BVA9503177 DOCKET NO. 91-52 430 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for bronchitis, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive status post lobectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from March 1953 to August 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 1990, rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in October 1990. The statement of the case was sent to the veteran in November 1990. The substantive appeal was received in December 1990. In a December 1992 decision, the Board remanded this case for further development. In an August 1994 rating decision, the RO denied entitlement to service connection for restrictive lung disease, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive. Although the veteran was provided a supplemental statement of the case as to this issue in August 1994, he should have been provided separate notice of the denial and of his procedural and appellate rights. Nevertheless, the veteran's representative submitted a VA Form 1-646 in October 1994 and an informal hearing presentation in November 1994 which both indicated that the issue of entitlement to service connection for restrictive lung disease, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive, was being appealed. Therefore, the Board accepts the earlier October 1994 document as a notice of disagreement as to the August 1994 rating decision denying secondary service connection for restrictive lung disease. The RO should now furnish the veteran a statement of the case as to that issue in accordance with 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. §§ 19.29, 19.30, (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially contend that he currently suffers from bronchitis, which was caused by his service-connected tuberculosis. 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 met the burden of submitting new and material evidence to warrant the reopening of his claim for service connection for bronchitis, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive status post lobectomy. FINDINGS OF FACT 1. In a January 1984 decision, the Board denied entitlement to service connection for bronchitis, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive. 2. The evidence submitted since the Board's January 1984 decision, is cumulative or duplicative of evidence previously considered by the Board in its prior 1984 decision, and does not raise a reasonable possibility that a review of all the evidence, both old and new, would result in a different outcome of the claim. CONCLUSION OF LAW Evidence submitted since the Board's January 1984 final decision denying the veteran's claim for entitlement to service connection for bronchitis, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive, is not new and material and, thus, the veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a January 1984 decision, the Board denied entitlement to service connection for bronchitis, secondary to service-connected tuberculosis, pulmonary, moderately advanced, inactive. The Board decision is final and cannot be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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) (1993). According to the United States Court of Veterans Appeals, in determining whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last final denial based on the entire record, not merely the evidence added to the record subsequent to the last refusal to reopen the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). Therefore, since the last denial on the merits prior to this claim was the Board's final 1984 decision, the question now before the Board is whether new and material evidence has been added to the record following the denial of the claim by the Board in 1984. The evidence of record at the time of the Board's June 1984 decision consisted of: the veteran's service medical records; a VA hospitalization reports indicative of hospitalization and treatment for tuberculosis from August 1955 to October 1956; 1976 VA outpatient records; an August 1976 private physician's report received in September 1976; medical records recorded during the veteran's employment with U.S. Steel received in March 1977; an August 1977 private physician's report received in September 1977 ; VA outpatient records dated in 1981 to 1982; a September 1982 psychiatric report received in February 1983; a March 1983 hearing transcript which reflected the veteran's personal hearing before members of the Board; and general contentions that the veteran had bronchitis secondary to his service-connected tuberculosis. The reportedly "new and material evidence" submitted by the veteran consists of: a January 1990 negative chest x-ray and spirometer report which showed severe restrictive lung disease, both received in April 1990; a letter from the veteran's spouse stating that the veteran was struggling to breathe and in generally poor health, received in January 1993; a March 1987 VA treatment report which noted a history of tuberculosis; 1987 to 1993 VA treatment records which noted that the veteran's dyspnea was probably unrelated to lung disease, that he had chronic obstructive pulmonary disease on x-ray, and that he had an isolated abnormality of diffusing capacity shown during pulmonary function studies; a July 1994 VA examination which revealed that the veteran currently has COPD and dyspnea on exertion, both unrelated to tuberculosis; and general contentions that the veteran has bronchitis secondary to his service-connected tuberculosis. "New" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more that merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The veteran's general contentions that he has bronchitis secondary to his service-connected tuberculosis are duplicative and, therefore, not new evidence. Similarly, the Board concludes that the aforementioned additional evidence is not "material." The applicable law also requires that new and material evidence is evidence which has not been previously submitted to agency decision makers 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) (1993). The Board notes that in order for bronchitis, secondary to tuberculosis, to be considered a service-connected disability, the evidence would have to show that any current finding of bronchitis is proximately due to or the result of the veteran's service-connected tuberculosis. 38 C.F.R. § 3.310(a) (1993). A review of the new evidence does not show that the veteran has bronchitis secondary to tuberculosis. There are no clinical findings which substantiate the veteran's claim that he developed bronchitis as a result of his tuberculosis which has been inactive for many years. In fact, his recent VA respiratory examination did not result in a current diagnosis of bronchitis nor did it support a finding that the veteran had bronchitis due to tuberculosis. Likewise, the examiner indicated that the veteran's current respiratory disorders were not due to tuberculosis and, therefore, developed independently from that disorder. Thus, the new evidence of record does not offer any medical support for the veteran's contentions. The Board has considered the letter of the veteran's spouse. However, she does not assert that he has bronchitis secondary to tuberculosis. Moreover, although she is deemed competent to relate her observations, she not been shown to be capable of making medical conclusions. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Thus, while the Board acknowledges that the aforementioned evidence is "new" in that it was not previously of record, it is not material because there is not a reasonable possibility that this evidence, when viewed in context with all the evidence, both old and new, would change the outcome of this appeal. Smith v. Derwinski, 1 Vet.App. 178 (1991). Therefore, after reviewing the record, the Board concludes that the evidence submitted does not constitute new and material evidence to reopen the veteran's claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1991). ORDER The appeal is denied. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.