Citation Nr: 0000541 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-10 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously disallowed claim of entitlement to service connection for a left hip injury. 2. Whether new and material evidence has been submitted to reopen a previously disallowed claim of entitlement to service connection for hypoglycemia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from April 1979 to July 1979 and from September 1990 to June 1991. This case comes before the Board of Veterans' Appeals (Board) by means of a January 1998 rating decision rendered by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Service connection for a left hip disability was denied by means of a March 1995 rating decision. 2. Information contained in a January 1991 service medical record, received subsequent to the March 1995 rating action, indicates inservice complaints of left hip pain and is duplicative of information previously considered by the RO. 3. Evidence contained in a March 1994 Army National Guard Individual Sick Slip, received subsequent to the March 1995 rating action, does not bear directly and substantially upon the etiology of the veteran's left hip disability. 4. The information contained in post service VA medical records, received subsequent to the March 1995 rating action, does not bear substantially on the issue service connection for a left hip disability. 5. The testimony given during a March 1998 RO hearing and an October 1999 Travel Board Hearing is cumulative of the veteran's prior contentions pertaining to the etiology of her left hip disability. 6. Service connection for hypoglycemia was denied by means of a March 1995 rating decision. 7. Post service VA medical records, received subsequent to the March 1995 rating decision, is cumulative of the veteran's treatment for anemia and hypoglycemia. 8. The testimony given during a March 1998 RO hearing and an October 1999 Travel Board Hearing is cumulative of the veteran's prior contentions pertaining to aggravation of her hypoglycemia during active duty. CONCLUSIONS OF LAW 1. The March 1995 rating decision, wherein service connection for a left hip disability was denied, is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. The evidence received subsequent to the March 1995 rating decision does not serve to reopen the veteran's claim for service connection for a left hip disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The September 1995 rating decision, wherein service connection for hypoglycemia was denied, is final. 38 U.S.C.A. § 7104(b) (West 1991). 4. The evidence received subsequent to the September 1995 rating decision does not serve to reopen the veteran's claim for service connection for hypoglycemia. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Governing statutory and regulatory provisions stipulate that both unappealed rating decisions and decisions of the Board are final, and may be reopened only upon the receipt of additional evidence that, under the applicable statutory and regulatory provisions, is both new and material. 38 U.S.C.A. § 5108 (West 1991); see also 38 U.S.C.A. § 7104(b) (West 1991). "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet. App. 171 (1990). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996), wherein the Court held that the question of what constitutes new and material evidence requires referral only to the most recent final disallowance of a claim. In addition, the evidence, even if new, must be material, in that it is evidence not previously of record that 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 Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Court has held that materiality contemplates evidence that "tend[s] 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." Evans v. Brown, 9 Vet. App. at 284 (1996). See Winters v. West, 12 Vet. App. 203 (1999), in which the Court held that a three-step analysis is necessary. First, it must first be determined if new and material evidence has been submitted under 38 U.S.C.A. § 3.156(a). Second, if new and material evidence has been presented, the claim is reopened and then it must be determined if the claim is well grounded based upon all the evidence of record, both old and new. Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim. See also Elkins v. West, U.S. Vet. App. No. 97-1534 (Feb. 17, 1999) (en banc). I. Left Hip Disability Service connection for a left hip disability was denied by the RO by means of a March 1995 rating decision, as the evidence showed the veteran's injury to the left leg and hip was acute and resolved with no residual disability found on VA examination. At that time, the RO considered the evidence of record, which included service medical records and a VA examination report of June 1994. The record does not show that a notice of disagreement was filed or that an appeal was perfected within one year after notification of the RO's decision. Therefore, the decision of March 1995 became final in March 1996 (one year after notification). 38 C.F.R. § 3.104 (1999). Pertinent evidence related to the veteran's claim for service connection for a left hip disability submitted subsequent to the March 1995 rating action includes a copy of a January 1991 service medical record indicating that the veteran complained of left lower extremity pain after being hit by a forklift. This medical record is not "new" as it is duplicative of information contained in the veteran's claims folder that was considered when the RO rendered the March 1995 decision. Accordingly, this service medical record will not serve to reopen the veteran's claim for service connection for a left hip disability. Similarly, a March 1994 Army National Guard Individual Sick Slip indicates that the veteran was allowed to rest as needed during construction of a hospital due to her left leg pain. The information contained in the March 1994 Sick Slip is new as it presents information that had not previously been associated with the veteran's claims folder. However, the information is not "material" to the issue presented in this case. The information contained in this Sick Slip does not bear "directly and substantially upon the specific matter under consideration." The sick slip indicates that the veteran has left hip pain; however, the etiology of this pain is not addressed. Materiality contemplates evidence that "tend[s] 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." As a relationship between the veteran's hip pain and service was not addressed in the March 1994 Sick Slip, and a clinically ascertainable disorder was not identified, the information contained therein is not material and will not serve to reopen her claim. Information submitted subsequent to the March 1995 rating action also includes VA outpatient treatment records showing complaints and treatment for left hip pain. A September 1996 VA outpatient treatment record indicates that the veteran sought a medical profile that would restrict her to walking instead of running. A VA radiology report, taken in conjunction with the outpatient treatment record, indicates that the veteran's bony pelvis was intact and that both hip joints were normal. Similarly, a November 1997 VA outpatient treatment record indicates some tightness of the left adductus and iliopsis muscles of the left leg. Additionally, a February 1998 outpatient treatment record indicates mild tightness of the left iliopsis and hip adductors. The information concerning the existence of a left hip disability is new as it presents information that was not considered by the RO when the March 1995 rating action was rendered. However, the information is not material to the issue at hand. The information does not offer material evidence of the onset of a left hip disability during service. Accordingly, the information contained in the post service VA medical evidence will not serve to reopen the veteran's claim of service connection for a left hip disability. The evidence submitted subsequent to the March 1995 rating action also includes testimony given at a March 1998 RO hearing and an October 1999 Travel Board Hearing before the undersigned Board Member sitting at the RO. During the hearings, the veteran expressed her contention that her current left hip problems were due to an inservice hip injury in which she was struck by a forklift. The information contained in the hearing transcripts is not "new" as it is merely cumulative of the veteran's prior contentions that her left hip problems are related to her active military service. As the information is not new, it will not serve to reopen her claim of service connection for a left hip disability. Based on the preceding discussion, the Board finds that new and material has not been submitted sufficient to reopen the veteran's claim for service connection for a left hip disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999); see also 38 U.S.C.A. § 7104(b) (West 1991). II. Hypoglycemia Service connection for hypoglycemia was denied by the RO by means of a September 1995 rating decision as the evidence showed that this condition existed prior to service and was not shown to have been aggravated by active service. At that time, the RO considered the evidence of record, which included service medical records, post service VA outpatient treatment records, and private medical records from August 1989 to September 1990 from the Family Clinic. The record does not show that a notice of disagreement was filed or that an appeal was perfected within one year after notification of the RO's decision. Therefore, the decision of September 1995 became final in September 1996 (one year after notification). 38 C.F.R. § 3.104 (1999). The pertinent evidence related to the veteran's claim for service connection for hypoglycemia submitted subsequent to the September 1995 rating action includes post service VA medical records from June 1994 to February 1998 indicating treatment for anemia and hypoglycemia. This information is not "new" as it is a cumulation of the veteran's treatment for hypoglycemia. As the information is not new, it cannot serve to reopen the veteran's previously disallowed claim of entitlement to service connection for hypoglycemia. The evidence submitted subsequent to the September 1995 rating action also includes testimony given during a March 1998 RO hearing and an October 1999 Travel Board Hearing. During the hearings, the veteran expressed her contention that her hypoglycemia was aggravated by her military service. The information contained in the hearing transcripts is not "new" as it is merely cumulative of the veteran's prior contentions that her preexisting hypoglycemia was aggravated by her active military service. As the information is not new, it will not serve to reopen her claim of service connection for a hypoglycemia. Based on the preceding discussion, the Board finds that new and material has not been submitted sufficient to reopen the veteran's claim for service connection for hypoglycemia. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999); see also 38 U.S.C.A. § 7104(b) (West 1991). ORDER New and material evidence has not been submitted to reopen a claim for service connection for a left hip disability. New and material evidence has not been submitted to reopen a claim for service connection for hypoglycemia. MARK W. GREENSTREET Member, Board of Veterans' Appeals