BVA9501527 DOCKET NO. 93-11 180 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from March 1961 to November 1964. Personnel records also reveal duty for 22 days in 1966, 8 days in 1967, and 15 days in 1968. These exact periods have not been verified, but there are no contentions surrounding these periods which necessitate verification. Service connection for a back disorder was denied by rating action of February 1987. The veteran was notified and did not timely disagree therewith. This matter now comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September, 1992 rating decision of the New York, New York, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a back disability. It is apparent from the record that the appellant has raised a claim for entitlement to service connection for a pulmonary disability as a residual of in-service asbestos exposure which is currently under development at the RO. As such, those issues are not developed for appellate review and this decision is limited to the issue set forth on the title page. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that new and material evidence has been submitted to reopen his claim for service connection for a back disability. He asserts that he injured his back during service, and as a result, suffers from current lower back pain. 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 no new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a back disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. By a rating decision dated in February 1987, service connection for a back disability was denied. The appellant was provided notice of such decision that month, but failed to file a timely notice of disagreement therewith. 3. Additional evidence submitted subsequent to that decision, when viewed in the context of all the evidence, does not present a reasonable possibility of changing the outcome, since it does not tend to show that the appellant currently has a back disability which was started during or made worse by his military service. CONCLUSIONS OF LAW 1. Evidence received subsequent to the unappealed rating decision of February 1987, which denied service connection for a back disability, is not new and material. 38 U.S.C.A. § 5108 (West 1991). 2. The RO's February 1987 decision denying entitlement to service connection for a back disability is final. 38 U.S.C.A. §§ 1131, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156, 20.302 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. See Counts v. Brown, 6 Vet.App. 473, 476 (1994) (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances.") (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative private medical records, or when evidence already before the Board raises sufficient notice of possible probative private medical records). Service medical records appear to be complete, and it is not otherwise contended. During July 1962 in-service treatment for complaints of lower back pain, the appellant reported a history of being struck by a car at age 14 resulting in "some sort of back injury." There are no medical reports currently of record dated prior to the appellant's military service. However, no back injuries or related symptomatology were reported or found upon examination prior to entering service, nor has the appellant alleged that he was treated for or suffered relevant symptomatology associated with a back injury or disability prior to entering active service. As such, there are no additional records to seek. Post-service medical reports of record include an April 1992 statement from Robert Selling, M.D., the appellant's private physician. Such statement indicated that he treated the appellant for a "number of years" for chronic low back pain, and that MRI and examination reports revealed no "surgically correctable lesion." He further indicated that the appellant received rehabilitative treatment at the New England Back Center for approximately one month in the Spring of 1990. Dr. Sellig's clinical records are not currently associated with the claims folder, nor are any records from the New England Back Center. However, the appellant has never asserted that such medical records are relevant to the issue of whether his current back pain is attributable to his military service. The Board's duty to assist the appellant is not "a license for a fishing expedition," nor is it a "one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances when he may or should have information that is essential in obtaining the putative evidence." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (duty to assist does not extend to determinations of whether "there might be some unspecified information which could possibly support a claim."); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), reconsideration denied, 1 Vet.App. 406 (1991). Therefore, the Board concludes that the service medical records and post-service clinical reports of record are adequate for reaching a fair, well-reasoned determination in this case; and the duty to assist the appellant in the development of facts pertinent to his claim as contemplated by 38 U.S.C.A. § 5107(a) and applicable case law has been satisfied. II. The threshold issue for resolution is whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a back disability. "New" evidence means more than evidence which was not previously physically of record; and it must be more than merely cumulative. To be "material", evidence must be relevant and probative to the issue at hand, and create a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The prior unappealed rating decision of February 1987 is final and may not be reopened, in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104 (a), 3.156 (a), 20.302(a) (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991). If the Board determines that the appellant has produced new and material evidence, the case is reopened and the case is evaluated on the merits in light of all the evidence, old and new. Manio, 1 Vet.App. at 145. Service connection is warranted for a chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). If a disorder is not shown to be chronic during service, continuity of symptomatology after discharge is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1993). The evidence which was of record prior to the RO's February 1987 rating decision may be briefly summarized. The examination upon entry into active service revealed no complaints, findings or diagnoses of a back disability. Service medical records further indicate that the appellant complained of an aching back in July 1962, and was subsequently evaluated at the orthopedic clinic. At such time, he reported a history of being struck by a car at age 14 with "some sort of back injury." The examiner then diagnosed back strain, although an accompanying x-ray of the lumbosacral spine revealed no bone or joint abnormalities other than Schmorl's changes. The appellant again complained of an aching back in September 1964, and was placed on limited duty for approximately 14 days. A strain was diagnosed. Finally, in October 1964, the appellant was treated for complaints of lower back pain after lifting a battery from a car. Upon examination, the examiner noted minimal paraspinal muscle spasms, recommended heat and mild exercises, and placed the appellant on limited duty for approximately 30 days. Upon separation from service the following month, there were no complaints, findings, or diagnoses of a back pain, a chronic back disability, or any related symptomatology found on such examination. In December 1964, the appellant filed a claim for service connection for a back disability. Such claim was denied in June 1965, as the appellant failed to report to a May 1965 scheduled VA examination. In January 1987, the appellant reopened such claim, which was denied in a rating decision dated in February 1987 on the basis that the appellant did not incur a chronic back disability during service, nor did he currently have a chronic back disability attributable to such service. Evidence which had come into the record following the final February 1987 rating decision consists of a February 1992 statement from Dr. Sellig and the contentions of the veteran. After a review of the record, the Board does not find the above evidence submitted subsequent to the 1984 rating decision to be "material" for the reasons and bases stated below. We find that these additional pieces of evidence are "new" in that they have not been considered before. However, we are of the opinion that the additional evidence is not "material" since there is no reasonable possibility that the additional evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174; Smith v. Derwinski, 1 Vet.App. 178 (1991). Dr. Sellig's statement does not contain new and material evidence that a chronic back disability was incurred in or aggravated by service. In fact, such statement does not contain a current a diagnosis of current back pathology other than back pain with associated limited range of motion, and there is absolutely no objective evidence of record attributing such current chronic back pain to the appellant's military service. Although the appellant's statements of his current back pain are probative of symptomatology, they are not competent or credible evidence of a diagnosis or medical causation of a disability, and cannot serve as a predicate to reopen the appellant's claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). Since the additional evidence does not suggest that a chronic back disability was incurred in or aggravated by service, nor does is show that a current back disability is attributable to such service, there exists no reasonable probability that the new evidence, viewed in the context of all the evidence, would change the outcome. ORDER New and material evidence for reopening a claim of entitlement to service connection for a back disability has not been submitted, and accordingly, the appeal is denied. MICHAEL D. LYON 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.