BVA9507128 DOCKET NO. 93-09 336 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence sufficient to reopen the appellant's claim for service connection for a left knee disorder has been submitted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from July 1943 to November 1945. This appeal arises from a July 1992 Department of Veterans Affairs Chicago, Illinois (VARO) rating decision, which continued the denial of the appellant's claim for service connection of a left knee disorder on the basis that new and material evidence sufficient to warrant reopening of the appellant's claim had not been submitted. VARO denied the appellant's original claim for service connection for a left knee disorder in a January 1953 rating decision. The appellant was notified of that decision and of his appellate rights by letter dated in January 1953. The appellant did not appeal that decision within one year. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he has a left knee disorder that did not exist at the time of his service entrance and was acquired as the result of an injury incurred during service. Implicit in the appellant's claim is the contention that, since VARO's January 1953 decision, he has submitted new and material evidence, which is sufficient to allow the Board to reopen and review his claim of service connection for a left knee disorder. 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 sufficient to warrant reopening of the appellant's claim for service connection for a left knee disorder has not been submitted. FINDINGS OF FACT 1. The appellant served on active duty from July 1943 to November 1945. 2. In January 1953, a VARO rating decision denied the appellant service connection for a left knee disability; following proper notice, the appellant did not file a timely appeal. 3. Evidence submitted by the appellant in support of his claim since VARO's January 1953 decision includes duplicate copies of the appellant's service medical treatment records and sworn testimony of the appellant at his December 1993 hearing on appeal. 4. Evidence submitted by the appellant in support of his claim since VARO's January 1953 decision is cumulative, and, when viewed in the context of the earlier evidence of record, does not raise a reasonable possibility that the prior outcome of the claim would change. CONCLUSION OF LAW The January 1953 Board decision is final as to the denial of service connection for a left knee disorder; evidence received in support of the appellant's July 1992 request to reopen his claim is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking service connection for a left knee disorder. As was indicated in the Introduction above, the appellant's claim for service connection for a left knee disorder was the subject of an unfavorable VARO decision in January 1953. The appellant was duly notified of that decision and of his appellate rights by letter, but he did not file an appeal. The decision of VARO is considered to be final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994). Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals, the VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993); and Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means evidence which is not merely cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, leads to a reasonable possibility that the new evidence, when viewed in the context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). At the time of VARO's January 1953 denial of the appellant's claim for service connection for a left knee disorder, evidence of record included the appellant's service medical treatment records. Evidence submitted subsequent to VARO's January 1953 rating decision consists of duplicate copies of service medical treatment entries and sworn testimony of the appellant at his December 1993 hearing on appeal. The copies of service medical treatment entries are duplicative of evidence that was of record at the time of the VARO's January 1953 denial of the appellant's claim, and are not "new". Further, the copies are not "material" in that they do not shed any light on the claimed service-related left knee disorder. This recently submitted evidence is merely cumulative of evidence of record previously, and it does not tend to suggest that the appellant incurred a chronic left knee disorder as the result of any incident he experienced during service. The hearing testimony and additional statements by the appellant, relating his left knee disorder to an injury he received during service, are only redundant of statements previously of record, and as such, they are cumulative because they essentially reiterate earlier assertions. See Reid v. Derwinski, 2 Vet.App. 312, 315 (1992). His additional statements are also not material, as, being a layman, he has no competence to render a medical opinion regarding the etiology of his condition. See Moray v. Brown, 5 Vet.App. 211 (1993); See also, Espiritu v. Derwinski, 2 Vet.App. 609 (1992). As new and material evidence has not been submitted, the claim is not reopened, and the January 1953 VARO rating decision remains final. Further analysis of this case must cease. Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a left knee disorder having not been submitted, the appeal is denied. KENNETH R. ANDREWS, JR. 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.