BVA9503462 DOCKET NO. 93-10 637 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from August 1943 to July 1946. In an August 1947 rating decision, the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO), denied entitlement to service connection for right knee disability. The appellant was notified of that rating decision by a letter from the VA dated in August 1947, but because she did not file an appeal within one year thereafter, the August 1947 rating decision became final. This appeal comes before the Board of Veterans' Appeals (Board) from a July 1991 rating decision by the RO which determined that new and material evidence had not been submitted to permit reopening of a claim of entitlement to service connection for right knee disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that she fell and injured her right knee while stationed at Ft. Riley, Kansas, in 1946, and subsequently received treatment for right knee disability at Scottfield, Illinois, in 1946. She alleges that she provided detailed information to the examining physician at her discharge examination regarding her initial right knee injury. She claims that her right knee has continued to cause her problems since service, and she indicated in a November 1992 statement that she received one week of hospital care for her right knee in a VA medical facility in Springfield, Missouri. 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 appellant'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 new and material evidence has not been submitted to permit reopening of the appellant's claim of entitlement to service connection for right knee disability. FINDINGS OF FACT 1. Service connection was denied for right knee disability in an August 1947 rating decision, and that decision became final as a result of the appellant's failure to appeal the decision within one year after notification of the denial. 2. The evidence received since the August 1947 rating decision consists of several statements from the appellant claiming an injury to her right knee in service. 3. The additional evidence submitted since the August 1947 rating decision, when considered in the context of all the evidence of record, does not raise a reasonable possibility that the appellant has right knee disability that is of service origin. CONCLUSION OF LAW The evidence received by the Board since the August 1947 rating decision that denied service connection for right knee disability is not new and material, and the claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. 38 U.S.C.A. § 7105 (West 1991). Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. § 5108 (West 1991). New and material evidence is evidence not previously submitted through agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction 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). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The evidence considered by the RO at the time of its August 1947 rating decision consisted of the appellant's claim of generalized pain in the right knee and her service medical records, which showed no complaint or treatment for a right knee disability. The appellant's separation medical examination, conducted in June 1946, also failed to reveal any complaint or finding of a right knee disability. Rather, findings pertaining to the appellant's joints at the June 1946 examination were reported to be normal. Evidence submitted since the August 1947 rating decision consists of several statements from the appellant that allege an injury to the right knee in service, and subsequent treatment therefor, and describe continuous right knee problems ever since. As the evidence submitted since the August 1947 unappealed rating decision does not demonstrate that the appellant has any right knee disability that is of service origin, the Board concludes that such additional evidence is not new and material. Accordingly, the claim of entitlement to service connection for right knee disability is not reopened, and the August 1947 rating decision remains final. New evidence means more than evidence which was not previously physically of record. To be new, additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case, the additional evidence does not provide anything other than the appellant's own statements alleging service incurrence of right knee disability. We note that there is no medical evidence of record that demonstrates the presence of right knee disability either during service or at anytime thereafter. ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection for right knee disability, that benefit remains denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.