BVA Case 10-0997: Back

Reed ,appeals that part of the December 1,2009, Board of Veterans'Appeals (Board)decision that determined that new and material evidence had not been submitted to reopen his claims for service connection for a left knee disorder and a low back disorder.

Because the Board erred in finding that no new and material evidence was offered to reopen the claims,the Court will reverse the decision and remand the matters for further proceedings consistent with this decision.

In the December 1,2009,decision on appeal,the Board denied reopening the appellant's claims for entitlement to service connection for his left knee and back disorders.

The Board noted that the May 1974 rating decision was final and that, since that decision, new evidence had been submitted.

ANALYSIS In his brief before this Court,the appellant argues that the Board applied the wrong definition of what constitutes new and material evidence sufficient to warrant reopening his claims.

Alternatively,he argues that,irrespective of which definition of new and material evidence was used,the Board erred in not reopening the claims.

Specifically,the Secretary points to the Board's inconsistent statements noting that a December 2007 VA physician's letter provided a positive nexus for the back claim but nevertheless finding that the opinion did not 'substantiate the Veteran's claim because it does not provide evidence of a current back disability.

The Secretary also points out that the Board noted that the 1974 rating decision denied the appellant's left knee claim on the basis that there was no current disability but the Board denied reopening because there was no evidence of a nexus to service.