BVA9507840 DOCKET NO. 93- 09 000 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for back disability, including sacralization in the upper left lumbar vertebrae. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for disability in the lower extremities, involving the knees and ankles. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from January 1948 to January 1957. In a July 1958 rating decision, the Boston, Massachusetts, Regional Office denied the appellant's claims requesting entitlement to service connection for disabilities in the back and legs, alleged as residuals of a fall from a telephone pole in service. He was notified of the July 1958 rating decision in August 1958 but did not file an appeal within one year thereafter. This appeal comes before the Board of Veterans' Appeals (Board) from a November 1990 rating decision by the Department of Veterans Affairs (VA) Houston, Texas, Regional Office (RO), which denied entitlement to service connection for disabilities of the back, knees, and feet. This appeal also arises from a rating decision by the RO in January 1991, which denied entitlement to service connection for disabilities in the ankles, knees, legs, and back. The issues certified to the Board were as follows: Service connection for ankle pathology manifested by pain; service connection for sacralization, upper left lumbar vertebra; service connection for knee disability; and whether the evidence is new and material to reopen claims for service connection for leg and back pathology. In reviewing the appellant's statements throughout the claims file, including his notice of disagreement in December 1990, the medical history he provided dated April 17, 1991, and the veteran's penned comments on the copy of the statement of the case provided him in April 1991, the Board finds that his claims center around his assertion that he sustained injuries to his back and lower extremities as a result of a fall from a pole in service. He claims that he developed peripheral neuropathy as a result of this injury. We conclude that it is the veteran's contention that the claims for service connection for disabilities of the knees and ankles are inseparable from his allegations first put forth in his original claim in 1958 requesting entitlement to service connection for disabilities of the legs, and are, therefore, included in the claim of whether new and material evidence has been presented to reopen a request for service connection for disabilities in the lower extremities. Similarly, the current claim requesting service connection for sacralization in the upper left lumbar vertebrae is considered to be included in the claim of whether new and material evidence has been presented to reopen a request for service connection for back disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that he sustained injuries to his back and lower extremities in a fall from a telephone pole in service, which left him with residual disability in his back, including sacralization in the upper left lumbar vertebrae, and lower extremities, including the knees and ankles. 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 appellant'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 presented with regard to the appellant's claims of entitlement to service connection for disabilities in his back and lower extremities. FINDINGS OF FACT 1. A July 1958 rating decision denied, on the merits, entitlement to service connection for disabilities in the back and in the lower extremities, and that decision became final when the appellant did not file an appeal within one year after the August 1958 notification of the decision. 2. The additional evidence submitted since the July 1958 rating decision includes statements from two fellow servicemen, dated in April 1990, indicating that they were present when the appellant fell and injured his back and lower extremities while on TDY assignment in England in 1953, and VA medical records, dated from 1984, showing that the appellant currently has disabilities in his back (including degenerative disc disease and arthritis) and in his lower extremities. CONCLUSION OF LAW The evidence received since the July 1958 rating decision denied service connection for entitlement to service connection for back and leg disabilities is new and material, and the claims are reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a) 20.302(a), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection was denied for back and lower extremity disabilities in a July 1958 rating decision. The appellant was duly notified of that decision in August 1958 but did not appeal. Following notification of the initial review and determination by the RO, a notice of disagreement must be filled within one year from the date and mailing of the notification, otherwise, the determination becomes final. 38 U.S.C.A. § 7105(b) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1994). Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. § 5108 (West 1991). New and material evidence is evidence not previously submitted through agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction 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) (1994). To justify a reopening 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 of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The evidence of record at the time of the July 1958 rating decision included the following: the appellant's service medical records, which showed no back or lower extremity disabilities at a January 1951 discharge and reenlistment medical examination or at a discharged medical examination conducted in December 1956 (except for athlete's feet and first degree pes planus), although at the December 1956 examination the appellant gave a history of a fall from a telephone pole in March 1953; a private medical record from J. M. Donovan, M.D., indicating that examination of the appellant in December 1957 had revealed findings consistent with chronic lumbosacral sprain, with the appellant reporting a history of back injury due to a fall from a telephone pole in 1953 while stationed in England; and a report of a July 1958 VA medical examination with an X-ray of the lumbosacral spine, which did not reveal any back or lower extremity disabilities. The evidence submitted since the July 1958 rating decision includes the following: medical evidence from 1984 showing that the appellant has disabilities in his back and in his lower extremities, including arthritis, degenerative disc disease and peripheral neuropathy; statements from two fellow servicemen, dated in April 1990, indicating that they had been on TDY assignment with the appellant in 1953 and had knowledge of the incident in which he allegedly fell from a pole and sustained injuries to his back and feet; and the appellant's testimony at his December 1991 personal hearing at which he described injuries to his back and lower extremities as a result of a 35 foot fall from a pole in 1950. After reviewing the evidence presented since the July 1958 rating decision, the Board finds that it contains evidence that must be considered in order to fairly decide the merits of the claim, specifically, the April 1990 statements from the fellow servicemen and the medical evidence showing current disability. This evidence bears on whether the veteran has current disability causally related to an injury during service. Therefore, the Board concludes that there has been evidence submitted since the July 1958 rating decision that is new and material. ORDER New and material evidence having been submitted, the claims to entitlement to service connection for disabilities of the back and lower extremities are reopened. REMAND The Board has determined that new and material evidence has been submitted to permit reopening of the appellant's claim of entitlement to service connection for disabilities of the back and lower extremities. The Board must now determine whether this case should be remanded to the RO for further development and adjudication. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). We find that additional development is necessary before final appellate review, and the claim is remanded to the RO for the following action: A VA orthopedist should be requested to review the claims folder, specifically the service medical records that reveal no report of a 35 foot fall claimed by the veteran to have been in 1950 and resulting in injuries to the back or lower extremities, and the new evidence submitted in connection with the appellant's reopened claims, which shows treatment for disabilities in his back (degenerative disc disease and arthritis) and his feet beginning in the 1980's, and which includes statements from persons claiming to have first hand knowledge of the appellant's hospitalization in 1953 for treatment of injuries sustained in a fall from a power pole. We note that in August 1984, at a time when the veteran was being treated for low back complaints, chronic traumatic osteoarthritis was noted. The orthopedist should be requested to clarify the nature of all disabilities currently present in the appellant's back and lower extremities (knee, ankle, or foot) and to express an opinion as to the etiology of all such identified disabilities, specifically whether the evidence demonstrates that any current back or lower extremity disabilities were present in service or are traceable to service. The RO should review the appellant's claim de novo with regard to the additional evidence submitted and the medical opinion obtained. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. BETTINA S. CALLAWAY 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 so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. 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) (1994).