BVA9502688 DOCKET NO. 93-11 138 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran had active duty for training from August 1961 to February 1962 and active service from August 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 1993 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which determined that new and material evidence had not been submitted to reopen the claim for service connection for a back disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that he hurt his back several times while he was in the service. He states that in Vietnam he was part way down a 40 foot water tank in Vietnam tightening bolts with a ratchet when he fell, landed on his buttocks, and was subsequently evacuated to the 85th Medivac Hospital, where he was taped with wide tape around his waist and chest for an injury to his spine. He further contends that while riding in a truck from the compound to the rock quarry to do some welding on a rock crusher, an oxygen tank knocked him off the back of the truck, hitting him in the back. Since then, he has not been able to retain employment as a construction worker. 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 new and material evidence sufficient to reopen a claim for service connection for a back disorder has not been submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The RO denied service connection for a back disorder in August 1971, and the denial was upheld by the Board in October 1972. 3. Evidence associated with the claims file subsequent to the October 1972 Board decision is not relative or probative to the issue of service connection for a back disorder and would not change the outcome of the case. CONCLUSIONS OF LAW 1. The October 1972 decision of the Board of Veterans' Appeals which denied service connection for a back disorder is final. 38 U.S.C.A. § 7103 (West 1991); 38 C.F.R. § 20.1100 (1993). 2. Evidence received subsequent to the October 1972 Board decision is not new and material and the claim for service connection for a back disorder has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 20.1105 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Board notes that the veteran's petition to reopen his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran originally filed a claim for service connection for a back disorder in July 1971. The RO denied this claim in August 1971, and the Board upheld the prior denial in October 1972. In December 1976, the veteran requested a nonservice connected pension because of a back disorder, but this claim was denied in April 1977 and in February 1979. Subsequently, the veteran submitted requests that both his claim for service connection for a back disorder and his claim for a nonservice connected pension be reopened. The RO issued confirmed denials as to both claims in January 1987, February 1987, and October 1990. The RO confirmed its denial of the pension claim in June 1991. When the case was appealed, the Board remanded it for further development in October 1972. An RO decision in July 1992 found that the veteran was permanently and totally disabled and granted a nonservice connected pension. A request to reopen the claim for service connection for a back disorder was denied in January 1993. II. Analysis Under governing law and regulations, a decision of the Board or an unappealed RO decision is final, and the claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1103, 20.1105 (1993). 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 the 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 (1993). In order for a claim to be reopened and the entire record reviewed, the evidence must be "new" and "material." See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); Jones v. Derwinski, 1 Vet.App. 210, 214 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the United States Court of Veterans Appeals stated that new evidence may not be merely cumulative of other evidence on the record. To be material, evidence must be relevant and probative. Rule 401 of the Federal Rules of Evidence defines relevant evidence as "[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Additionally, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. The United States Court of Veterans Appeals has held that when determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial on the merits. See Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Accordingly, the Board has reviewed all of the evidence submitted relevant to the issue of service connection for a back disorder since the Board denial of October 1972. Evidence submitted since the October 1972 denial consists of the following: (1) an excerpt from outpatient treatment records, dating from May 1976 to June 1976, from the Knoxville Orthopedic Clinic; (2) personal statements dated in May 1973 and in February 1977 from the veteran's friends and employer; (3) a March 1977 VA disability evaluation examination, with attachments, from the VA Hospital in Knoxville, Tennessee; (4) outpatient treatment records, dating from October 1978 to January 1979, from Archer W. Bishop, Jr., M.D., of Gallivan, Coughlin, Bell, and Hovis, P.C., in Knoxville, Tennessee; (5) an operative report, clinical notes, and correspondence, dating from September 1985 to January 1987, from Loyd R. Van Deventer, M.D., an orthopedic surgeon in Wichita Falls, Texas; (6) a January 1987 letter from George B. Brooks, D.O., of the Medical Associates of Carter, in Knoxville, Tennessee; (7) a hospital admission report, operative report, and clinical notes, dating from May through August 1990, from David B. Kee, Jr., M.D., of the Coastal Neurological Surgery in Myrtle Beach, South Carolina; (8) a Physical Capacities Evaluation, dated in November 1990, from David B. Kee, Jr., M.D.; (9) the veteran's substantive appeal, received in August 1991; (10) a June 1992 VA Rehabilitation Medicine Service consultation; and (11) a June 1992 VA disability evaluation examination, with attachments, from the VA Medical Center in Mountain Home, Tennessee. The Board points out initially that all of the above evidence is new in that it had not been previously seen by the Board in relation to its October 1972 decision. It must next be determined whether it is relevant and material to the issue of service connection for a back disorder. As a preliminary observation, the Board notes that none of this evidence is contemporaneous with the veteran's service. Item (1), outpatient treatment records, reveal that the veteran sustained a work-related injury to his neck and low back when he slipped as he was pushing a wheel-barrow up a bank. This injury occurred several years after the veteran's separation from service and is not material or probative to the issue of service connection for a back disorder. Item (2) consists of a number of letters from friends and associates of the veteran attesting to the fact that he had a bad back. [redacted], in May 1973, stated that while the veteran was riding on a truck in service, a large oxygen cylinder had fallen on him, hitting him between the shoulders. The veteran was put in sick bay with no duty activities for a week and then was placed on limited duty for two weeks. He later had to sleep on a bed board. A letter to the same effect was written on the same date by [redacted]. In February 1977, Jerry Upchurch of the State of Tennessee Employment Security stated that he had interviewed the veteran and, based on the veteran's statements of his current physical condition, he believed him to be unemployable. Other individuals, in letters dated February 1977, stated essentially that the veteran had had back trouble ever since he got out of the service and had not able to hold a job in construction due to physical limitations. [redacted], of [redacted]& Company, also in February 1977, revealed that he had employed the veteran both before service and afterwards, but had had to release him from employment because the insurance company would no longer carry him. Mr. [redacted] noted that the veteran could not perform his work without showing extreme physical effort. Although the May 1973 letters mention personal knowledge of an incident in service relating to a back injury, these witnesses are not physicians and are thus not capable of forming a correct judgment as to whether the veteran's current chronic back disorder had its origin in service. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The February 1977 statements were made several years after the veteran's discharge from service and subsequent to at least one on-the-job injury. They do not establish a nexus between his symptoms at that time and an incident or incidents in service. Lay assertions of medical causation will not suffice to serve as a predicate to open previously disallowed claim. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Therefore, the Board finds that the letters comprising Item (2) are not probative to the issue of service connection. Item (3), the March 1977 VA disability evaluation examination, reveals a reported history of injuries to the veteran's neck and back in an automobile accident in 1967. He had been hospitalized for 12 weeks. The Board notes that the veteran was not in the service at the time the accident was reported to have occurred. Although the veteran also reported several episodes of back strain in service, the examiner did not comment on the etiology of the current disorder. Dr. Bishop's records, Item (4), and Dr. Van Deventer's records, Item (5) chronicle extensive treatment for on-the-job injuries in October 1978 and in September 1985, respectively. No reference whatsoever was made to any injury in service. Item (6), the letter from Dr. Brooks, describes continuing treatment for the 1985 injury. Similarly, Items (7) through (11) make no reference to any incident in service. Thus, the Board finds that these documents are not material to the issue of service connection. Since the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine does not apply in this case. See Annoni v. Brown, 5 Vet.App. 463 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Accordingly, the Board finds that the additional evidence submitted by the veteran to reopen his claim for service connection is not new and material, and thus, not sufficient to reopen his claim. ORDER New and material evidence not having been submitted to reopen a claim for service connection for a back disorder, service connection for this disorder is denied. WARREN W. RICE, JR. 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.