UNITED STATES COURT OF VETERANS APPEALS

No. 93-1220

Samuel R. Evans, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided August 1, 1996 )

William D. Mallard, Jr., was on the brief for the appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General
Counsel; David W. Engel, Deputy Assistant General Counsel; and John D.
Lindsay, Jr., were on the brief for the appellee.

Before NEBEKER, Chief Judge, and KRAMER and STEINBERG, Judges.

STEINBERG, Judge, filed the opinion of the Court. NEBEKER, Chief Judge,
filed a concurring opinion.

STEINBERG, Judge: The appellant, veteran Samuel R. Evans, appeals an
August 27, 1993, Board of Veterans\' Appeals (BVA or Board) decision
denying reopening of claims for service connection of low back and
neuropsychiatric disorders, and denying an increased (compensable)
rating for scars, left hand. Record (R.) at 8-16. The appellant urges
the Court to reverse the Board\'s decision and to find that he is
entitled to service connection for the neuropsychiatric and back
conditions and an increased rating for left-hand scars. The Secretary
proposes a remand as to the two claims to reopen and seeks affirmance on
the rating-increase claim. For the reasons that follow, the Court will
vacate the Board decision as to the rating-increase claim and remand
that matter for further development and readjudication, and will affirm
the Board decision as to the two claims to reopen.

I. Background

The veteran served on active duty in the U.S. Army from January to
September 1957. R. at 26. A November 1956 preinduction examination
report indicated no abnormalities, illness, or disabilities, except for
a scar on his left elbow. R. at 33-36. A service medical record (SMR)
reported his complaint of pain in the lumbosacral spine after he had
lifted a heavy duffel bag, and noted that there was \"no previous
history of back strain\". R. at 45. He had complaints of back pain with
\"slight tenderness to palpation at L1-L2\" the following month. Ibid.

In July 1957, his company commander referred him for a neuropsychiatric
examination because he was unable to read or write and the commander
believed that he did not possess \"adequate intelligence to assimilate
instructions and training.\" R. at 53-54. Pertinent history revealed
longstanding episodic \"fainting spells\" causing unconsciousness for
one to five minutes \-- occurring most recently about a week prior to
enlistment. R. at 53. The examining psychiatrist concluded that this
history suggested that the veteran had \"suffered from a form of petit
mal epilepsy which he is apparently outgrowing\". Ibid. The examination
\"revealed an IQ of 77 with a mental age of approximately 11 years and
\"no evidence of psychosis or neurosis\". Ibid. The report contained a
diagnosis of \"inadequate personality, chronic, severe\" (R. at 53), and
recommended that the veteran be separated from service because he could
not be satisfactorily rehabilitated (R. at 54).

The veteran\'s SMRs also noted \"multiple superficial lacerations
\[and\] abrasions of dorsum \[(upper surface)\] of left hand\" (R. at
46) due to a jeep accident in July 1957 (R. at 47). An x-ray of his left
hand showed \"\[n\]o bony abnormalities\". R. at 308. Approximately ten
days later, a clinical SMR reported \"minimal edema and very slight
limitation of motion of the . . . joints of all fingers\". R. at 51.
(Edema is \"the presence of abnormally large amounts of fluid in the
intercellular tissue spaces of the body\", Dorland\'s Medical Dictionary
528 (28th ed. 1994) \[hereinafter Dorland\'s\].) Two days thereafter, a
clinical SMR noted that \"\[e\]dema of dorsum, right \[sic\] hand has
subsided and range of motion of all joints is normal.\" R. at 51. The
veteran\'s September 1957 separation medical examination report noted
\"\[f\]ull range of motion\", \"\[n\]o abnormalities\" with respect to
\"paraspinal muscles or reflexes\", and \"\[t\]aenia vesicul\[a\]r,
moderate\". R. at 23. (Taenia is \"a flat band or strip of soft
tissue\"; vesicular is pertaining to or made up of vesicles (small
saclike bodies containing liquid) on the skin, Dorland\'s at 1656, 1821,
1820.) A corresponding report of medical history included the veteran\'s
notes of having had \"swollen or painful joints\", \"depression or
excessive worry\", and \"nervous trouble\", and a physician\'s summary
of \"\[j\]eep accident \[illegible\] months ago \-- back and head hurt.
Back hurt \[with\] lifting.\" R. at 60-61.

In October 1957, the veteran filed with a Veterans\' Administration (now
Department of Veterans Affairs) (VA) regional office (RO) a claim for,
inter alia, \"\[i\]njury, \[left\] \[h\]and . . . (\[g\]rip \[l\]oss)\"
and a \"\[b\]ack \[i\]njury . . . (\[p\]ain on lying down)\", both of
which he asserted were from the jeep accident in August 1957 (R. at 29;
see also R. at 71-72); however, SMRs do not include the back as an area
injured in the jeep accident. See R. at 46-56. A December 1957 VA
medical examination report related the veteran\'s complaints as, inter
alia: \"Back hurts when lies down\" and \"\[h\]and is weak \-- left
hand\" (R. at 64), and included the following description of his
musculoskeletal system:

All joints of both upper and lower extremities have full range of motion
without pain. There is no tenderness, swelling, or crepitation on motion
of any joints. The para-vertebral muscles are not tender or spastic. He
can . . . squat and rise from squatting position without difficulty.
There are 2 small scars, less than 1 cm in diameter on the dorsum of the
left hand. The grip is good and the scars are non-adherent.

R. at 66. As to the veteran\'s psychiatric condition and personality,
the examiner noted that the veteran \"appear\[ed\] to have \[a\] low
mental age\[;\] otherwise normal\". R. at 67. The diagnosis included,
inter alia, \"\[s\]cars, two, small less than 1 cm in diameter, dorsum
left hand, non-adherent, non-symptomatic, non-disabling\" and \"\[n\]o
abnormality of back \-- no evidence of back injury found\". Ibid.

A VA x-ray of the lumbar spine, lumbosacral region, sacrum, and major
portion of the pelvis in January 1958 showed \"no primary bone or joint
abnormality\"; \"no sign of old fracture, congenital abnormalities and
no sign of arthritis.\" R. at 361. A June 1958 VARO decision denied
service connection for, inter alia, residuals of a back injury and
granted a 0% rating for left-hand scars. R. at 83, 85.

In July 1958, the veteran requested that his \"nervous condition be
added to \[his\] claim for disability\". R. at 91. The next month, the
RO denied his claim for, inter alia, a nervous disorder, noting that the
evidence of record showed a diagnosis of an \"inadequate personality\",
which is a \"\[c\]onstitutional or developmental abnormality\" and thus
\"not a disability within the meaning of the law for which compensation
is payable\". R. at 94-95. A February 1961 medical statement from Dr.
Jarrell, a private physician, stated: \"Some lumbo\[s\]acr\[a\]l pain on
flexion and palpation noted, \[s\]cars and some weakness noted of left
hand\". R. at 99. The impression was, inter alia, \"\[l\]umbo\[s\]acral
sprain \[with\] \[p\]ossible . . . arthritic changes\", and
\"\[w\]eakness \[in the\] left hand grip\". Ibid.

The veteran sought to reopen his claim for a back disorder by submitting
a January 1977 report from a private physician, Dr. Hadden, who noted an
impression of \"\[p\]ostoperative HNP \[herniated nucleus pulposus\]
with degeneration of L4\[-\]5 and S-1, mild.\" Ibid. History included
the excision of a herniated disc in 1970. Ibid. A medical statement from
Dr. Thompson, a private orthopedic surgeon, noted in May 1977:

\[The veteran\] claims documented back injury in 1957 while in service.
In 1962\[, he\] began having additional low back difficulty, eventuating
in disk surgery (left L5/S1) in 1971, after several attacks.

Based on retrospective reasoning, with history of back difficulty after
a jeep upset in 1957, it appears that there is some service-connection
of this man\'s low back problem. R. at 116. A July 1977 RO decision
denied reopening of his back claim. In August 1977, the veteran appealed
to the BVA (R. at 109, 130) and submitted five lay statements attesting
to his complaints of back pain at various times after service (R. at
124, 126, 128, 134, 136). He and his mother testified before the RO. R.
at 138-49. He testified that two days after the jeep accident he had
experienced back pains after lifting a duffel bag (R. at 138-39); that
he again had had back pains approximately three months after being
discharged (R. at 141); and that the doctor who had operated on his back
had told him that \"a regular x-ray couldn\'t determine how a back
injury was\" (R. at 143).

An x-ray report of his lumbosacral spine in January 1978 revealed
\"\[m\]inimal hypertrophic degenerative changes\" with \"narrowing of
the intervertebral disc spaces at the L4-L5 and L5-S1 levels\". R. at
154. The accompanying VA medical examination report (R. at 156-60)
included a history of residual back injury, related the veteran\'s
account that his back had not been treated immediately after the 1957
jeep accident, and noted continued pain after a 1970 operation for
removal of a disc (R. at 157). The examiner reported current complaints
of back pain that \"runs into \[the veteran\'s\] left leg\". Ibid. The
diagnosis was \"\[b\]ack injury \-- history onset 1957 \-- laminectomy
1970 \-- scoliosis \--restriction of motion . . . low back syndrome\".
R. at 159. In a September 1978 BVA decision, the Board denied service
connection for a back disability. R. at 186. The Board found that the
veteran \"was treated for an acute and transitory episode of low back
pain in January 1957 during active service\", and that \"\[t\]here was
no etiologic relationship between the herniated disc and the veteran\'s
period of active service.\" R. at 186. Thereafter, in November 1978, the
RO denied service connection for both the back and nervous conditions,
without mentioning the issue of new and material evidence. R. at 207. A
July 1979 BVA decision denied reopening of both claims. R. at 233.

A VA medical examination report in May 1980 included lumbosacral spine
x-ray conclusions of \"\[d\]egenerative changes . . . worse at the level
of the lower lumbar spine\" and \"no evidence of fracture or
dislocation\", and noted \"\[n\]o change . . . in comparison\" to the
January 1978 study. R. at 247. The report found that the veteran had a
\"lumbar discogenic disease\", and a diagnosis of \"\[r\]esiduals of
status post laminectomy with decreased sensory changes of the left
thigh\", \"nervous condition\", and \"\[d\]egenerative changes of lower
lumbar spine\". R. at 249. An accompanying VA psychiatric examination
report diagnosed \"\[t\]ension, expressed as a result of physical pain\"
(R. at 252), and explained that the \"nervous problem consists of a
feeling of tenseness, itching at times, and breaking out from time to
time in red spots\", with difficulty sleeping and episodes of shaking,
and that the veteran had reported that \"this has been the case ever
since the jeep accident and the back problems in the military\", (R. at
251).

The veteran again sought to reopen his back claim and submitted a
February 1983 medical statement from Dr. Thompson, a private physician,
and his own statement. R. at 277, 284, 286; see R. at 116. Dr. Thompson
stated that he had reviewed the veteran\'s SMRs and Dr. Jarrell\'s 1961
medical report, as well as the veteran\'s account of continued \"low
back discomfort\", and he concluded:

Because of the continuation of low back symptoms after the jeep
accident, and in light of the further developments, there seems to be a
causal relationship suggesting strongly that his low back condition had
its origin in the jeep accident of 1957, starting with damage to the
lumbosacral disk, leading to its deterioration.

Ibid. In appealing May 1982 and April 1983 RO denials of reopening, the
veteran submitted December 1983 statements from G. Gerber, D.O.,
documenting the veteran\'s back pain and limited range of motion, and
from Dr. Orea, a private physician, and the two prior statements from
Dr. Thompson. R. at 295, 297-312; see R. at 317. Dr. Orea stated that he
had been treating the veteran since August 1983 for a \"\[c\]hronic
\[d\]epressive condition, which in my opinion has probably been present
since \[the veteran\] served in the Army in 1957, and prior to his
administrative discharge from the service\". R. at 298. Dr. Orea also
stated:

As far as the origin of \[the veteran\'s\] depression, it is my belief
that the stress and pressures of the military life have played a major
role in his depression together with a chronic back pain which has been
present since he sustained a back injury on \[July 14, 1957\], while
riding in an Army jeep.

The main purpose of this letter is to bring up to your attention that
\[the veteran\] has a \[c\]hronic \[d\]epressive condition, which\[,\]
in my opinion, is service connected.

Ibid.

In March 1985, the veteran also submitted private medical records from
St. Luke\'s Hospital with respect to a March 1971 nine-day
hospitalization for back surgery. R. at 366-73. According to those
records, the veteran\'s chief complaint was pain in the lower back and
in the left leg, with the most recent onset four months previously. R.
at 366. A myelogram had \"revealed narrowing of L-4, 5 and L-5, S-1
discs, suggesting a protruded disc at L-5, S-1\". R. at 366, 367. A
surgical report included a preoperative diagnosis of \"\[r\]uptured
lumbar intervertebral disc, L5/S1, left\", and indicated that Dr.
Thompson had performed a \"\[l\]umbar laminectomy \[with\] removal of
ruptured intervertebral disc tissue L5/S1 left\". R. at 368. The veteran
was discharged \"much relieved from pain\". R. at 369. August 1978 VA
medical records (apparently not previously considered but submitted in
March 1985) noted that after the veteran\'s 1971 surgery, he \"went on
to working \[with\] heavy equipment\[,\] . . . hit a stump \[about\] 4
years ago\[,\] and his back has been getting worse ever since \-- little
by little\". R. at 377.

The BVA denied reopening of the back claim in October 1985, finding that
the evidence submitted in support of reopening \"does not change the
factual basis on which the prior decisions were predicated\" because the
evidence \"does not show the presence of a chronic back disorder while
the veteran was in service\[,\] nor does it show the presence of a
chronic back disorder until many years after he was separated from
service.\" R. at 419, 418. In March 1986, the RO again denied reopening.
R. at 426, 428.

In November 1989, the veteran sought to reopen his claim for service
connection of a neurological condition (R. at 448); various medical
records and SMRs previously of record were submitted on the veteran\'s
behalf (R. at 456-513). In January 1990, the RO informed the veteran
that his submissions had previously been considered; that therefore no
action could be taken on his request to reopen; and that new and
material evidence was required to reopen his claim. R. at 574. In June
1990, he submitted medical records from the VA Medical Center, Mental
Hygiene Clinic (MHC), in Dublin, Georgia, showing treatment and therapy
for the period May 1989 through May 1990. R. at 582-97. MHC progress
notes for June through November 1989 stated: \"PTSD \[post-traumatic
stress disorder\] \[g\]roup participation\". R. at 565, 567, 568,
589-97. Progress notes from April 1990 stated that the veteran
\"appear\[ed\] sad \[and\] apparently has several current stresses\". R.
at 585. A May 1990 VA psychology assessment report noted that he had
been \"treated for depression since the early 70\'s by reports in
current chart\" and a history of depression going back further as
described by the veteran; that he \"had been followed by MHC \[which
had\] recommended his admission . . . for stabilization\"; and that he
has a \"\[d\]ysthymic \[d\]isorder\". R. at 604. (Dysthymic means
\"depressed\", Dorland\'s at 519.)

A May 1990 VA medical record showed that physical therapy had been
recommended for, inter alia, the veteran\'s \"pain and swelling, left
hand\" (the primary clinical diagnosis) and \"\[r\]eflex sympathetic
dystrophy left hand\" (the secondary clinical diagnosis). R. at 603.
(Sympathetic reflex dystrophy is \"a series of changes caused by the
sympathetic nervous system, marked by pallor or rubor \[redness, a sign
of inflammation\], pain, sweating, edema, or osteoporosis, following
muscle sprain, bone fracture, or injury to nerves or blood vessels\",
Dorland\'s at 520-21, 1474.) The therapy consisted of \"\[p\]araffin wax
dripping to left hand\" and \"\[g\]rip strengthening exercises to left
hand\". Ibid. A VA consultation report noted \"diminished grip strength
of left upper extremity\" and included a diagnosis of \"\[r\]eflex
sympathetic dystrophy\[,\] left hand\". R. at 611. An accompanying x-ray
report of his left hand and wrist showed a negative impression with
\"\[s\]oft tissue swelling of the left wrist\" and \"\[n\]o evidence of
osteoporosis\" R. at 623.

The veteran then sought an increased rating for his service-connected
left-hand condition, stating in June 1990:

\[The\] problem with my left hand is the loss of grip causing me to drop
objects (50%-60% loss of use I feel). I used to have burning sensation
across the back of my hand and picked pieces of glass out of my hand for
years. Now in a great while I still pick pieces of glass out of my hand.

R. at 623. A September 1990 RO decision denied an increased rating for
service-connected residuals of his left-hand injury and denied reopening
of his claim for service connection for a neuropsychiatric disorder. R.
at 618-19. The decision noted: \"The current treatment records do not
show that the vet\[eran\] suffers with a service\[-\]incurred
neuropsychiatric disorder.\" R. at 618. The appellant has asserted in
this appeal that he never received notice of this decision.

In October 1990, the RO received the following additional VA medical
records dating from May to September 1990. R. at 621-41. May 1990
progress notes reported complaints of mid-back and left-shoulder pain as
well as left-hand weakness, and a history of \"\[d\]epressive neurosis\"
and \"\[r\]eflex sympathetic dystrophy of left hand\". R. at 626. July
1990 notes reported constant pain in his left hand and low back region
and recommended continued physical therapy, including, inter alia,
grip-strengthening exercises for his left hand and \"paraffin wax
dripping to left hand\". R. at 636. A December 1991 RO decision declined
reopening his claims for back and neuropsychiatric conditions and denied
an increased (compensable) rating for his service-connected left-hand
condition. R. at 677, 681. He appealed to the BVA. R. at 689; see also
R. at 718. In a July 1992 statement, he asserted that, inter alia, his
\"hand has become numb\" and that he \"can\'t hold a cup of coffee, or
use it for putting on \[his\] clothes\" (R. at 692-93), and attached
copies of documents previously of record, including SMRs and VA records
(R. at 694-701), and documents not previously of record, including VA
records from March and April 1991 showing that he had received physical
therapy (R. at 702) and July 1992 VA progress notes reporting his
complaints of numbness in the left forearm, hand, and fingers, and
left-hand weakness and the examiner\'s opinion that he has \"poor effect
in l\[eft\] hand grip . . . \[without\] motor weakness\" (R. at 703).

In the August 1993 BVA decision here on appeal, the Board denied
reopening of the service-connection claims for back and neuropsychiatric
disorders, and denied an increased (compensable) rating for \"scars,
left hand\". R. at 15. As to the back claim, the Board found that
evidence submitted since the January 1990 RO letter was not new and
material. R. at 10. As to the neuropsychiatric claim, the Board found
that evidence submitted since the September 1990 final RO decision was
not new and material. Ibid. As to the left-hand increased-rating claim,
the Board found that the schedular criteria for a compensable evaluation
were not met. Ibid.

II\. Analysis

A. Left-Hand Rating-Increase Claim

The veteran contends that the residuals of his service-connected
left-hand condition have increased in severity since he was awarded
service connection and a noncompensable rating in the prior final June
1958 RO decision. R. at 615. At the time the RO awarded service
connection in July 1958, a December 1957 VA examination report noted two
small non-adherent scars on the dorsum of the left hand and a good grip.
R. at 66. In its August 1993 decision, the Board concluded that a
compensable rating was not warranted, finding that \"there is no
evidence that establishes that the \[veteran\'s\] pain and swelling \[of
his left hand\] are related to his service-connected scars\"; that there
is \"no evidence that the scars have caused a decrease in his range of
motion of his hand or that the scars have caused him pain\"; and that
the \"left hand scars are static and have not worsened since the
original noncompensable rating\". R. at 15.

Disability ratings are to be based, as far as practicable, upon the
average impairments of earning capacity resulting from each disability
and its residual conditions, in civil occupations. 38 U.S.C. § 1155; 38
C.F.R. § 4.1 (1995). The determination of the level of disability due to
scarring is made under 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800
through 7805 (1995). See Shipwash v. Brown, 8 Vet.App. 218, 223 (1995).
A veteran can receive separate disability ratings unless the conditions
constitute the \"same disability\" or the \"same manifestation\" under
38 C.F.R. § 4.14 (1995). See Esteban v. Brown, 6 Vet.App. 259, 261
(1994). DC 7803 provides for a 10% rating for scars that are
\"superficial, poorly nourished, with repeated ulceration\". DC 7804
provides for a 10% rating for scars that are \"superficial, tender and
painful on objective demonstration\".

Pursuant to DC 7805, a scar can also be rated based \"on limitation of
function of part affected\". In this case, the part affected by the
scars relates to the veteran\'s left hand. The schedule of ratings for
muscle injuries as to the forearm and hand, 38 C.F.R. § 4.73 (1995),
provides for a 10% rating under DC 5307 where there is moderate loss of
\"\[f\]lexion of wrist and fingers\" due to damage to \"\[m\]uscles
arising from internal condyle of humerus\"; a 10% rating under DC 5308
where there is moderate loss of \"extension of wrist, fingers\[,\] and
thumb\" due to damage to \"\[m\]uscles arising mainly from external
condyle of humerus\"; and a minimum 10% rating under DC 5309 where there
is \"limitation of motion\" in function of \"grasping movements\" of the
forearm muscles, \"supplemented by the intrinsic muscles \[of the hand\]
in delicate manipulative movements\". An additional note under DC 5309
provides: \"The hand is so compact a structure that isolated muscle
injuries are rare, being nearly always complicated with injuries of
bone, joints, tendons, etc.\"

The appellant has been assigned a 0% rating for scars, but it is unclear
under which DC \-- 7803, 7804, or 7805 \-- such a rating was assigned.
Because the veteran\'s original claim in 1957 was for injuries to his
left hand, grip loss (and not for the physical, superficial scar), and
because his June 1990 statement and October 1990 submission of medical
records indicated that he was requesting an increased rating for his
service-connected left-hand condition based on loss of grip (R. at 615,
636), the Court will consider the appellant\'s claim for an increased
rating for left-hand residuals to be a claim for an increased rating
under DC 7805, which focuses, not on the superficial aspects of a scar,
but on the limitation of function of the part affected. Because it is
the veteran\'s hand that was affected, the appropriate ratings, as
stated above, are found under DCs 5307 - 5309. Under DC 5309, a
demonstrated level of grip loss is a manifestation which would entitle
the veteran to an increased rating.

In its decision, the Board failed to discuss adequately DC 7805 and the
criteria for a 10% rating under DCs 5307, 5308, and 5309, and the
specific functions of muscles associated with those DCs. The criteria in
DC 5309 appear to be particularly relevant in this case because the
veteran has been asserting grip loss as a residual of his in-service
hand injury since his original 1957 claim, submitted three months after
discharge (R. at 29), and because the presence of fluid in the tissue of
the dorsum of the veteran\'s left hand was noted in service (R. at 51)
and at separation therefrom (\"\[t\]aenia vesicul\[a\]r\", R. at 23).
After he filed his original claim, a December 1957 VA examination report
specifically characterized his ability to grip as \"good\" and also
noted that his scar was nonsymptomatic (R. at 66-67) prior to the RO\'s
assignment of a 0% rating in June 1958. Subsequently, a February 1961
medical statement from Dr. Jarrell reported an impression of
\"\[w\]eakness \[in\] left hand grip\" (R. at 99). Not only did the
Board in its August 1993 decision incompletely note Dr. Jarrell\'s
impression as \"weakness\" rather than as weakness in the grip (R. at
14), but the decision failed to discuss grip loss at all. Although the
Board did discuss the May 1990 x-ray results, which revealed swelling of
the soft tissue of the left hand, it did not discuss the May 1990 VA
medical records that gave a clinical diagnosis of \"\[r\]eflex
sympathetic dystrophy left hand\" (R. at 603, 611) and \"diminished grip
strength of upper extremity\" (R. at 611), and recommended therapy of
\"\[g\]rip strengthening exercises to left hand\" (R. at 603, 636). The
Court holds that the Board failed to provide an adequate statement of
reasons or bases under 38 U.S.C. § 7104(d)(1) for rejecting the above
evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App.
36, 39-40 (1994) (pursuant to 38 U.S.C. § 7104(d)(1), Board must analyze
credibility and probative value of evidence, account for evidence which
it finds to be persuasive or unpersuasive, and provide reasons for its
rejection of all material evidence favorable to veteran).

Accordingly, the Court will vacate the Board decision as to the
rating-increase claim and remand that matter for the Board to apply the
above DCs together with the evidence of record relating to the
veteran\'s diminishing grip strength. In addition, prior to
readjudication, a new examination (in accordance with applicable
regulations and taking into account the above DCs) should be obtained to
address the extent of his disability and to provide a medical opinion as
to whether the left-hand grip loss stems from any condition arising
during service (for example, whether the swelling of the soft tissue
over the wrist is caused by edema, the same condition that had existed
in service (see R. at 51)). See Green (Victor) v. Derwinski, 1 Vet.App.
121, 124 (1991) (duty to assist may include \"the conduct of a thorough
and contemporaneous medical examination, one which takes into account
the records of prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one\"); 38 C.F.R. § 4.48
(physical examination of scar should include \"whether it is painful,
inflamed or keloid; adherent or nonadherent; whether it . . . is
exerting traction or limiting normal motion of the parts involved;
whether . . . there is bone or muscle loss, . . . and, if so, to what
extent and how productive of interference with normal functions\"); see
also Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991); 38 C.F.R. § 4.2
(1993) (\"if the \[examination\] report does not contain sufficient
detail, it is incumbent on the rating board to return the report as
inadequate for evaluation purposes\"); 38 C.F.R. § 19.9 (1995)
(requiring Board to remand matter when, during course of review, it
finds that further evidence, or clarification of evidence, is essential
for proper appellate decision).

B. Claims to Reopen

1\. Generally applicable law. Under the applicable law, the Secretary
must reopen a previously and finally disallowed claim when \"new and
material evidence\" is presented or secured with respect to the basis
for the disallowance of that claim. See 38 U.S.C. §§ 5108 (\"\[i\]f new
and material evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the claim and
review the former disposition of the claim\"), 7104(b) (\"when a claim
is disallowed by the Board, the claim may not thereafter be reopened and
allowed\[,\] and a claim based upon the same factual basis may not be
considered\"), 7105(c) (\"\[i\]f no notice of disagreement \[(NOD)\] is
filed in accordance with this chapter within the prescribed period, the
action or determination shall become final and the claim will not
thereafter be reopened or allowed, except as may otherwise be provided
by regulations not inconsistent with this title\"); Suttmann v. Brown, 5
Vet.App. 127, 135 (1993) (applying section 5108 to claim denied by final
RO decision).

On a claim to reopen a previously and finally disallowed claim, a
\"two-step analysis\" must be conducted under section 5108. Manio v.
Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined
whether the evidence presented or secured since the prior final
disallowance of the claim is new and material when \"the credibility of
the \[new\] evidence\" is presumed. Justus v. Principi, 3 Vet.App. 510,
513 (1992); see Duran v. Brown, 7 Vet.App. 216, 220 (1994) (\"Justus
does not require the Secretary to consider the patently incredible to be
credible\"). (The concurring opinion\'s analysis states that the
presumption of credibility attaches to certain previously presented
evidence. That matter is not raised by the facts of this case.) Second,
if the evidence is new and material, the Board must then reopen the
claim and \"review the former disposition of the claim\", 38 U.S.C. §
5108 \--that is, review all the evidence of record to determine the
outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1
Vet.App. 210, 215 (1991).

As to step one, the determination whether to reopen a previously and
finally disallowed claim, the Court has synthesized the applicable law
as follows:

\"New evidence\" is that which is not merely cumulative of other
evidence of record. \[See Colvin v. Derwinski, 1 Vet.App. 171, 174
(1991).\] Evidence is \"material\" where it is relevant to and probative
of the issue at hand and where there is a reasonable possibility that,
when viewed in the context of all the evidence, both new and old, it
would change the outcome.

Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox (Billy) v. Brown, 5
Vet.App. 95, 98 (1993). A Board determination as to whether evidence is
\"new and material\" for purposes of reopening is a question of law
subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1).
See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App.
at 213; Colvin, supra. Hence, it would rarely be necessary for the Court
to remand, as the parties suggest, for the Board to make a new
determination as to reopening. See Annoni v. Brown, 5 Vet.App. 463, 467
(1993).

2\. Manio step-one process. It has perhaps not been made expressly clear
in prior cases that the first step of the Manio two-step process as to a
claim to reopen involves three questions: Question 1: Is the newly
presented evidence \"new\" (that is, not of record at the time of the
last final disallowance of the claim and not merely cumulative of other
evidence that was then of record, see Struck v. Brown, 9 Vet.App. 145,
151 (1996); Blackburn, Cox, and Colvin, all supra)? Question 2: Is it
\"probative\" of \"the issue\[s\] at hand\" (Cox and Colvin, both supra)
(that is, each issue which was a specified basis for the last final
disallowance (see Struck, supra))? Question 3: If it is new and
probative, then, in light of all of the evidence of record, is there a
reasonable possibility that the outcome of the claim on the merits would
be changed (see ibid.)? As Blackburn indicated, affirmative answers to
both questions 2 and 3 \--involving the probative nature of the \"new\"
evidence and the reasonable possibility of outcome change, respectively
\-- are required in order for \"new\" evidence to be \"material\"
(notwithstanding the concurring opinion\'s assertion to the contrary,
section 5108 requires that a claim be reopened \"\[i\]f new and material
evidence is presented or secured\"). Blackburn, 8 Vet.App. at 102. As to
those two \"materiality\" components, the credibility of the newly
presented evidence is generally presumed under Justus and Duran, both
supra. In looking at the first materiality component (whether the
evidence found to be \"new\" is also probative) the focus is on the new
evidence; as to the second materiality component (whether there is a
reasonable possibility that the outcome on the merits would be changed),
the focus is on all of the evidence of record rather than just on the
new evidence. See Struck and Blackburn, both supra; Glynn v. Brown, 6
Vet.App. 523, 528-29 (1994); Cox and Colvin, both supra.

Regarding the question whether the new evidence is probative, evidence
is \"probative\" when it \"tend\[s\] to prove, or actually prov\[es\] an
issue\". Black\'s Law Dictionary 1203 (6th ed. 1990) \[hereinafter
Black\'s\]. (The requirement that the newly presented evidence be
\"probative\" necessarily incorporates the requirement that it be
\"relevant\" since, by definition, all \"probative\" evidence is
\"relevant\". Compare Black\'s at 1203 (probative) with Black\'s at 1291
(defining relevant evidence as \"\[e\]vidence tending to prove or
disprove an alleged fact\" (emphasis added))). Hence, in order to
warrant reopening a previously and finally disallowed claim, the newly
presented or secured evidence must be not cumulative of evidence of
record at the time of the last prior final disallowance and must tend to
prove the merits of the claim as to each essential element that was a
specified basis for that last final disallowance of the claim. In
determining whether evidence is thus probative (that is, whether it
supplies evidence the absence of which was a specified basis for the
last final disallowance), the specified basis or bases, as discernible
from that last decision, for the disallowance must be considered. If the
newly presented evidence is both new and probative, then, the claim will
be reopened if, upon consideration of all the evidence (new and old),
there is a reasonable possibility that the outcome would be changed. See
Struck, Blackburn, Glynn, Cox, and Colvin, all supra.

In connection with today\'s holding, the Court stresses, as to the
determination (during the Manio step-one process) of the materiality of
evidence presented since the last final disallowance of the claim, that
the newly presented evidence need not be probative of all elements
required to award the claim (for example, as to a service-connection
claim, Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff\'d, 78 F.3d 604
(Fed. Cir. 1996) (table), described three elements of a well-grounded
claim: Competent evidence of in-service incurrence or aggravation of a
disease or injury; a current disability; and a causal nexus between the
in-service incurrence or aggravation and the current disability), but
need be probative only as to each element that was a specified basis for
that last disallowance. Indeed, to require that \"old\", probative
evidence be put forward again would be inconsistent with the Court\'s
long-standing holding that \"new\" evidence \"is not that which is
merely cumulative\" of previously presented evidence. Colvin, supra.

Similarly, today\'s holding in no way suggests that the newly presented
evidence must itself, without regard to the prior evidence of record,
create a reasonable possibility of a changed outcome on the merits.
Quite the contrary. The Court expressly reaffirms the conclusion in
Glynn, 6 Vet.App. at 528-29, that the prior evidence of record is
vitally important in determining newness as well as the reasonable
possibility of a changed merits outcome for purposes of deciding whether
to reopen a claim. See Blackburn, supra (\"reasonable possibility that,
when viewed in the context of all the evidence, both new and old, \[the
newly presented evidence\] would change the outcome\"); Glynn, Cox, and
Colvin, all supra. It follows inexorably that the reasonable possibility
of a changed outcome can be decided only by reviewing de novo the same
evidence (that is, all of it) that would be reviewed were the claim
actually to be reopened and the former negative disposition on the
merits reevaluated. See Jones, 1 Vet.App. at 214 (once claim has been
reopened, adjudicator is \"to decide the merits of a reopened claim . .
. \[by\] looking at the new and material evidence in the context of all
the other evidence of record and not in isolation\"); Masors, supra
(determination whether to reopen claim is question of law subject to de
novo review by Court); Colvin, supra.

As the discussions in parts II.B.4.a. (Neuropsychiatric disorder) and
II.B.5. (Back disorder) show, under section 5108 there would be new and
material evidence to reopen each of the claims in question if the Court
were to conclude that the last merits decision was the last final
\"disallowance\" of the claim. The fact situation here thus requires the
Court to decide whether, for purposes of determining whether to reopen a
claim, all the evidence since the last final denial on the merits or
only since the last final consideration of the claim is to be considered
as newly presented. The answer to that question is dispositive of
whether the claims are to be reopened in this case. The Secretary has
suggested that Glynn, 6 Vet.App. at 528-29, provided a definitive answer
to that question. Brief (Br.) at 12; see also Duran, 7 Vet.App. at 221
(applying Glynn). As the ensuing discussion illustrates, the Court
disagrees.

3\. Interpretation of \"disallowed\" in section 5108. The critical issue
in determining which evidence is to be considered as newly presented for
purposes of deciding whether to reopen a claim is the meaning of the
term \"disallowed\" in the following sentence in section 5108: \"If new
and material evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the claim and
review the former disposition of the claim.\" 38 U.S.C. § 5108.

In Edenfield, the en banc Court interpreted the term \"disallowed\"
without the limiting words \"on the merits\". Edenfield v. Brown, 8
Vet.App. 384, 389 (1995). The Court held that a claim that is found not
well grounded is a claim that is \"disallowed\" for purposes of sections
7104(b) and 5108. Id. at 390 (\"a veteran, who elects to file a claim
without sufficient evidence to \`ground\' it, and consequently has it
disallowed, will . . . have to produce new and material evidence before
the adjudicators have authority to reopen and allow the previously
disallowed claim\"). Subsequently, in Graves v. Brown, the Court, citing
Edenfield (for a proposition analogous to its holding) and 38 U.S.C.
§5110(a), held that an application to reopen a previously and finally
disallowed claim is itself a claim for VA benefits and does not lose its
status as a claim if new and material evidence has not been submitted.
Graves, 8 Vet.App. 522, 524 (1996); see also 38 C.F.R. § 3.160(e)
(1995).

Hence, under Edenfield and Graves an unsuccessful claim to reopen a
prior final disallowance of a claim is, just as Edenfield held as to a
claim found not well grounded, a claim that is \"not allowed, that is
disallowed.\" Edenfield, 8 Vet.App. at 389-90. A decision by an RO or
the BVA refusing, because of a lack of new and material evidence, to
reopen a previously and finally disallowed claim, after having
considered newly presented evidence, is, in the truest sense of the
word, another \"disallowance\" of a claim \-- the claim to reopen \--
because that claim is not being \"allowed\".

In sum, Edenfield teaches that neither section 5108 nor the statutory
scheme provides that a claim can be \"disallowed\" only where there has
been a disposition on the merits. Accordingly, the Court holds, in line
with Edenfield, that sections 5108, 7104(b), and 7105(c) require that in
order to reopen a previously and finally disallowed claim (whether
decided by the BVA or an RO) there must be \"new and material evidence
presented or secured\" (that is, present in the claims file, in fact or
constructively, see Bell v. Derwinski, 2 Vet.App. 611 (1992), or having
been submitted to VA by or on behalf of the claimant) 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.

The Court will now proceed to apply the above holding and the analysis
in part II.B.2., above, to the facts of the two claims to reopen at
issue in this case.

4\. Neuropsychiatric disorder. In its August 1993 decision, the Board
stated that the issue as to this claim was \"whether the evidence
submitted since the September 1990 RO decision \[wa\]s new and material
so as to warrant reopening \[of\] the veteran\'s claim.\" R. at 14. The
Board then found that evidence \"essentially cumulative\" as well as not
material because it showed only \"evidence of a current psychiatric
disorder\", and not \"that the current disorder was caused by his period
of service\". Ibid. The Board thus did not reopen the claim. The
appellant contends that the Board selected too brief a time period for
examining whether new evidence had been submitted and should \"go back
to July 17, 1979\[,\] to find a final decision on the nervous
disorder.\" Br. at 17-18. Although the Secretary contends that the
evidence submitted since the last denial on the merits should be
considered, he does not identify which is that VA decision in this case.

a\. New and material evidence: The specified basis for the RO\'s
September 1990 denial of reopening was the lack of evidence showing a
\"service\[-\]incurred neuropsychiatric disorder\". R. at 618. Applying
the Court\'s holdings in part II.B.2. and 3., above, the Court concludes
that the last final disallowance of that claim was the September 1990 RO
decision denying reopening, and the Court must thus review, as the newly
presented evidence, the evidence submitted since that decision in order
to determine whether that evidence is new and material evidence to
reopen the claim. Considering that newly presented evidence, the Court
concludes that there is no new and material evidence to reopen the
claim.

As pointed out in part II.B.2., above, in order to make that
determination of newness, the adjudicator must consider all of the
evidence previously presented, and to make the determination as to
whether \"new\" evidence is probative, the adjudicator must consider the
specified bases for the last final disallowance of the claim. Therefore,
in order to satisfy the first two questions of the Manio step-one
process for determining whether to reopen this claim, newly presented
evidence that is probative is required, that is, evidence tending to
show that the neuropsychiatric condition derives from a disease, within
the meaning of the law, that is connected to the veteran\'s service. The
lack of such evidence was the RO\'s basis for its September 1990 denial
of the claim and is thus the \"issue at hand\" to which \"new\" evidence
must be directed in order for the disallowed claim to be reopened. The
evidence submitted since September 1990 consists of the May 1990 VA
diagnosis of \"dysthymic disorder\" (R. at 604), which constitutes
competent medical evidence of a current disorder \-- one of the
requisite elements of a claim for service connection \-- and is newly
presented evidence that is not cumulative of evidence presented before
that decision. It is therefore \"new\".

However, on its face, that evidence is not probative of the issue at
hand, the element relating to a nexus between the veteran\'s service and
his current depressive condition, the absence of which was a basis for
the last (September 1990) final disallowance of this claim. See Struck,
Blackburn, and Cox, all supra; see also Heuer v. Brown, 7 Vet.App. 379,
386-87 (1995) (holding that there was no new and material evidence to
reopen claim where newly presented evidence was not \"accompanied by any
medical evidence indicating a nexus to service\"); Caluza, 7 Vet.App. at
506 (requisite elements of service-connection claim include medical
evidence of nexus between in-service injury or disease and current
disability); Moray v. Brown, 5 Vet.App. 211, 214 (1993) (lay assertions
of medical causation cannot suffice to reopen a claim under § 5108).
Because Dr. Orea\'s December 1983 statement (the veteran has a
\"\[c\]hronic \[d\]epressive condition, which \[Dr. Orea believes\] is
service connected\", R. at 298), which is probative on the nexus issue,
was previously before the RO at the time of its September 1990 final
decision denying reopening (R. at 618-19), and because the Court\'s
holding today limits the determination as to what evidence is newly
presented to that presented since the last disallowance on any basis,
that statement cannot be newly presented evidence for purposes of the
current decision on reopening the claim. (Had the Court interpreted the
term \"disallowed\" as permitting newly presented evidence to include
that presented since the last merits decision, Dr. Orea\'s statement
(presuming its credibility under Justus, supra, for purposes of
determining whether there is new and material evidence to reopen a
claim) would have been new and material, because it would have been
probative and would have presented a reasonable possibility, when
considered with the rest of the evidence of record, of changing the
merits outcome.) There being no newly presented evidence that is
probative of the nexus issue, this is not a case where the Court
considers whether newly submitted, probative evidence combined with all
evidence submitted before the last disallowance of the claim, would
present a reasonable possibility of changing the merits outcome such
that the claim would be reopened. That issue is not reached on the facts
of this case. Accordingly, the Board\'s decision not to reopen this
claim was not in error.

b\. Notice of September 1990 RO decision: The appellant contends that he
was never notified of the September 1990 RO decision or of his right to
appeal it, and that thus that decision is still open. Br. at 19. If the
appellant is correct, then this would mean, as discussed in part
II.B.4.a., above, that the last final disallowance as to the
neuropsychiatric claim would have been the July 1979 Board decision,
that Dr. Orea\'s 1983 statement would thus constitute new and material
evidence to reopen the claim, and that a remand for adjudication on the
merits would be required. See Masors and Jones, both supra; Hauck v.
Brown, 6 Vet.App. 518, 519 (1994) (per curiam order) (holding that where
it is conceded that appellant \"never received notification of any
denial . . . , the one-year period within which to file an NOD, which
commences with \`the date of mailing of notice of the result of initial
review or determination,\' did not begin to run\" (quoting 38 U.S.C. §
7105(b)(1))). This Court has held that there is a \"presumption of
regularity\", as applied to the mailing of BVA decisions pursuant to 38
U.S.C. § 7104(e), that \"\`the Secretary and the BVA properly discharged
their official duties by mailing a copy of a BVA decision to the
claimant and \[to\] the claimant\'s representative, if any, on the date
the decision is issued\', and that that presumption can be overcome only
by \`clear evidence to the contrary\'\". Davis v. Brown, 7 Vet.App. 298,
300 (1994) (quoting Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992)
(Ashley II)); see Morris v. Sullivan, 897 F.2d 553, 560 (D.C. Cir. 1990)
(quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926),
to the effect that \"\[t\]he presumption of regularity supports the
official acts of public officers and, in the absence of clear evidence
to the contrary, courts presume that they have properly discharged their
official duties\"); cf. Chute v. Derwinski, 1 Vet.App. 352, 353 (1991)
(per curiam order) (presumption of regularity rebutted where veteran
claimed not to have received BVA decision and provided evidence of
having made inquiries to VA after decision was mailed, and VA provided
no evidence of having mailed decision).

That presumption applies equally to VA\'s mailing of RO decisions. See
Mason (Sangernetta) v. Brown, 8 Vet.App. 44, 53-55 (1995); Mindenhall v.
Brown, 7 Vet.App. 271, 274 (1994). Thus, the presumption applies in this
case to the mailing of notice of the September 1990 RO decision to the
veteran at his last known address of record (there is no indication in
the record on appeal that the veteran had a representative at that
time). Cf. Thompson v. Brown, 8 Vet.App. 169, 179 (1995) (holding that,
absent evidence that claimant took affirmative steps after filing VA
Form 1-9 (Substantive Appeal to BVA) to change address he provided on
it, BVA was entitled to rely on that address as being his \"last known
address\" under 38 U.S.C. § 7104(e) and to use it for purposes of
mailing copy of its decision), reconsidered and reaff\'d, \_\_ Vet.App.
\_\_\_ (June 11, 1996) (per curiam order).

An appellant\'s mere assertion of nonreceipt of notice of an RO
decision, such as the appellant\'s assertion in this case that he had
received no notice of the September 1990 RO decision, is not \"clear
evidence\" to rebut that presumption of proper mailing. See Mindenhall,
supra (mere statement of nonreceipt is \"not the type of \`clear
evidence to the contrary\' which is sufficient to rebut the presumption
of regularity of the notice\" (quoting Ashley v. Derwinski, 2 Vet.App.
62, 64 (1992), reaff\'d by Ashley II, supra)); cf. Thompson, 8 Vet.App.
at 178-79 (presumption that Board mailed requisite notices to veteran\'s
\"last known address\" under 38 U.S.C. § 7104(e) rebutted by clear
evidence that veteran claimed not to have received BVA decision; that he
provided supporting evidence in form of letters and an irregular process
of communication between veteran and RO; and that Board did not mail
requisite notices to two addresses used); Chute, supra. Because the
appellant has not rebutted the presumption that notice of the September
1990 RO decision was properly mailed, that decision became final. See
Falzone v. Brown, 8 Vet.App. 398, 402 (1995) (where appellant had not
rebutted presumption that notice of RO decision was properly mailed,
that decision became final). Having held in part II.B.4.a., above, that
there was no new and material evidence to reopen that final RO decision,
the Board decision to that same effect will be affirmed as to this
claim. See Heuer, supra.

5\. Back disorder. As to the back claim, in its August 1993 decision,
the Board determined that the evidence submitted since the January 1990
RO letter was not new and material. R. at 13.

Applying the Court\'s holdings in part II.B.2. and 3., above, the Court
concludes that the BVA\'s September 1978 merits decision was not the
last final disallowance of that claim; and that there currently is no
new and material evidence regardless of whether the last final
disallowance of that claim was the BVA\'s October 1985 decision not to
reopen the back claim or the RO\'s January 1990 letter (which refused to
consider the request to reopen). That is because the evidence submitted
since either date is not probative of the issue at hand, the essential
element of the claim that was the basis for the last final disallowance
of the claim \-- whether the current condition is connected to service.
See Struck, Blackburn, and Cox, all supra. The BVA had indicated in
October 1985 that there was no evidence of a nexus between the
veteran\'s chronic back disorder and service. R. at 419. The absence of
nexus evidence was the specified basis for the last final disallowance
of this claim and must be remedied by the newly presented evidence in
order for it to be found to be probative. It was not. Because Dr.
Thompson\'s February 1983 statement (\"there seems to be a causal
relationship suggesting that \[the veteran\'s\] low back condition had
its origin in the jeep accident of 1957\", R. at 284), which is
probative on the nexus issue, was before VA at the time of the October
1985 final Board decision (R. at 419) and the newly presented evidence
is limited to that presented since the last disallowance on any basis,
that statement is not newly presented evidence for purposes of the
current decision on reopening that claim and thus cannot be the
probative \"new\" evidence needed to reopen. (Had the Court interpreted
the term \"disallowance\" as permitting newly presented evidence to
include that presented since the last merits decision, that statement
(presuming its credibility under Justus, supra) would have been new and
material, because it would have been probative and would have presented
a reasonable possibility, when considered with the rest of the evidence
of record, of changing the merits outcome.) There being no newly
presented evidence that is probative as to the nexus issue, the
reasonable-possibility question does not arise, and the Board\'s
decision not to reopen this claim will also be affirmed.

6\. Prior final decisions not reviewable on this appeal. Whether the
neuropsychiatric and back claims should have been reopened on prior
occasions based on Dr. Orea\'s and Dr. Thompson\'s statements,
respectively, are issues not now before the Court. Whether either issue
can properly be raised as a claim of clear and unmistakable error (CUE)
in a prior RO decision under 38 C.F.R. § 3.105(a) is for another day.
See Smith (William) v. Brown, 35 F.3d 1516 (Fed. Cir. 1994); Russell v.
Principi, 3 Vet.App. 310, 313 (1992) (en banc) (valid CUE claim requires
assertion of \"more than a disagreement as to how the facts were weighed
or evaluated\" in prior adjudication of claim); compare Caffrey v.
Brown, 6 Vet.App. 377, 380-84 (1994) (VA\'s breach of duty to assist in
failing to secure available relevant evidence prior to disputed
adjudication held no basis for collateral attack on prior adjudication
via CUE claim even though that relevant evidence had later led to award
of service connection), with Mason, 8 Vet.App. at 52-53 (remanding to
Board claim to reopen because of Board\'s failure to provide adequate
statement of reasons or bases as to why prior RO decision\'s erroneous
denial of \"existence of evidence\" was not CUE in terms of whether that
evidence, if considered, would manifestly change the outcome on the
merits). But see Caffrey, 6 Vet.App. at 384-88 (Steinberg, J.,
concurring in part and dissenting in part).

III\. Conclusion

Upon consideration of the record and the submissions of the parties, the
Court affirms in part the August 1993 BVA decision as to the denial of
reopening of the service-connection claims for neuropsychiatric and back
disorders; the Court vacates the decision in part and remands the matter
of an increased (compensable) rating for left-hand scar residuals for
expeditious further development and readjudication, on the basis of all
applicable law and regulation, and issuance of a readjudicated decision
supported by an adequate statement of reasons or bases, see 38 U.S.C. §§
5107(a), (b), 7104(a), (d)(1), 7261; 38 C.F.R. § 4.73; Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991) \-- all consistent with this
opinion and in accordance with section 302 of the Veterans\' Benefits
Improvements Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide
for \"expeditious treatment\" for claims \"remanded\" by BVA or Court).
See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995). \"On remand, the
\[claimant\] will be free to submit additional evidence and argument\"
on the remanded claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).
The Court denies the Secretary\'s motion for summary affirmance. A final
decision by the Board following the remand herein ordered as to the
rating-increase claim will constitute a new decision which, if adverse,
may be appealed to this Court only upon the filing of a new Notice of
Appeal with the Court not later than 120 days after the date on which
notice of the new Board final decision is mailed to the appellant.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

NEBEKER, Chief Judge, concurring: I concur in the result, but I am not
sanguine that the part of the opinion addressing new and material
evidence will aid individuals dealing with reopening in the task of
sorting through the myriad efforts by older veterans to resurrect their
claims. My concurrence is based on what I believe the reasoning of the
Court should be in this regard, which is:

A reopening analysis requires that the currently submitted evidence be
presumed credible for purposes of deciding whether it is new and
material, and, if so, whether it is possibly productive of a different
result. Combining the two questions of materiality and possible
different result, as the Court\'s opinion does (opinion at 14), is a
legal impossibility. New evidence can be material, but of such de
minimis weight that it could not possibly produce a different result.

This currently presented evidence must be viewed in light of all
previously submitted evidence, i.e., that which was considered in a
final denial on the merits and any evidence submitted thereafter in an
unsuccessful earlier effort at reopening. The latter evidence is to be
presumed truthful for the reopening inquiry, but, as with the current
evidence, is then subject to a determination of relevance again, and, if
so, of its credibility if the former disposition is reviewed on
reopening.