BVA9505407 
DOCKET NO.  93-11 132     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUE

Whether new and material evidence has been submitted to reopen a
claim for service connection for an eye disorder, psychiatric
disorder, headache disorder, and back disorder.

REPRESENTATION

Appellant represented by: Kentucky Department of Veterans
Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Sandra L. Smith, Associate Counsel

INTRODUCTION

The veteran had active service from April 1946 to September 1951.
In rating actions dated in March 1952 and July 1971, service
connection for an eye disorder, nervous disorder, headache
disorder, and back disorder was denied.  The veteran was notified
of these actions but he did not appeal.  This appeal is before
the Board of Veterans' Appeals (the Board) from a December 1991
rating decision of the Regional Office (RO) which denied the
veteran's request to reopen his claim.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his current eye disorder, nervous
disorder, headache disorder, and back disorder were first
manifested and treated in service.  Furthermore, he contends that
the eye disorder did not pre-exist his service enlistment; or in
the alternative, was aggravated by his active service.  In
addition, he contends that the evidence submitted since the March
1952 and July 1971 rating decisions is new and material.

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 the veteran has not submitted new and material
evidence; therefore, the claim for service connection for an eye
disorder, psychiatric disorder, headache disorder, and back
disorder is not reopened.

FINDINGS OF FACT

1.  All relevant available evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.

2.  The March 1952 denial of entitlement to service connection
for an eye disorder and psychiatric disorder became final when
the veteran failed to appeal.

3.  The July 1971 denial of entitlement to service connection for
a headache disorder and back disorder became final when the
veteran failed to appeal.

4.  The additional evidence submitted since the March 1952 and
July 1971 rating decisions is cumulative or does not tend to show
that the veteran's eye disorder, psychiatric disorder, headache
disorder, and back disorder began in, or increased in severity
during service.

CONCLUSIONS OF LAW

1.  Evidence received since the agency of original jurisdiction
denied entitlement to service connection for an eye disorder and
psychiatric disorder in March 1952 is not new and material.
Therefore, the claim for service connection for an eye disorder
and psychiatric disorder is not reopened.  38 U.S.C.A. §§ 5107,
5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302
(1994).

2.  Evidence received since the agency of original jurisdiction
denied entitlement to service connection for a headache disorder
and back disorder in July 1971 is not new and material.
Therefore, the claim for service connection for a headache
disorder and back disorder is not reopened.  38 U.S.C.A. §§ 5107,
5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302
(1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A person who submits a claim for benefits has the burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107.  After reviewing the evidence on file we
conclude that the veteran's claim is well grounded within the
meaning of 38 U.S.C.A. § 5107(a).  That is, the claim presented
is not inherently implausible.  Furthermore, we conclude that all
facts pertinent to the plausible claim have been developed and
that as such, there is no further duty to assist in developing
the claim as contemplated by 38 U.S.C.A. § 5107(a).

An unappealed determination of the agency of original
jurisdiction is final.  38 U.S.C.A. § 7105; 38 C.F.R.
§§ 3.104(a), 19.129(a).  In order to reopen a claim for service
connection there must be added to the record "new and material
evidence" which raises a reasonable possibility that the claim
can be allowed.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

The United States Court of Veterans Appeals (the Court) has held
that the Board must perform a two-step analysis when a veteran
seeks to reopen a claim based on new evidence.  First, the Board
must determine whether the evidence is "new and material."
Second, if the Board determines that new and material evidence
has been added to the record, the claim is reopened and the Board
must evaluate the merits of the veteran's claim in light of all
the evidence, both old and new.  Manio v. Derwinski, 1 Vet.App.
140 (1991).  "New" evidence means more than evidence which was
not previously physically of record.  To be "new," the additional
evidence must be more than merely cumulative.  Colvin v.
Derwinski, 1 Vet.App. 171 (1991).  To be "material," the
additional evidence must be probative of the issue at hand.
Also, to be "material," there must be a reasonable possibility
that the new evidence, when viewed in the context of all the
evidence, both old and new, would change the outcome of the
previous decision.  Smith v. Derwinski, 1 Vet.App. 178 (1991).

Claim for service connection for an eye disorder and psychiatric
disorder

The evidence which was of record in this case when the RO
considered it in March 1952 may be briefly summarized.  The
service medical records show that the veteran was noted to have
normal vision in both eyes on the service entrance examination
report, dated in April 1946.  One month later, in May 1946,
service treatment records show a diagnosis of marked amblyopia of
the left eye with vision of 20/400 "EPTS" (existed prior to
service).  In September 1946 examination revealed a convergent
squint with vision in the left eye reduced to light perception;
vision in the right eye was corrected to 20/20.  He claimed that
vision in the left eye was 20/20 when he entered service and that
his troubles started when he fired a rifle near his left eye.  He
then also stated that his eye had turned in for 3 to 4 years.  In
early September 1950 while in combat in Korea, the veteran
sustained a chemical burn to the eyes caused by an exploding
shell.  He was treated with a topical ointment and returned to
duty.  Later in September 1950 he was again injured when an enemy
shell blew him out of a fox hole causing a concussion and acute
conjunctivitis.

The veteran was subsequently hospitalized from September to
January 1951.  An ophthalmologic examination in September 1950
noted a history of a crossed left eye since age of 15.  The
veteran admitted vision in his left eye had never been good yet
claimed that it was 20/20 in April 1946.  He also described a
dynamite blast which allegedly occurred in June 1946 while in
basic training which broke his nose and injured his left eye.  He
claimed his vision had gradually decreased since then.  The
diagnoses were (1) esotropia, left, 20 degrees, concomitant; and
(2) amblyopia ex anopsia, left eye.  The examiner also stated it
was his belief that poor vision of the left eye had been present
longer than the veteran admitted.  Hospital records show that the
veteran recovered from the concussion with no residuals.  The
veteran had complained of headaches at admission, but in October
it was noted that the veteran indicated his head was "cleared
up."  It was noted that his vision was not affected by the mortar
shell explosion.  A neurological consultation report was
negative.  The veteran was observed to be mildly nervous while
hospitalized; a psychological evaluation resulted in an
impression of conversion reaction mechanisms.  The only final
diagnoses recorded were those pertinent to the left eye.

The veteran's separation examination report, dated in September
1951, showed a deviation of the nasal septum and  a small scar on
the forehead.  It was also noted that the veteran's vision in the
left eye was limited to light perception only.  The certificate
of discharge,  DD Form 214, indicated that the veteran received
two wounds as a result of action with the enemy:  flash blindness
in early September 1950 and a contusion of the back from mortar
at a later date in September 1950.

The veteran was also afforded a VA medical examination prior to
the March 1952 rating decision.  The examination report, dated in
February 1952, indicated the veteran gave a history of injuring
his left eye and nose in 1946 in an explosion while in basic
training.  In 1950 during combat he was knocked unconscious by an
exploding motor shell which temporarily blinded him.  His vision
had been blurred, especially in his left eye, since then.  He
stated he could only see light and dark in his left eye.  He also
described a car accident in 1951, while on duty, in which he
bumped his forehead.  He complained of headaches about six times
a month.  He also complained of feeling "shaky and jumpy" all the
time.  The VA eye examiner noted that the veteran's current
vision in the left eye was 5/200 and would not improve.  After
reviewing the service medical records, the examiner also opined
that the veteran's condition appeared to be an ordinary
convergent strabismus with amblyopia, exanopsia.  In addition,
the examiner did not believe the injury in 1950 was connected
with the veteran's poor vision.  The final diagnosis was
convergent squint with amblyopia, exanopsia of the left eye.  The
neuropsychiatric examination resulted in a diagnosis of no
neuropsychiatric disease found.

Evidence added to the record since March 1952 includes statements
from the veteran; a private medical statement, dated in June
1971; three private medical reports, dated in 1984; an x-ray
report, dated in 1984; an eye examination report, dated in 1984;
a note from a rehabilitation counselor, dated in 1984; four lay
statements, dated in November 1991 and April 1992; copies of VA
medical records, dated from 1986 to 1992; the veteran's testimony
from a personal hearing held in June 1992, and summary of service
hospital records received from the Department of the Army in
1992.  Using the legal guidelines set forth above, the Board has
reviewed this additional evidence associated with the claims
folder since the March 1952 decision.

The Board finds that the veteran's written statements, dated in
June 1971 and January 1984, are not "new and material evidence."
The description of the veteran's current condition is not
material to the issue of whether the veteran's eye disorder
and/or nervous disorder was incurred in or aggravated by service.
Therefore, the Board concludes that it is not "material"
evidence.  In addition, the assertions of the veteran that his
current disability is related to problems he had in service is
not competent evidence with regard to that issue.  Layno v.
Brown, No. 92-353 (U.S. Vet.App. May 27, 1994); Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993).  He lacks the medical
expertise to enter a medical judgment as to any relationship
between the onset of his current disability and any in-service
incident.  Espiritu v. Derwinski, 2 Vet.App. 492 (1992).

The Board finds that the medical records from private medical
care providers, dated in June 1971 are not "new and material."
These records pertain to the veteran's alleged back disorder.
Thus, although they are "new", they are not "material" in that
these records have no relevance whatsoever to the issue in
question.

The Board finds that the three medical reports from private
physicians, dated in 1984, are not "new and material" in that
they contain no evidence as to any alleged eye disorder and/or
nervous disorder.  One report referred to left visual loss which
the veteran attributed to probable amblyopia but there was no
reference to any relationship to service.

The Board further finds that the private eye examination report,
dated in March 1984, is "new" in that it was not considered by
the RO in 1952.  However, the report is not "material" in that it
contains no clinical evidence or medical opinion that the
veteran's left eye condition was incurred in or aggravated by
service.

The Board finds that a written statement from a rehabilitative
officer, received in 1984, and which indicated the veteran had no
rehabilitative potential, contained no evidence as to either an
eye disorder or nervous disorder.  Thus, it is not "new and
material evidence".

The claims folder also contains statements from two individuals,
dated in November 1991, which state that the veteran had
experienced trouble with his eyes, headaches, back, and nerves
during the time that each had known the veteran.  The Board notes
that one individual indicated he had known the veteran for 22
years, and the other, for over 30 years.  Neither individual knew
the veteran either prior to, during, or for a number of years
after his discharge from service.  Thus, the Board finds that
these statements are not "material" in that they contain no
evidence as to whether an eye disorder and/or nervous disorder
was incurred in, or aggravated by, service.

There are also two statements of record from individuals, dated
in April 1992, which state they knew the veteran for over 40
years and that he had experienced problems with his back, eyes,
nerves and headaches since his discharge from service.  These
additional statements are "new"; however, they provide no
additional relevant evidence as to the issue of inservice
incurrence or aggravation.  Therefore, the Board concludes that
these statements are not new and material.

The veteran submitted a written statement, dated in November
1991, and testified at a personal hearing held in June 1992.  He
stated that, although his eye condition might be related to a
childhood disease, exposure or trauma in service could have
hastened or worsened the condition.  He did not remember any
problems with his eye sight prior to service.  At the time of his
service entrance examination he was not informed of any eye
problem.  He had trouble with his head and eyes while in boot
camp but could not remember the details.  He was then assigned to
Germany where he experienced headaches.  He related the injuries
he received in Korea and the subsequent medical treatment he
received while in service.  After service he was treated in early
1952 by a private doctor for his back and headaches.  Since
service he had been treated for his eye condition approximately a
dozen times.  He began going to a VA medical center for treatment
in approximately 1984.  The veteran also described current
problems with blackouts and headaches.

The Board finds that the veteran's written statement and
testimony are not "new and material."  The testimony as to the
medical treatment during service and his memory of events prior
to service is cumulative in that the RO considered similar
evidence in the decision of March 1952.  The additional testimony
as to the medical treatment following service is "new"; however,
it provides no additional relevant evidence as to the issue of
inservice incurrence or aggravation.  Therefore, we conclude that
the veteran's testimony is not new and material.

The Board also finds that VA medical records, dated from 1986 to
1992, are not new and material in that, while the records are
"new", they are not "material" in that they contain no clinical
evidence or medical opinion as to the issue of inservice
incurrence or aggravation of an eye disorder and/or nervous
disorder.

The Board further finds that the summary of the veteran's
hospital treatment while in service based on information in the
Surgeon General's Office is not "new and material" in that it is
cumulative of evidence of record at the time of the March 1952
rating decision.

Consequently, the evidence presented since the March 1952
decision is not new and material and the veteran's claim as to
service connection for an eye disorder and psychiatric disorder
is not reopened.

Claim for service connection for headache disorder and back
disorder

The evidence which was of record in this case when the RO
considered it in July 1971 included the service medical records
and the February 1952 VA medical examination report described
above.  In addition, a written statement from the veteran, dated
in June 1971, indicated that he was currently experiencing
"splitting headaches" and his back was bothering him.  A
statement from a private physician, dated in June 1971 indicated
the veteran had been seen by him because of trouble with his back
and nerves.  A statement from a private medical facility, dated
in June 1971, indicated that the veteran had injured his lower
back in September 1952, May 1963, and May 1964; clinical findings
revealed osteoarthritic spurring in the lower dorsal area and the
current diagnosis was strained muscles with aggravation to old
back condition.

Evidence added to the record since July 1971 includes statements
from the veteran; three private medical reports, dated in 1984;
an x-ray report, dated in 1984; an eye examination report, dated
in 1984; a note from a rehabilitation counselor, dated in 1984;
four lay statements, dated in November 1991 and April 1992;
copies of VA medical records, dated from 1986 to 1992; the
veteran's testimony at a personal hearing in June 1992; and
summary of service hospital records received from the Department
of the Army in 1992.

Using the legal guidelines set forth above, the Board has
reviewed the evidence associated with the claims folder since the
July 1971 decision.  The Board finds that the written statement
of the veteran, dated in January 1984, is not "new and material
evidence."  The description of the veteran's current condition is
not material to the issue of whether the veteran's headache
disorder and/or back disorder was incurred in or aggravated by
service.  Therefore, the Board concludes that it is not
"material" evidence.  In addition, the assertions of the veteran
that his current disability is related to problems he had in
service is not competent evidence with regard to that issue.
Layno v. Brown, No. 92-353 (U.S. Vet.App. May 27, 1994);
Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993).  He lacks the
medical expertise to enter a medical judgment as to any
relationship between the onset of his current disability and any
in-service incident.  Espiritu v. Derwinski, 2 Vet.App. 492
(1992).

The Board also finds that the eye examination report, dated in
1984, and a note from a rehabilitation counselor, dated in 1984,
are not new and material in that they contain no evidence as to
any alleged headache disorder and/or back disorder.

The veteran has submitted three medical reports and an X-ray
report, dated in 1984.  A report from one physician indicated
that the veteran was seen for chronic cough and shortness of
breath.  He also complained of occasional headaches exacerbated
by coughing.  Sometimes his coughing fits were so severe that he
"blacked out."  The veteran was diagnosed to have a chronic
obstructive lung disease and it was determined that his syncopal
episodes were probably cough related.  A neurological consult
confirmed the diagnosis of cough syncope.  An orthopedic report
noted a history of back injury in service with only intermittent
aches and pain in the lower back until about three years
previously when the veteran hurt his back lifting.  The diagnosis
was degenerative disc disease and degenerative arthritis of the
lumbar spine.  The X-ray report confirmed some mild degenerative
change of the thoracic spine.

The Board finds that these three medical reports are not "new and
material evidence."  While these medical records are "new", they
contain no clinical evidence or medical opinion as to inservice
incurrence or aggravation.

The Board further finds that the written statement, dated in
November 1991 and the testimony of the veteran from the personal
hearing held in June 1992, are not "new and material evidence."
The testimony as to the medical treatment during service and his
memory of events prior to service is cumulative in that the RO
considered similar evidence in the decision of July 1971. In
addition, the veteran's statements provide no additional relevant
evidence as to the issue of inservice incurrence or aggravation.
Therefore, we conclude that the veteran's testimony is not new
and material.

As to the lay statements, dated in November 1991 and April 1992,
the Board finds that they are not "new and material evidence" as
to the issue of service connection for a headache disorder and/or
back disorder for the same reasons as stated for the issue of
service-connection for an eye disorder and nervous disorder in
the discussion above.

The Board also finds that VA medical records, dated from 1986 to
1992, are not new and material in that, while the records are
"new", they are not "material" in that they contain no clinical
evidence or medical opinion as to the issue of inservice
incurrence or aggravation of a headache disorder and/or back
disorder.

The Board further finds that the summary of the veteran's
hospital treatment while in service based on information from the
Surgeon General's Office is not "new and material" in that it is
cumulative of evidence of record at the time of the July 1971
rating decision.

Consequently, the evidence presented since the July 1971 decision
is not new and material and the veteran's claim as to service
connection for a headache disorder and back disorder is not
reopened.

ORDER

New and material evidence not having been submitted to reopen a
claim of entitlement to service connection for an eye disorder,
psychiatric disorder, headache disorder or back disorder, the
benefit sought on appeal is denied.

          HOLLY E. MOEHLMANN

          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.