BVA9507761 DOCKET NO. 93-10 642 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for arthritis of multiple joints. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied the veteran's petition to reopen his claim of entitlement to service connection for arthritis of multiple joints. The Board notes that the veteran filed a claim for entitlement to increased ratings for his service connected right knee and right ankle disorders in December 1991. This claim has not been developed for appellate consideration and is referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim for entitlement to service connection for arthritis of multiple joints. He argues that new and material evidence has been submitted to reopen his claim. In particular, he maintains that he was informed by H.L. Greene, M.D. that his service connected arthritic condition in his right ankle would spread to multiple joints. He further contends that the arthritis in his right ankle has spread to multiple joints and that he is currently being treated for this condition. In the alternative, he maintains that he suffered trauma to multiple joints during service and that he currently suffers from arthritis due to this incident. Consequently, he contends that he is entitled to service connection for arthritis of multiple joints. 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 preponderance of the evidence is against the veteran's petition to reopen his claim for service connection for arthritis of multiple joints. FINDINGS OF FACT 1. Entitlement to service connection for arthritis of multiple joints was denied by the RO in April 1977 on the grounds that the condition was not the result of disease or injury incurred during active service. Since no appeal was filed, the decision became final. 2. Entitlement to service connection for arthritis of multiple joints was denied by the RO in March 1983 on the grounds that new and material evidence sufficient to reopen the claim had not been submitted. Since no appeal was filed, the decision became final. 3. The evidence added to the record since the April 1977 and March 1983 decisions by the RO is not new and material in that it raises no reasonable possibility of changing the outcome. The evidence does not tend to establish that arthritis of multiple joints is the result of disease or injury incurred in or aggravated by active military service; was manifest to a degree of 10 percent within the first year following active service; or is proximately due to and the result of a service-connected disease or injury, namely, arthritis of the veteran's right ankle. CONCLUSIONS OF LAW 1. The RO's decisions in April 1977 and March 1983 denying the veteran's claim of entitlement to service connection for arthritis of multiple joints are final. 38 U.S.C.A. §§ 7105 (West 1991). 2. Evidence received since RO denied entitlement to service connection for arthritis of multiple joints in April 1977 and in March 1983 is not new and material and the veteran's claim for this benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During active service from October 1942 to November 1945, the veteran sprained his right ankle on two occasions. He was also hospitalized for mild bursitis of his right knee, cause and type undetermined, from February to March 1943. He is currently service connected for traumatic arthritis of his right ankle and bursitis of his right knee. In January 1977, the veteran was diagnosed as having either psoriatic or rheumatoid arthritis of multiple joints, including both ankles, both knees, both feet, both hands, both wrists and his shoulders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991). Arthritis may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for a disability which is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). In a rating decision in April 1977, the RO denied entitlement to service connection for arthritis of multiple joints on the grounds that the condition was not shown in service nor developed to a compensable degree within the one year presumptive period. The RO specifically noted that there was no evidence of any trauma to the veteran's left knee during service. The veteran expressed disagreement, but did not file an appeal following the issuance of a statement of the case. Since no appeal was filed by the veteran, the RO's decision in April 1977 denying his claim became final. 38 U.S.C.A. §§ 7105 (West 1991). In March 1983, the RO denied a request to reopen the claim filed by the veteran. Evidence considered by the RO in reaching its decisions included the veteran's service medical records, which contain no evidence of treatment for or diagnoses of arthritis of multiple joints. Importantly, there was no indication in the service medical records that the veteran suffered trauma to any joints aside from his right ankle which is already service connected. The RO also considered the veteran's post service VA examination reports, including a report by a fee basis examiner, H.L. Greene, M.D. dated in November 1949. Although the veteran was examined by VA on several occasions following service, his first complaints and diagnosis with respect to arthritis of multiple joints is contained in an examination report dated in January 1977, approximately 32 years following his discharge from service. Significantly, at the time of the examination he stated that his symptoms associated with arthritis of multiple joints first became manifest in approximately 1970. The foregoing evidence clearly supports the RO's finding in April 1977 that the veteran's arthritis of multiple joints was not shown during active service or within one year thereafter. The veteran subsequently submitted duplicates of his service medical records which documented hospitalization for bursitis of his right knee from February to March 1943, as well as additional VA medical records which showed complaints of and treatment for arthritis of multiple joints on various occasions from June 1978 to March 1983. However, there were no indications contained in these records as to the origin of the veteran's multiple joint arthritis. Accordingly, in a rating decision in March 1983, the RO determined that this evidence did not constitute new and material evidence sufficient to reopen the veteran's claim for service connection for arthritis of multiple joints. Similarly, since no appeal was filed by the veteran, the RO's decision in March 1983 denying his claim became final. 38 U.S.C.A. §§ 7105 (West 1991). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991). "New" evidence is "evidence which is not merely cumulative of other evidence on the record." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "Material" evidence is evidence that "is relevant and probative of the issue at hand." Id. Further, to be new and material, evidence must, when taken together with all the evidence of record, create a reasonable possibility that the outcome would be changed. Id.; see Manio v. Derwinski, 1 Vet.App. 140 (1991). Therefore, the issue before the Board is whether the additional evidence submitted by the veteran since the March 1983 RO decision is both new and material in that it tends to establish that his arthritis of multiple joints is the result of disease or injury incurred in or aggravated by active military service; was manifest to a degree of 10 percent within the first year following active service; or is proximately due to and the result of a service-connected disease or injury. In support of his petition to reopen his claim, the veteran submitted various VA outpatient treatment records dated from May 1985 to April 1991 which showed treatment for arthritis of multiple joints. Also of record is a letter from Jeffrey L. Miller, M.D. dated in April 1986 which diagnosed the veteran as having arthritis of multiple joints. The veteran also testified at a personal hearing in August 1986. He was afforded a VA examination in October 1986 and diagnosed as having severe psoriatic arthritis and severe osteoarthritis of the knees. This additional evidence merely indicates that the veteran has been treated for and diagnosed as having arthritis of multiple joints on various occasions more than 40 years following service. However, this evidence does not indicate the origin of the condition and, in particular, does not demonstrate that the veteran's psoriatic arthritis is the result of disease or injury incurred in or aggravated by service. Nor does it demonstrate that the veteran's psoriatic arthritis of multiple joints became manifest in service or during the post service presumptive period. Therefore, although this evidence is new in the sense that it was not previously of record, it is not material as it is cummulative in nature. It shows that the veteran has continuing psoriatic arthritis of multiple joints that he developed long after service. It simply does not demonstrate that this disability resulted from his active service and would, therefore, not change the outcome of the decision. The veteran also offered testimony at a personal hearing in January 1993. He testified that VA referred him to Dr. Greene in approximately 1949 who informed him that the arthritis of his right ankle would likely spread to his other joints. Of note, the veteran raised this same contention in his notice of disagreement dated in August 1977. The report of examination submitted by H.L. Greene, M.D. dated in November 1949 was of record and considered by the RO in reaching it decisions in April 1977 and in March 1983, which denied entitlement to service connection for arthritis of multiple joints. Significantly, Dr. Greene's report contains no opinion to the effect that the arthritis of the veteran's right ankle would spread to multiple joints. Therefore, no medical evidence has been provided to establish that the cause of the veteran's arthritis of multiple joints was his service connected right ankle condition. With respect to this contention, the veteran has not submitted any "new" evidence and has simply attempted to reopen his claim by reasserting an old argument. The veteran further testified that he suffered an injury involving multiple joints during service at the same time that he injured his right knee. In particular, he stated that while on guard duty, an engine swung around and struck him in the right leg causing him to fall eight to ten feet onto the concrete hangar floor. He maintained that he his left wrist bent back under his body, that he struck his head on the left side, and that he struck his left knee. He further stated that he was subsequently hospitalized due to this injury. However, this testimony is essentially repetitious of statements he made in his original claim for service connection for arthritis of multiple joints in December 1976, which was considered by the RO in its April 1977 decision. In particular, the RO determined that the veteran's service medical records only contain documentation of hospitalization for bursitis of his right knee from February to March 1943. Therefore, this testimony does not constitute "new" evidence as the RO considered this same contention in its April 1977 decision. The majority of the veteran's testimony related to post service treatment that he received for his arthritis of multiple joints. Importantly, it was noted that Dr. Greene was the first doctor from whom he sought treatment following his discharge from service. A review of the record reveals that Dr. Greene treated the veteran only for his right ankle condition in November 1949, four years after his discharge from service. In addition, the veteran offered testimony to the effect that symptoms of arthritis of joints other than his right ankle were not manifest until several years following service. Therefore, the veteran has merely shown that his multiple joint arthritis was first manifest many years after his discharge from service and that he has continued to received treatment for the condition. Inasmuch as the veteran has not provided any new and material information or relevant documentation that could serve as a basis for reopening his previously disallowed claim for service connection for arthritis of multiple joints, the current issue must be denied. ORDER New and material evidence to reopen a claim for service connection for arthritis of multiple joints not having been submitted, the claim is denied. JOAQUIN AGUAYO-PERELES 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.