BVA9505644 DOCKET NO. 93-11 866 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for residuals of a back injury. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Mark D. Chestnutt, Associate Counsel INTRODUCTION The veteran served on active duty from November 1943 to February 1946. The New York, New York, Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a back condition by decision in November 1988. A timely appeal of that decision was not received. In June 1989, the RO held that new and material evidence to reopen the veteran's claim had not been submitted. He has subsequently attempted to reopen his claim and appeals from a January 1992 decision of the RO which again determined that new and material evidence to reopen the claim had not been submitted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was treated in 1944 for a back injury, that he currently has residuals from the injury, and that service connection is therefore warranted. 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 not been submitted sufficient to reopen a claim of entitlement to service connection for residuals of a back injury. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. Service connection for a back condition was denied by the RO in November 1988. 3. Evidence received subsequent to the November 1988 rating decision either has been previously submitted or does not aid in demonstrating that the veteran incurred a chronic inservice back injury or post-service continuity of symptomatology. CONCLUSION OF LAW The November 1988 rating decision denying entitlement to service connection for a back condition is final; no new and material evidence has been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. The veteran claims that he injured his back in a 1944 truck accident and that he currently has residuals from that injury. By rating decision in November 1988, service connection for a back condition was denied on the basis that evidence of continuity of the claimed disability from service separation to the present had not been presented. The record did not include most of the service medical records since they were presumably destroyed by fire and were therefore unavailable for review. The report of a September 1988 VA examination indicated that the veteran had spinal stenosis and degenerative changes of the lumbosacral spine; the veteran gave a history of sustaining a back injury, for which he had not been treated at the time, in a military truck accident. In September 1988, Raymond P. Aldrich, M.D., advised that he had treated the veteran from 1979 to 1981 for several problems, including low back pain. In April 1986, a CT scan reportedly disclosed spinal stenosis. Dr. Aldrich added that he knew nothing about the injuries the veteran said occurred in service. New and material evidence has been defined as evidence which has not been previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration. It must be neither cumulative nor redundant and by itself or in connection with evidence previously assembled be so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Since the veteran did not timely appeal the November 1988 rating decision, it is final and will not be reopened unless new and material evidence has been presented. 38 U.S.C.A. §§ 5108, 7105. VA outpatient records dated from November 1987 to January 1989, obtained subsequent to the November 1988 rating decision, show complaints of back pain. In November 1987, the veteran gave a history of episodic low back pain since 1979. Subsequently, the veteran named several doctors who had purportedly treated him for back pain post-service; the RO then requested that the veteran provide their addresses. The RO also requested that the service department produce any additional service medical records or Surgeon General's Office records it might have. No additional private medical records were obtained and attempts to secure service medical records and information from records compiled by the Surgeon General"s Office were unsuccessful. In July 1990, the veteran submitted copies of envelopes which reportedly contained letters he wrote to his sister while hospitalized after sustaining a back injury in service. The veteran indicated that he would not submit copies of the letters themselves. In July 1990, the veteran submitted copies of envelopes bearing April to May 1944 postmarks and the return address of a military hospital at Ft. Belvoir, Virginia. Although this is new evidence which may indicate that the veteran was a patient in a hospital for about two months during service, it is not material because a diagnosis is not indicated. Further, a National Personnel Records Center statement, received by the RO in January 1992 prior to its most recent rating decision, indicates that the April to June 1944 Ft. Belvoir morning reports for the veteran's battalion are negative for reference to the veteran's absence or hospital admission. Again, although such evidence is new, it is not material because it is not probative to the question at issue. The VA outpatient records added to the record are also not material as they only confirm that the veteran had a low back condition and do not serve to establish that this condition was in any way related to his period of military service. The evidence presented since the November 1988 rating decision is new but not material, and thus the veteran's claim may not be reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Accordingly, the veteran's appeal is denied. Finally, the Board notes that although the veteran claims service connection for a back condition already has been granted, rated at 0%, such an award of service connection is not shown by the record. ORDER New and material evidence not having been submitted sufficient to reopen a claim of entitlement to service connection for residuals of a back injury, the appeal is denied. WAYNE M. BRAEUER 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. 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 which 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.