BVA9507024 DOCKET NO. 92-25 123 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from January 5, 1976 to January 15, 1985 when he was discharged with a bad conduct discharge. In an Administrative Decision dated in July 1986, the Indianapolis, Indiana, Regional Office considered the character of the veteran's discharge for purposes of Department of Veterans Affairs (VA) benefits. It was determined that the initial obligated period of service extended from January 5, 1976 through January 5, 1980 under 38 C.F.R. § 3.13 (1994) and this period was honorable and could be the basis for VA benefits. It was also determined under 38 C.F.R. § 3.12 (1994) that the period from January 5, 1980 to January 15, 1985 was considered dishonorable for VA purposes and could not be the basis of VA benefits. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1991, rating decision of the Houston, Texas, Regional Office (RO) of the VA. The notice of disagreement was received in January 1992. The statement of the case was sent to the veteran in March 1992. The substantive appeal was received in April 1992. In a May 1993 decision, the Board remanded this case to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL In a letter dated July 9, 1991 the veteran asserted that he injured his back in the same accident his left knee (which is service connected) was injured. In a letter dated August 9, 1991 he related that he injured his back in 1979. In response to the supplemental statement of the case dated February 3, 1994, the veteran in a letter dated February 24, 1994 asserted that on June 28, 1977 he was pinned between the door post of a government vehicle when a record vehicle his the door to his vehicle's door and caused a sharp pain on the left side of his chest and left ankle. Then in April 1978 he went to the clinic with low back pain for which he received treatment but the pain continued, he related in February 1994. The veteran in February 1994 when on to assert that when he had the accident in September 1979 the motorcycle did not fall on his left leg, it fell on his back and twisted his left leg. He contended that the May 1983 examination was normal because an X-ray doesn't reveal a back deformity. 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 entitlement to service connection for a low back disability. FINDINGS OF FACT 1. In a January 1990 decision, the RO denied entitlement to service connection for a low back disability. The veteran was informed in a February 1990 letter, which was sent to his address of record, of the denial of service connection, and of his procedural and appellate rights; however, a notice of disagreement was not received within the subsequent one-year period. 2. The evidence submitted since the RO's January 1990 decision, is cumulative or duplicative of evidence previously considered by the RO in its prior 1990 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 RO's final January 1990 denial of entitlement to service connection for a low back disability, is not new and material and, thus, the veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a final January 1990 rating decision, entitlement to service connection for a low back disability were denied by the RO. The veteran, in a February 1990 letter, was apprised of his procedural and appellate rights; however, a notice of disagreement was not received within the subsequent one-year period. When a claim has been disallowed by the RO, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). In July 1991 correspondence, the veteran indicated that he was seeking service connection for his "0% NSC" back disability. In response, in a July 1991 letter, the RO informed the veteran that his one year period to appeal the denial of his claim for entitlement to service connection for a back disability had expired since he had not filed an appeal to the February 1990 letter. Thereafter, in August 1991 correspondence, the veteran asserted that he never received the February 1990 letter. However, the Board observes that the veteran referred to his "0% NSC" back disability which is the language used in the January 1990 rating decision. Moreover, the Board notes that the record reflects that February 1990 letter was sent to the veteran's address of record. The United States Court of Veterans Appeals (Court) has stated that principles of administrative regularity dictate a presumption that the government officials "have properly discharged their official duties," and that these duties include that of the RO to properly mail a copy of its decision to the latest address of record of the appellant. Saylock v. Principi, 3 Vet.App. 394, 395 (1992) citing Bosmay v. Derwinski, 2 Vet.App. 306, 309 (1992). The presumption of regularity may only be rebutted by "clear evidence to the contrary." Ashley v. Derwinski, 2 Vet.App. 307, 309 (1992). Clear evidence to the contrary has been interpreted as evidence that the document in question had been mailed to the incorrect address. See Fluker v. Brown, 5 Vet.App. 296, 298 (1993) (citing Piano v. Brown, 5 Vet.App. 25, 27 (1993) (per curiam)). Since the record reflects that the February 1990 letter was in fact mailed to the address of record, the veteran has not provided clear evidence sufficient to rebut the presumption of regularity. Therefore, the Board finds that the January 1990 decision denying entitlement to a low back disability is final and can only be reopened if new and material evidence is submitted. 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) (1994). The Court has set forth a two-step analysis in Manio v. Derwinski, 1 Vet.App. 140 (1991), to be employed when an appellant seeks to reopen a previously denied claim on the basis of "new and material evidence." The two-step analysis requires that a determination be made, under 38 U.S.C.A. § 5108 (West 1991), regarding whether the evidence is "new and material" so as to permit the reopening of the claim. If it is, a decision must then be made as to whether the evidence presented warrants a revision of the former disposition. The second level analysis must be made based upon an evaluation of the merits of the claim in light of all the evidence, both old and new. An adverse determination regarding either question is appealable. Further, "new" evidence must be more than merely cumulative of other evidence of record, and "material" evidence must be relevant and probative of the issue under consideration, and present a reasonable possibility that the new evidence when viewed in the context of all of the evidence, new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Therefore, in assessing the sufficiency of the additional evidence for purposes of reopening a claim, a critical examination of all of the evidence of record is necessary. The evidence of record at the time of the January 1990 rating decision included the 1993 Administrative Decision of the Indianapolis, Indiana Regional Office, the veteran's service medical records which included June 1977 records reflecting treatment for the veteran's left foot and ribs after a motor vehicle accident, April 1978 records reflecting treatment for low back pain which resolved within a few days, September 1979 records which reflected treatment for his left hip, leg, and foot following a motorcycle accident, and subsequent records which did not reflect treatment for a back disability. (The RO in 1990 considered the veteran's period of active service for VA benefit purposes to be January 5, 1976 to January 5, 1980.) Also of record was a letter received in January 1988 from the veteran's private physician which indicated that the veteran reported being involved in a motorcycle accident in 1979 which resulted in low back pain two years later. The physician noted that the veteran had a herniated disc, most likely L4-L5, at the time of the examination of the veteran by the physician. The physician included his clinical records. Finally, of record were the veteran's personal contentions that he initially injured his back at the time of the 1979 motorcycle accident as well as a Report of Accidental Injury dated in January 1989. In the Report of Accidental Injury, the veteran indicated that the veteran injured his back in 1979 motorcycle accident. The reportedly "new and material evidence" submitted by the veteran since the January 1990 final decision consists of: private clinical records dated from October 1985 to December 1985 which reflected treatment for back pain and noted that the veteran had been in an accident in 1979; an October 1985 x-ray revealing a normal lumbosacral spine; a statement dated in April 1992 from a VA examiner which indicated that with conventional x- rays, a disc is not visible and that the veteran had undergone an MRI which revealed a herniated disc which was subsequently removed; VA treatment records dated from 1988 to 1992 which indicated that the veteran underwent diskectomies in 1988 and 1991 and received treatment for back problems; a December 1988 VA treatment record which noted that the veteran had a history of a herniated lumbar disc in 1979; duplicate copies of the veteran's service medical records; a reiteration of the veteran's previous assertions that he injured his back in the 1979 motorcycle accident; and a new assertion that he was treated for a back disability in 1978. As noted above, "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. The veteran's duplicate service medical records and his reiteration of prior contentions that he injured his back in the 1979 motorcycle accident are obviously duplicative in nature. Therefore, this evidence is cumulative and 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) (1994). The Board has reviewed the newly submitted evidence with respect to the issue of entitlement to service connection for a low back disability, however, the Board concludes that the aforementioned evidence is not "material" since that evidence does not present a reasonable possibility that the new evidence when viewed in the context of all of the evidence, new and old, would change the outcome. Although the new evidence revealed treatment for back pain since 1985 and two diskectomies in 1988 and 1991 respectively, that evidence does not relate to the issue of whether the veteran's back problems were a result of disease or injury sustained in service. The veteran currently contends that he was treated for that back disability again in 1978 but the RO in 1990 considered all the service records including the 1978 entries. Likewise, although the veteran reported to his post- service examiners that he was involved in a motorcycle accident in service which resulted in a back injury, that personal history is not supported by the evidence of record which was considered at the time of the final 1990 decision. As noted above, the RO, in 1990, considered the veteran's service medical records including those relevant to the 1977 motor vehicle accident as well as the 1978 treatment records. Thus, even though the veteran did not previously specifically contend that he was treated in 1978 for residual low back problems, the RO considered those contentions implicitly as the records relevant to the treatment in 1978 were considered. In addition, the "old evidence" did not reveal any injury to the back at the time of the 1979 accident nor did it reveal any treatment for a back disability thereafter in the veteran's service medical records. The notations by the veteran's examiners that he had a back problem since 1979 per the veteran's history amount to no more than a reiteration by the veteran of his own personal assertions and was not a finding by a physician that the back disability began in 1979. Thus it is not material evidence. As noted above, the RO fully considered the veteran's assertions that his back was initially injured in the 1979 motorcycle accident which he asserted resulted in a permanent disability including a herniated disc. That contention is not new evidence. In addition, the Board considered the statement from the VA examiner which indicated that with conventional x-rays, a disc is not visible. However, that examiner did not provided an opinion as to whether the veteran originally had a herniated disc during service or as a result of service. As such, that statement does not present a reasonable possibility of changing the outcome when viewed in the context of all of the evidence. 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 for entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). ORDER The appeal is denied. E. M. KRENZER 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.