Citation Nr: 0007473 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-18 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an upper body disability to include arthritis. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a back condition. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) in the U.S. Army Reserves from January 6, 1983, to February 7, 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that determined that new and material evidence had not been submitted to reopen claims for service connection for an upper body disability to include arthritis and for a back disorder. The appellant requested a hearing before a member of the Board in Washington D.C. A hearing was scheduled in February 1999. However, in February 1999, a statement was received from the appellant which indicated that he was unable to attend the hearing. The case was previously before the Board in May 1999 when it was remanded for readjudication. The requested development was completed by means of a September 1999 supplemental statement of the case. The appellant submitted additional evidence to the Board subsequent to the issuance of the September 1999 supplemental statement of the case. This evidence consists of lay statements from the appellant; copies of November 1998 and April 1999 doctor's statements; a VA form 9, dated October 28, 1998; an October 1988 written statement from the appellant's then representative; a copy of a page from an SSA decision; and service medical records. All of this evidence was before the RO in November 1999. In March 2000, the appellant submitted a copy of a magnetic resonance imagery (MRI) report from January 2000. He has waived initial consideration of this evidence by the RO. Therefore, the case need not be returned to the RO for consideration and the issuance of a supplemental statement of the case. 38 C.F.R. § 20.1304(c) (1999). FINDINGS OF FACT 1. In May 1996, the RO found that a claim for service connection for an upper body disability to include arthritis was not well grounded. The RO notified the appellant of its decision and of his appellate rights. He did not appeal. 2. Evidence has not been presented or secured since the May 1996 RO decision that is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for an upper body disability to include arthritis. 3. The Board found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a back disorder in February 1994. 4. The appellant appealed to Board's decision to the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court), which affirmed the Board's denial in an March 1995 memorandum decision. 5. Evidence has not been presented or secured since the February 1994 Board decision which is so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The May 1996 RO decision that found that a claim for service connection for an upper body disability to include arthritis was not well grounded is final. 38 U.S.C.A. § 7105(b)(1), (d)(3) (West 1991); 38 C.F.R. §§ 20.200, 20.302(b), 20.1103 (1999). 2. Evidence received since the May 1996 RO decision that found that a claim for service connection for an upper body disability to include arthritis was not well grounded is not new and material, and the appellant's claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The February 1994 Board decision denying a petition to reopen a claim of entitlement to service connection for a back disorder is final. 38 U.S.C.A. § 7103(a) (West Supp. 1999); 38 C.F.R. § 20.1100 (1999). 4. Evidence received since the February 1994 Board decision denying a petition to reopen a claim of entitlement to service connection for a back disorder is not new and material, and the appellant's claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The appellant originally claimed entitlement to service connection for "back pain behind neck, left upper back pain behind neck and between left shoulder and spine area" in February 1986. The RO denied entitlement to service connection for back and left shoulder conditions May 1986, and the appellant did not appeal. The appellant thereafter sought to reopen the claim. In a rating decision issued in September 1987, the RO found that new and material evidence sufficient to reopen a claim for service connection for a back disorder had not been submitted. The appellant appealed the RO's decision to the Board. In December 1988, the Board found that the appellant had not submitted new and material evidence to reopen his claim for service connection for a back disorder. In September 1989, the appellant requested that his claim for service connection for a neck and shoulder injury be reopened. The RO denied the claim in April 1990, and the appellant appealed to the Board. In February 1991, the RO also denied entitlement to service connection for an upper body disability, including arthritis. The appellant again appealed to the Board. A Board decision in February 1994 denied service connection for, inter alia, an upper body disability to include arthritis and determined that new and material evidence had not been submitted to reopen a claim for service connection for a back disability. The appellant appealed this decision to the Court. The Court, in a memorandum decision dated in March 1995, affirmed the Board's decision that new and material evidence had not been submitted to reopen a claim for service connection for a back disorder. The Court also determined, inter alia, that the claim for an upper body disability to include arthritis was not well grounded. The Court vacated the Board decision concerning this claim and remanded the case to the Board to vacate any RO decisions on this claim. The Board, in a decision in September 1995, vacated the RO's February 1991 rating decision in accordance with the Court's order and dismissed the appeal for, inter alia, the claim for service connection for an upper body disability to include arthritis. A rating decision in May 1996 denied service connection on a de novo basis for an upper body disability to include arthritis, finding that the claim was not well grounded. The RO correctly noted that the Court memorandum decision of March 1995 had ordered the Board to vacate the RO's previous rating decision on this issue and that this was accomplished by the Board decision of September 1995. The appellant was advised of his appellate rights by letter dated May 17, 1996, and did not file a timely appeal. Evidence of record at the time of the February 1994 Board decision (that evidence which was considered by the Court in March 1995) included the following: (1) Service personnel records, including the appellant's DD Form 214, which disclose that, during his basic training, he was counseled about his attitude and lack of motivation and self-discipline. It was noted that he knew that he was a slow learner and he wanted out of the military. The platoon sergeant recommended his separation from service for poor performance of duties and an inability to adapt to military standards. The platoon sergeant noted the appellant's refusal to learn and his desire to go home. On January 31, 1986, the appellant certified his acceptance of a separation from service under the United States Army's Trainee Discharge Program and that he did not desire a separation physical examination. His separation from service was accomplished on February 7, 1983. (2) Service medical records, showing that on January 22, 1983, the appellant complained of left shoulder pain and stiffness for four days secondary to trauma. The assessment was mild contusion of the left shoulder. On January 24, 1983, the appellant complained of pain in his left shoulder for five days while doing physical training. The assessment was mild contusion of the left shoulder. Later that day, the appellant was seen at a physical therapy service with complaints of pain in the left dorsal shoulder. The assessment was myofascitis of the left dorsal shoulder girdle. On January 26, 1983, the appellant complained of pain in the left shoulder blade, upper back, lower neck and low back. He denied any recent trauma. The diagnostic impression was muscle strain. (3) A March 1986 VA report of examination, including x-rays of the cervical spine and left shoulder which were negative. The diagnosis was mild muscle strain of the cervical and lumbar spine and left shoulder, mild. (4) Private treatment records from the Jackson-Hinds Comprehensive Health Center, dated from 1983 to 1987. In July 1987, the appellant complained of left-sided posterior shoulder pain and nuchal pain since 1986 when he began lifting heavy objects. Pertinent diagnoses included musculoskeletal pain. In September 1987, the appellant complained of back pain secondary to lifting 50-pound sacks on his job. The impression was upper back pain. (5) A November 1990 written statement from Paul D. VanLandingham, M.D., who reported that the appellant had complained of constant pain in his neck, upper back and shoulders, which he believed to be a reaction to an immunization shot he received in the military in 1983. The impression was chronic pain in the neck, upper back and shoulders, apparently muscular, fibromyositis. (6) A January 1991 statement from Dr. L.W. Dodson, who reported that he had seen the appellant twice in May 1986 when he complained of neck and left shoulder pain. The diagnoses were pain in the thoracic spine and nerve root irritation. (7) Numerous statements from the appellant, including those presented at a personal hearing at the RO in January 1992. The appellant maintained that his neck, back and left shoulder conditions were a direct result of an immunization shot he had received in basic training and that he had upper body problems which had started in service. The neck, back and left shoulder had continuously bothered him since military service. (8) An August 1992 VA treatment record, showing that the appellant was seen for complaints of pain in the back and shoulders and stiffness of the neck. Pertinent diagnoses included muscle spasm. (9) An office note from Roy M. Main, M.D., showing that he treated the appellant from July to September 1987. The appellant was to stay at bed rest for two weeks and take his medication in September 1987. (10) A health insurance claim form showing that the appellant underwent x-rays of the thoracic spine and spinal manipulation at Brown Chiropractic Center in May 1986. The diagnoses were pain in the thoracic spine and nerve root irritation/degeneration. (11) A January 1989 document from the Mississippi Employment Security Commission, indicating that the appellant had been seen for musculoskeletal strain and was advised to avoid heavy lifting. (12) A written statement from a private physician from the Jackson-Hinds Comprehensive Health Center, indicating that he treated the appellant in September 1992, and that he should be excused from work. (13) A July 1987 written statement from Dr. Main indicating that he was seeing the appellant for musculoskeletal pain related to heavy lifting. (14) An October 1988 statement from the appellant's then representative. Evidence received subsequent to the February 1994 Board decision, but prior to the May 1996 RO decision, included the following: (15) Lay statements from the appellant to the effect that he incurred back, neck and shoulder disorders during active service as the result of an immunization shot. (16) Magnetic resonance imaging (MRI) of the appellant's cervical spine dated in September 1995, showing disc herniations at C4-C5 on the right side and at C5-C6 centrally and to the left. (17) A September 1994 physician's work status report from William Grantham, M.D., indicating that the appellant suffered from persistent cervical/thoracic strain. (18) Duplicate copies of the following evidence: the health insurance claim form showing that the appellant underwent x- rays of the thoracic spine and spinal manipulation at Brown Chiropractic Center in May 1986, with diagnoses of pain in the thoracic spine and nerve root irritation/degeneration; the office note from Roy M. Main, M.D., showing that he treated the appellant from July to September 1987; DD Form 214; service medical records; and the August 1992 VA treatment record. (19) An April 1994 statement from W.T. Crowell, M.D., indicating that he treated the appellant from 1987 to 1993 for lumbar and cervical strain. It was noted that the appellant did not have this condition prior to 1986 by history. (20) A June 1995 written statement from William C. Warner. M.D., indicating that he most recently treated the appellant in March 1995 for cervical sprain and C4-C5 neuropathy. (21) A June 1995 treatment record showing that the appellant sought treatment at The University Hospital and Clinics Emergency Department for an unlisted problem. He was to follow up at the orthopedics clinic. Subsequent to the May 1996 RO rating decision, the following evidence was received at the RO: (22) The appellant's lay statements to the effect that he incurred back, neck and shoulder disorders during active service as the result of an immunization shot. (23) Duplicate copies of the following evidence: service medical records; the April 1994 written statement from Dr. Crowell; the October 1988 statement from the appellant's then representative; the September 1995 MRI; DD Form 214; and the August 1992 VA treatment record. (24) A page from a Social Security Administration (SSA) decision indicating that the appellant was disabled as of September 30, 1994, due to, inter alia, a herniated nucleus pulposus at C4-C5 and C5-C6. (25) A November 1996 statement from Dr. McGuire indicating that the appellant had been unable to work since July 1993 due to shoulder and neck pain. (26) An October 1997 statement from Dr. Williams indicating that the appellant had C4-C6 disc degenerations as early as May 27, 1997. (27) May 1997 prescription instructions, for a medication for muscle pain. (28) A November 1998 written statement from Brian Williams, M.D., which states, in pertinent part: I first saw [the appellant] on 9/15/97 and have seen him a few times since then. . . The problem that I am addressing in this letter is a neck injury which causes him mild to moderate pain. . . he had an MRI of his cervical spine at St. Dominic's Memorial Hospital on 9/30/94, which showed disc herniations at C4-5 and C5-6 centrally and to the left. . . [The appellant] states that his pain all began while he was in military service. He specifically brings up an incident of a time when he received an injection while in the military. On this same day, there was a time when he had to run and lift a large duffel bag and throw it over his head. He believes that this is when the pain started. I have attempted to obtain his military medical records, however, the personnel record center in St. Louis, Missouri informed me that his records were unavailable. In summary, [the appellant] does have objective evidence of a lesion which can account for his disability and it is possible that this was obtained during military service. However, I cannot prove or disprove when the lesions occurred. (29) An April 1999 written statement from Dr. Main, in which he reported that the appellant was treated at the Jackson Hinds Comprehensive Health Care Center for a shoulder injury in October 1987. Dr. Main further stated that the appellant "originally injured his shoulder in the Army at Fort Dix, New Jersey. This is documented as occurring 1/24/1983. This injury caused him discomfort and pain during manual labor with result of loss of work. I believe his health was directly related to this injury and he states he is still in some pain." (30) An MRI report of the cervical spine done on January 31, 2000, at St. Dominic-Jackson Memorial Hospital and showing cervical spondylosis from C3-4 through C6-7. II. Legal analysis A. General The term "veteran" means "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 1991). Compensation is payable to a veteran "[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. . . ." 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be established for a disability that is diagnosed after separation from active service "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service." 38 C.F.R. § 3.303(d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. Where a veteran had ninety (90) days or more of war or peacetime service after December 31, 1946, and arthritis manifests to a compensable degree within one year thereafter, it is rebuttably presumed to be of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1110, 1112, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Concerning entitlement to service connection on a presumptive basis, the only "veterans" entitled to presumptive service connection are those who either (1) served on active duty; (2) were disabled or died from disease or injury incurred in or aggravated in line of duty during ACDUTRA; or (3) were disabled or died from an injury incurred in or aggravated in line of duty during inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991); see also Paulson v. Brown, 7 Vet. App. 466, 469 (1995). Regardless, as the appellant did not have a period of ACDUTRA of 90 days or more, he is not entitled to the application of the provisions of presumptive service connection. The term, active military, naval, or air service, includes active duty or any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101 (22), (24) (West 1991); 38 C.F.R. § 3.6(a) (1999). See generally Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active duty for training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101 (22) (West 1991); 38 C.F.R. § 3.6(c) (1999). The record on appeal reflects that the appellant had one period of active duty for training from January 6, 1983, to February 7, 1983. The determinative question, therefore, as to whether this appellant served in the "active military, naval, or air service" is whether during that period of active duty for training he was disabled from a disease or injury incurred in or aggravated in line of duty. B. Whether new and material evidence has been submitted to reopen a claim for service connection for an upper body disability to include arthritis A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the appellant is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. The appellant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if an NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (1999). By letter dated May 17, 1996, the RO notified the appellant of the May 1996 rating decision finding that the claim for service connection for an upper body disability including arthritis was not well grounded. The appellant was also advised of his appellate rights, and did not appeal. Therefore, the RO's decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302 (1999). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection 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) (1999); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When presented with a claim to reopen a previously finally denied claim, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence submitted by the claimant is new and material. Second, if new and material evidence has been presented, it must be determined, immediately upon reopening the claim, whether the reopened claim is well grounded pursuant to 38 U.S.C. § 5107(a) based upon all the evidence and presuming its credibility. The Court concluded in Elkins that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the "reasonable-possibility-of-a-change-in- outcome" test established by Colvin v. Derwinski, 1 Vet. App. 171 (1991). There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the reopened claim is well grounded, VA may evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. The evidence received subsequent to May 1996 is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). At the time of the May 1996 RO rating decision, there was no evidence linking any upper body disability to active service. Therefore, in order to be material, there would have to be competent evidence showing that the appellant's upper body disability, i.e., a shoulder disorder and/or herniations at C4-5 and C5-6, had its onset during active service or was associated with an inservice disease or injury. Any "new" evidence would have to bear directly and substantially upon this matter and be so significant that it must be considered in order to fairly decide the merits of the claim. To the extent that the appellant contends that he has an upper body disorder that was incurred during service (item 22), this evidence is not new. His statements are essentially a repetition of his previous assertions, and are basically cumulative and not new. See Paller v. Principi, 3 Vet. App. 535, 538 (1992) (distinguishing corroborative evidence from cumulative evidence). Moreover, the lay statements concerning the onset of any such condition are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). The evidence listed in item 23 was of record at the time of the May 1996 rating decision finding that the claim for service connection for an upper body disability was not well grounded, and is therefore not new. To the extent that the medical records (items 24, 25, 25, 28, 29, and 30) show treatment for and/or diagnoses of an upper body disorder, i.e., a shoulder disorder and/or herniations at C4-5 and C5-6, many years after service, they are cumulative and not new. These records are also not material, or so significant that they must be considered in order to fairly decide the merits of the claim. Dr. Main's April 1999 statement (item 29) that the appellant originally injured his shoulder during service and that "his health was directly related to this injury and he states he is still in some pain" does not in any way provide a medical linkage of any current shoulder disability with the appellant's military service. (emphasis added). The Board is also cognizant of the November 1998 statement from Dr. Williams (item 28) that while it was possible that the appellant's disc herniations at C4-5 and C5-6 were obtained during military service, he could not "prove or disprove when the lesions occurred." When a medical professional is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet. App. 237, 241. Accordingly, the Board finds that this opinion, while new, is not material, or so significant that it must be considered in order to fairly decide the merits of the claim. Medical records and lay statements, including from the appellant, that do not mention an upper body disability, even if new, are not material. This evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. The fact that the appellant is presently or was impaired due to other medical problems is not a matter in dispute. The May 1997 prescription instructions (item 27) showing that the appellant takes medication for muscle pain, although new, is also not material, as is does not pertain to the onset of an upper body disorder during active service. Accordingly, the Board finds that the evidence received subsequent to May 1996 is not new and material and does not serve to reopen the appellant's claim for service connection for an upper body disability to include arthritis. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). C. Whether new and material evidence has been submitted to reopen a claim for service connection for a back condition Decisions on appeal to the Secretary are made by the Board and are final unless reconsideration is ordered by the Chairman. 38 U.S.C.A. §§ 7103(a) and 7104(a) (West Supp. 1999); 38 C.F.R. § 20.1100 (1999). When a claim is disallowed by the Board, the claim may not be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b) (West 1991). As discussed above, in order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). In order to determine whether new and material evidence has been presented, the Board looks to the last final disallowance of this claim. In February 1994, the Board denied the petition to reopen a claim for service connection for a back disorder, and that denial is final. 38 U.S.C.A. § 7103(a) (West Supp. 1999); 38 C.F.R. § 20.1100 (1999). The appellant appealed that determination to the Court, which affirmed the Board's decision in a March 1995 memorandum decision. Although the Court's decision also becomes final on the expiration of the period within which an appellant may file a notice of appeal to the U.S. Court of Appeals for the Federal Circuit (38 U.S.C.A. § 7291(a)), the Court's review is limited to the record of proceedings before the Board (38 U.S.C.A. § 7252(b)). Accordingly, because the Court did not review any evidence other than that of record at the time of the Board's 1994 decision, the Board must look to the evidence added to the record since its 1994 final decision. The evidence received subsequent to February 1994 is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). At the time of the February 1994 Board decision, the evidence of record did not establish that the appellant's back disorder was a result of service. In its March 1995 memorandum decision, the Court specifically stated that even if it was assumed that an injection was given to the appellant during service, there was no medical evidence which established that it caused a back disorder. Any "new" evidence would have to bear directly and substantially upon this matter and be so significant that it must be considered in order to fairly decide the merits of the claim. The Board finds that new and material evidence has not been received. The appellant's statements that he has a back disorder that was incurred during service (items 15 and 22) are cumulative and not new. These items consist of statements presented by the appellant with respect to the inservice onset of a back disability which are essentially the same accounts that were before the Board in 1994. Moreover, his statements concerning the onset of any such condition are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The items listed in (18) and (23) are cumulative and not new. Copies of these documents were already of record in February 1994. To the extent that the medical records (items 17 and 19) show treatment for a back disorder many years after service, they are cumulative and not new. Medical records (items 16, 20, 21, 24, 25, 26, 28, 29, and 30) and lay statements, including from the appellant, that do not mention a back disability, even if new, are not material. This evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. The fact that the appellant is presently or was impaired due to other medical problems is not a matter in dispute. The May 1997 prescription instructions (item 27) showing that the appellant takes medication for muscle pain, although new, is also not material, as is does not pertain to the onset of a back disorder during active service. Accordingly, the Board finds that the evidence received subsequent to February 1994 is not new and material and does not serve to reopen the appellant's claim for service connection for a back disorder. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). D. Duty to assist Where a claimant refers to a specific source of evidence that could reopen a finally denied claim, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Graves v. Brown, 6 Vet. App. 166, 171 (1994). VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence, 38 U.S.C.A. § 5103(a) (West 1991), in this case, because nothing in the record suggests the existence of evidence that might reopen the finally denied claims of entitlement to service connection for upper body disability to include arthritis and a back disorder. While the RO did not obtain the appellant's SSA records or those from Lakeland Family Practice (Dr. Hant Bobo), additional development to obtain these records is unnecessary in view of the medical evidence currently of record. There is no basis for speculating that such records dated many years after service would produce nexus evidence necessary to reopen the appellant's claims. Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to these claims under 38 U.S.C.A. § 5103(a) (West 1991). ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for an upper body disability to include arthritis is not reopened, and the appeal is denied. New and material evidence not having been submitted, the claim of entitlement to service connection for a back condition is not reopened, and the appeal is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals