of evidence previously on file and is 
sufficiently significant to the issue in this case that it 
must be considered in order to fairly decide the merits of 
this claim.  The additional evidence is therefore new and 
material, and the claim must be reopened.  See Hodge v. West, 
155 F.3d 1356 (Fed. Cir. 1998).  A claim reopened after new 
and material evidence has been received must be considered de 
novo.  See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

Basic entitlement to disability compensation may be 
established for a disability resulting from personal injury 
suffered or disease contracted in the line of duty or for 
aggravation of a preexisting injury suffered or disease 
contracted in the line of duty, in the active military, 
naval, or air service.  38 U.S.C.A. §§  1110, 1131 (West 
1991).  The term "active military, naval, or air service" 
includes active duty and any period of active duty for 
training during which the individual concerned was disabled 
or died from a disease or injury incurred or aggravated in 
the line of duty.  38 U.S.C.A. § 101(24) (West 1991); 
38 C.F.R. § 3.6(a) (1999).  It follows from this that service 
connection may be granted for disability resulting from 
disease or injury incurred or aggravated while performing 
active duty for training.  38 U.S.C.A. §§ 101(24), 106, 1131.

A preexisting injury or disease will be considered to have 
been aggravated by service where there is an increase in 
disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease.  38 U.S.C.A. §§ 1110, 1153 (West 
1991); 38 C.F.R. §§  3.303, 3.306 (1999).  Clear and 
unmistakable evidence (obvious or manifest) is required to 
rebut the presumption of aggravation where the preservice 
disability underwent an increase in severity during service.  
This includes medical facts and principles which may be 
considered to determine whether the increase is due to the 
natural progress of the condition.  Aggravation may not be 
conceded where the disability underwent no increase in 
severity during service on the basis of all the evidence of 
record pertaining to the manifestations of the disability 
prior to, during, and subsequent to service.  38 C.F.R. §  
3.306(b).

The threshold question that must be resolved with regard to 
each claim is whether the veteran has presented evidence of a 
well-grounded claim.  
38 U.S.C.A. §  5107(a); Murphy v. Derwinski, 1 Vet. App. 78 
(1990).  A well-grounded claim is a plausible claim that is 
meritorious on its own or capable of substantiation.  See 
Murphy, 1 Vet. App. at 81.  An allegation of a disorder that 
is service-connected is not sufficient; the veteran must 
submit evidence in support of a claim that would "justify a 
belief by a fair and impartial individual that the claim is 
plausible."  38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 
Vet. App. 609, 611 (1992).  

In order for a claim to be well grounded, there must be 
competent evidence of current disability; lay or medical 
evidence of incurrence or aggravation of a disease or injury 
in service; and competent medical evidence of a nexus between 
the in-service injury or disease and the current disability.  
Caluza v.  Brown, 7 Vet. App. 498 (1995).  Where the 
determinant issue involves a question of medical diagnosis or 
medical causation, competent medical evidence to the effect 
that the claim is plausible or possible is required to 
establish a well-grounded claim.  Lay assertions of medical 
causation cannot constitute evidence sufficient to render a 
claim well grounded under 38 U.S.C.A. §  5107(a); if no 
cognizable evidence is submitted to support a claim, the 
claim cannot be well grounded.  Grottveit v. Brown, 5 Vet. 
App. 91, 93 (1993).  Further, in determining whether a claim 
is well grounded, the supporting evidence is presumed to be 
true and is not subject to weighing.  King v. Brown, 5 Vet. 
App. 19, 21 (1993).  

Private treatment records dated in 1981 reflect that the 
veteran was treated for a sprain of his lower back which 
aggravated a pre-existing spondylolysis and 
spondylolisthesis.  The records reflect the veteran injured 
his lower back in October 1981 while performing civilian 
employment.  A November 1981 medical report notes that x-rays 
showed spina bifida of L5 and a spondylolysis of L5 with a 
minimal spondylolisthesis of L5 over S1.  

The record also contains numerous private medical reports 
regarding the veteran's low back condition subsequent to his 
October 1981 work-related injury.  A January 1984 report 
notes that the veteran returned to work in March 1982 and 
continued to have intermittent pain in the lower back along 
with occasional numbness and tingling.  It was also noted 
that the veteran denied any prior back injuries other than 
the October 1981 industrial incident.  The physician opined 
that the veteran should be precluded from heavy lifting and 
repetitive bending and stooping.  December 1981 reports 
reflect the veteran continued to experience intermittent pain 
in his back.  

January 1982 private medical reports note the veteran was 
greatly improved.  The veteran is quoted as saying he was 
"90% well."  March 1982 records reflect a recurrence of 
moderate pain in the right lumbar region.  Objective findings 
of tenderness over the sciatic nerve region were noted.  One 
physician opined that considering the pre-existing 
developmental first-degree spondylolisthesis, the veteran had 
been objectively returned to his pre-injury status.  An April 
1982 report reflects an opinion that the veteran's spina 
bifida occulta did not predispose him to back problems.  
September 1982 reports note that range of motion was greatly 
improved although hyperextension was still painful.  Some 
recurring pain and spasm was also noted.  In a November 1982 
report, the veteran's condition was noted as permanent and 
stationary.  The physician opined that the veteran's 
inability to perform heavy work activities was related to his 
developmental abnormality.

A radiology report of the spine dated in February 1983 
reflects an impression of bilateral pars defects with 
spondylolisthesis without disc herniation and only mild 
indentation on the foramen.

Complaints of frequent pain in the low back as well as the 
neck and hip were noted in a March 1986 private medical 
report.  Muscle spasms were also noted.  A private medical 
report dated in May 1986 shows the veteran complained of 
constant pain and stiffness of the low back.  

The veteran's service medical records reflect that the 
veteran was hospitalized in July 1986 for low back pain.  The 
veteran was released from the hospital in August 1986.  The 
veteran's injury was noted as low back pain secondary to 
facet joint syndrome.  A radiology report of the lumbosacral 
spine dated in July 1986 reflects occult spina bifida at L5 
and S1; a fusion defect of the inferior articulating facets 
of L2; hypertrophic changes present at the level of L4-L5; 
spondylolysis of L5 on the right and perhaps the left; and 
minimal spondylolisthesis of L5 on S1, grade I.  It was also 
noted that the heights of the vertebrae and the 
intervertebral disc were preserved and the pedicles were of 
normal appearance. 

A November 1986 private medical report reflects complaints of 
constant pain in the low back with occasional numbness.  It 
was noted that the veteran's car was rear-ended in June 1986 
and he reported some stiffness of his low back and neck.  The 
veteran reported that after a couple of physical therapy 
sessions, his back reverted to its previous state.  The 
veteran also reported injuring his back in July 1986 while on 
active duty.  The veteran stated he was still recovering from 
that injury.  A diagnosis of a sprain superimposed on 
spondylolisthesis was noted.  The physician also opined that 
the injury of October 1981 produced the level of discomfort 
that currently existed.  

Upon VA examination dated in July 1988, the examiner noted 
pain and limitation of motion in the lumbosacral spine.  VA 
clinical records dated in 1996 reflect treatment for 
depression, bronchitis, and low back pain.  A March 1998 VA 
clinical record states that x-ray examination of the spine 
revealed eight millimeters of anterolisthesis of L5/S1 with 
no instability on flexion and extension views, spina bifida 
occulta of the fifth lumbar vertebrae, pars defects at L5, 
and a lack of fusion of the ossification center of the 
inferior articular process of L2.  It was further noted that 
a computed tomography scan also showed a right-sided 
intraforaminal disc bulge with some superior prolapse and 
contact of the right L5 nerve root with the left side showing 
no contact.  

Overall, the Board finds that the aforementioned evidence 
establishes that the veteran's claim that his low back 
condition was aggravated by the July 1986 injury is plausible 
as it tends to show hospitalization during active service for 
treatment of low back pain and a subsequent diagnosis of a 
sprain superimposed on spondylolisthesis as well as pain and 
limitation of motion in the low back.  Thus, the veteran's 
claim is well grounded.  



ORDER

The claim of entitlement to service connection for a low back 
disorder is well grounded.  To this extent only, the appeal 
is granted.



REMAND

Because the claim of entitlement to service connection for a 
low back disorder is well grounded, VA has a duty to assist 
the appellant in developing facts pertinent to the claim.  
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); 
Murphy v. Derwinski, 1 Vet. App. 78 (1990).  

In light of the absence of medical records since 1996 as well 
as the need for medical evidence specifically addressing the 
issue of aggravation, additional development of the record is 
needed in order to enable the Board to render a final 
determination in this case.  Colvin v. Derwinski, 1 Vet. App. 
171 (1991).  

The Board notes that the veteran has the right to submit 
additional evidence and argument on this matter to the 
regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

Accordingly, the case is REMANDED to the RO for the following 
development:

1.  The RO should contact the veteran and 
obtain the names and addresses of all 
medical care providers who have treated 
the veteran for his low back condition 
since 1996.  After securing the necessary 
authorizations, the RO should obtain 
these records and associate them with the 
claims folder.

2.  The veteran should be afforded a VA 
specialist examination of his low back in 
order to more accurately determine the 
nature, extent, and etiology of his 
current disability.  The entire claims 
folder and a copy of this remand MUST be 
made available to and reviewed by the 
examiner prior to the examination.  All 
pertinent symptomatology and findings 
must be reported in detail.  All 
necessary tests and studies should be 
performed and reviewed by the examiner 
prior to completion of the examination 
report.  The examiner should then 
specifically comment as to (1) the nature 
and extent of the veteran's current low 
back disorder, (2) whether the veteran's 
pre-existing low back disorder increased 
in severity during his July 1986 active 
service, and if so, (3) whether the 
increase in severity was due to the 
natural progress of his condition or 
caused by the July 1986 service injury.  
A complete rationale for any opinion 
expressed must be provided.  All such 
information and opinions, when obtained, 
should be made a part of the veteran's 
claims folder.  

3.  Following completion of the above, 
the RO should review the claims folder to 
ensure that the requested development has 
been completed.  In particular, the RO 
should review the requested examination 
report and required opinion to ensure 
that they are responsive to and in 
complete compliance with the directives 
of this REMAND.  If not, the RO should 
implement corrective action.  

4.  The RO should then readjudicate the 
issue of entitlement to service 
connection for a low back condition.

If the benefit sought on appeal remains denied, the veteran 
and his representative should be furnished a supplemental 
statement of the case with regard to the additional 
development and afforded the opportunity to respond.  
Thereafter, the case should be returned to the Board for 
further appellate consideration, if in order.  The Board 
intimates no opinion as to the ultimate outcome of this case.  
No action is required of the veteran until he receives 
further notice.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	John E. Ormond, Jr.
	Member, Board of Veterans' Appeals