BVA9502565 DOCKET NO. 93-06 427 ) 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 for service connection for a neck disability. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty in the Armed Forces from December 1980 to August 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision from the San Francisco, California, Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in July 1991. A statement of the case was issued in August 1991. A supplemental statement of the case was issued in April 1992, informing the veteran that a substantive appeal should be submitted within 30 days if he desired to continue his appeal. A timely substantive appeal was received in May 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence to reopen his claims for service connection for a neck and a low back disability. He maintains that he had no problems with his neck or low back prior to entering service and that these areas were injured in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a neck disability; and that new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a low back disability. FINDINGS OF FACT 1. Service connection for a neck disability was denied by the RO in a September 1982 rating decision. The veteran, in an October 1982 letter was apprised of his procedural and appellate rights; however, a notice of disagreement was not received within the subsequent one-year period. 2. Additional evidence submitted subsequent to the RO's September 1982 decision, pertaining to the veteran's request to reopen his claim for service connection for neck disability, is new and material in that it raises a reasonable possibility that a review of all the evidence would result in a grant of service connection. 3. Service connection for a low back disability was denied by the RO in a September 1982 rating decision. The veteran, in an October 1982 letter was apprised of his procedural and appellate rights; however, a notice of disagreement was not received within the subsequent one-year period. 4. Additional evidence submitted subsequent to the RO's September 1982 decision, pertaining to the veteran's request to reopen his claim for service connection for a low back disability, is new and material in that it raises a reasonable possibility that a review of all the evidence would result in a grant of service connection. CONCLUSIONS OF LAW 1. The decision of the RO in September 1982 is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1993). 2. New and material evidence has been submitted and the claim for service connection for a neck disability, is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 3. New and material evidence has been submitted and the claim for service connection for a low back disability, is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence considered at the time of the RO's September 1982 decision can be briefly summarized. Regarding the veteran's neck disability, the veteran's medical examination pursuant to enlistment into service revealed that he had neck pain and viral meningoencephalitis in September 1980. Shortly after entering service, the veteran claimed of neck pain which, he claimed, was due to a fall. An impression of neck strain was given. On VA examination in July 1982, the veteran had no voluntary complaints regarding neck pain and the cervical examination was within normal limits. The RO found that the cervical strain was acute in nature and denied the claim. Regarding the veteran's low back disability, service medical records reveal that he complained of low back pain and tenderness after loading ammunition on an aircraft. An x-ray evaluation found spondylolysis at the L4 and L5 levels. The RO found that the veteran's chronic low back pain was due to congenital spondylolysis and was not aggravated by military service. The RO's September 1982 decision is final and cannot be modified unless evidence submitted in support of the veteran's claim is "new and material" and warrants revision of the previous decision pursuant to 38 U.S.C.A. § 5108 (West 1991). A two-step process is required, consisting of a review of the evidence to determine whether there is new and material evidence to reopen the claim; then if there is new and material evidence, the claim is reopened, and there must be a review of all the evidence, both old and new, to determine whether the benefit should be granted. An adverse determination regarding either step is appealable. Manio v. Derwinski, 1 Vet.App. 140 (1991). New evidence means evidence not previously submitted. 38 C.F.R. § 3.156(a) (1993). Material evidence is that which is relevant and probative to the issue being considered. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (citing Cherney v. Sullivan, 905 F.2d 214, 216 (8th Cir.1981)). It is also that which raises the reasonable possibility of a different decision, and bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and 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) (1993); Colvin, 1 Vet.App. at 174. For the limited purpose of determining whether a claim should be reopened, all evidence is presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1993). All evidence submitted after the last final denial of the merits of a claim must be considered to determine whether new and material evidence has been submitted to reopen the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). The records submitted since the September 1982, RO decision include private medical records and the veteran's statements and hearing testimony. The veteran stated, in statements and in testimony, that, he never had any problems with his neck or low back prior to entering service and that these problems originated from injuries sustained on an obstacle course in service. This evidence is not new because it summarizes and repeats contentions proffered in the previous proceeding that the veteran's injuries were sustained on an obstacle course in service. See Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1992). Medical records from Kaiser Permanente, dated from August 1988 to February 1989, are of record. They indicate that the veteran sustained a work-related injury to his head and neck. He also indicated that the injury aggravated his preexisting low back disability. The veteran related a past history that he had a previous neck injury inservice which did not cause symptoms for very long. This evidence is new and but it is not material to the issue of whether a neck injury was incurred or aggravated in service because, although it is relevant and probative to this issue, the statement from the veteran that his inservice injury resolved quickly would not change the outcome of the decision. In addition, this evidence is new but it is not material to the issue of whether a low back injury was incurred or aggravated in service. Medical records from Stephan I. Mann, dated from January 1986 to April 1990, are of record. They reveal treatment for low back pain. The veteran stated that he injured his neck and low back as a result of a fall in service and that there were no further of problems due to this injury after separation from service. This evidence is new but it is not material to the issue of whether a neck or low back injury was incurred or aggravated in service because, although it is relevant and probative to these issues, the statement from the veteran that he had no further problems related to his inservice injury would not change the outcome of the decision. Medical records from the Community Hospital of the Monterey Peninsula, dated in November 1983, are of record. They reveal treatment for a cervical strain due to an automobile accident. This evidence is new and but it is not material to the issue of whether a neck or low back injury was incurred or aggravated in service. A letter from Robert L. Black dated in January 1988 is of record. It states that the veteran was treated for several conditions prior to entrance into service but that the veteran was never treated for a back disorder. This medical evidence is new and is material to the issue of whether a disorder of the neck or low back preexisted entrance into service. The veteran submitted the last page of an undated medical report from Richard G. Baker, M.D., which indicates that the physician assigned 40 percent of the veteran's "permanent partial disability" to his inservice injury. This medical evidence is new and is material to the issue of the extent of the inservice aggravation of the veteran's neck and low back disabilities. In addition, the Board notes that either of these medical reports could possibly change the outcome of the decision. Based on the foregoing, the Board concludes that the veteran has submitted new and material evidence and his claims for service connection for neck and low back disorders are reopened. 38 C.F.R. § 3.156(a) (1993). ORDER The claims for service connection for a neck disability and a low back disability, are reopened, and to this extent only, the appeals are granted. REMAND In light of the above decision that the veteran's claims for service connection for a neck disability and a low back disability, are reopened, the entire record must be reviewed. The United States Court of Veterans Appeals has set forth a two- step analysis to be employed when a veteran is seeking to reopen a claim that has been previously denied in Manio v. Derwinski, 1 Vet.App. 140 (1991). The two-step analysis first requires that a determination be made under 38 U.S.C.A. § 5108 (West 1991), regarding whether the evidence added to the record is "new and material." If it is, as in the instant case, the claim is reopened and a second determination must then be made as to whether the evidence presented warrants a revision of the former disposition of the case. The second level of analysis must be based upon an evaluation of the claim in light of all the evidence, both new and old. The RO has not applied the second step of the two-step analysis. In consideration of the above scenario, the Board has determined that the Board is unable to adjudicate the veteran's claims without violating the veteran's statutory and regulatory procedural rights by addressing a question not properly considered by the RO. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). The VA has a duty to assist the veteran in development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veteran's Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence includes the procurement and consideration of any relevant VA or other medical records. Murphy v. Derwinski, 1 Vet.App. 78 (1990); Ferraro v. Derwinski, 1 Vet.App. 326 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). The veteran submitted the last page of an undated medical report from Richard G. Baker, M.D., and the RO should contact the veteran to obtain the complete clinical records of Dr. Baker. Under the circumstances in this case, further development and assistance are required. Thus, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request the address of Dr. Richard G. Baker. After obtaining the appropriate authorization, the RO should contact Dr. Baker and request copies of complete clinical records pertaining to the veteran's evaluation and/or treatment. 2. The RO should consider the veteran's reopened claims for entitlement to service connection for a neck disability and a low back disability, in light of the second step of the two-step analysis set forth in Manio v. Derwinski, 1 Vet.App 140 (1991). The RO should determine whether the "new" evidence, when considered with all evidence of record, provides a basis for an allowance. If this determination is adverse to the veteran, he and his representative should be provided with a supplemental statement of the case fully addressing the second step of the two-step analysis set forth in Manio, and explain the rationale for the adverse determination. If the reopened claim remains adverse on the basis that the evidence is not such to warrant an allowance, the supplemental statement of the case should include a summary of all the pertinent evidence of record, a citation of the applicable legal criteria governing the claim, and the reasons and bases for the denial. Following completion of the above actions, the case should be returned to the Board for further appellate consideration. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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).