BVA9504606 DOCKET NO. 93-07 883 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Whether there was clear and unmistakable error in the October 1949 rating decision which denied service connection for rheumatoid arthritis. Whether new and material evidence has been presented to reopen a claim for service connection for rheumatoid arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from August 1948 to September 1949. This appeal to the Board of Veterans' Appeals (Board) arises from the February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which held that new and material evidence had not been presented to reopen the veteran's claim for service connection for rheumatoid arthritis and the later determination that the rating determination of October 1989 was not clearly and unmistakably erroneous. The veteran's claim was previously denied by an unappealed October 1949 rating decision. Although not listed by the RO as an appealed issue, the issue of clear and unmistakable error in prior rating decisions was addressed by the RO in the statement of the case in July 1992, which included reference to the pertinent regulation. At the veteran's personal hearing, his representative noted that the presumption of soundness was apparently not considered at the time of the 1949 rating decision. In light of these facts, the Board construes the issues on appeal to be as stated. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he incurred rheumatoid arthritis during service. The veteran asserts that he first experienced arthritis symptoms as a result of standing guard duty all night during a blizzard. He essentially contends that the October 1949 rating decision, which found that rheumatoid arthritis pre-existed service and was not aggravated by service, is erroneous. The veteran contends that he has presented new and material evidence to reopen his claim consisting of post-service treatment records, and a statement by his current physician. The veteran's representative requests that he be given a VA medical examination to determine the nature, extent and etiology of his arthritis. 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 folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the prior rating decision was well-supported by the evidentiary record and that new and material evidence has not been presented to reopen the veteran's claim for service connection for rheumatoid arthritis. FINDINGS OF FACT 1. Service connection for rheumatoid arthritis was denied by a rating decision in October 1949, which was supported by the evidence then of record, and was not appealed. 2. Records of treatment thirty years subsequent to service and the statement of the veteran's physician that he has not made a diagnosis of rheumatoid arthritis, but has treated the veteran as he would treat for osteoarthritis of the skeletal system constitute new evidence, that is not relevant and probative of the issue of service incurrence or aggravation of rheumatoid arthritis. CONCLUSIONS OF LAW 1. The October 1949 rating decision which denied service connection for rheumatoid arthritis is final, and is not clearly and unmistakably erroneous. 38 U.S.C.A. § 5107 (West 1991); Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. 2. New and material evidence has not been presented to reopen the veteran's claim for service connection for rheumatoid arthritis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records indicate that no abnormalities of the musculo-skeletal system were noted on entry into service in August 1948. In May 1949 the veteran complained of multiple joint pain; a number of studies were conducted, including sedimentation rate, which was elevated. The impression was rheumatoid arthritis and the veteran was hospitalized for treatment of acute rheumatoid arthritis in June 1949. At that time he reported a childhood history of recurrent episodes of pain, tenderness, redness, and heat in various joints, which lasted for several months each year from age five until his junior year in high school, with residual joint stiffness between attacks. In addition, the veteran reported having had occasional substernal and left parasternal pain and tenderness related to movement of the shoulders or twisting of the thorax. The veteran indicated that he had related shortness of breath, which was worst during the first two years when he also had pitting edema of the ankles. For two years prior to service the veteran was reportedly symptom free, and able to participate in strenuous athletics, following prolonged therapy with vitamins, iron and sulfa drugs. The June 1949 service examiner noted that during basic training, in December 1948, the veteran had been hospitalized for a flare up involving all joints, which lasted three days and was followed by a slight recurrence a few days later. The examiner also indicated that in approximately May 1949 the veteran had a persistent flare up involving all joints. A May 1949 X-ray report notes subchondral increase in density along the sacroiliac joints consistent with early rheumatoid arthritis. The X-ray report states that there was no evidence of arthritis in the lumbar spine. The June 1949 service examiner recorded the following clinical findings. There was a slight tendency toward fusiform swelling of the fingers. Tenderness, swelling and slight effusion were present in the right wrist, both knees, and the right ankle. There was stiffness and limitation of the motion of all joints, including the cervical vertebrae. It was noted that the veteran had constant backache. His neck was described as more stiff than painful. There was no redness or heat in any joint. The examiner's impression was rheumatoid arthritis. June 1949 X-rays disclosed no evidence of arthritic changes in the veteran's feet, ankles, knees and lumbar spine. Studies of the sacroiliac joints revealed sclerotic changes in the ilia adjacent to the sacroiliac joint. There was no narrowing or increase in the density of the sacroiliac joints and no sclerosis of the transverse processes of the first sacral vertebrae. The hip joints appeared normal. It was noted that early rheumatoid arthritis could not be ruled out, but findings were more consistent with sclerosing ileitis. The record reflects that the veteran was hospitalized from June through August 1949. On physical examination in August 1949 the examiner noted his opinion that the veteran had an acute exacerbation of chronic rheumatoid arthritis which was incapacitating for military duty and had existed prior to service. There was no evidence of rheumatic fever at that time. The August 1949 clinical diagnosis was rheumatoid arthritis, multiple, moderate, improved, cause unknown. A board of medical officers issued a certificate of disability for discharge in September 1949 stating that the veteran was incapacitated by rheumatoid arthritis as described above, with recurrent joint pain and stiffness, particularly in the right wrist and right knee joint. The certificate also indicates that rheumatoid arthritis existed prior to service, with onset in 1933. At the time the veteran filed his initial claim for service- connected compensation benefits for rheumatoid arthritis, in 1949, he reported that he had had rheumatic fever at an early age, but had been in excellent health for 2 full years before service. He stated that his duties in service were located in climates unsuited to his health and, therefore, Army life aggravated existing tendencies. Based on the evidence above, the rating decision of October 1949 denied service connection for chronic rheumatoid arthritis on the basis that such disorder was aggravated in service. Subsequently in January 1950 additional service medical records were received. It is difficult to specify what this envelope contained since all service medical records have been commingled. However, these records were reviewed and the denial of service connection for rheumatoid arthritis was confirmed by rating decisions in January 1950. Also of record is an April 1984 report of the veteran's treatment at a VA Medical Center (VAMC) for unrelated medical problems. The report notes that he was then taking aspirin every four hours for arthritis in his back; x-ray study showed degenerative osteoarthritic changes. There were no findings related to rheumatoid arthritis. Private medical records covering October 1982 through September 1988 indicate that Feldene, an arthritis medication, was prescribed several times during 1985 to 1987. In December 1982 a private medical doctor noted that the veteran reported left knee pain of uncertain etiology, without warmth or swelling. At his October 1992 personal hearing the veteran testified under oath that he was never diagnosed with rheumatoid arthritis prior to service. He reported that from age five through his junior year in high school, he had recurrent episodes of rheumatic fever, from which he was completely recovered before entering the service. The veteran reportedly experienced sore throat and fever after standing guard all night in a blizzard, while stationed in San Antonio, Texas. Shortly thereafter he was transferred to work at Walter Reed Hospital in Washington, D.C. While working at Walter Reed the veteran was hospitalized with painful, swollen joints diagnosed as rheumatoid arthritis. The veteran expressed the opinion that standing guard duty in the cold caused his arthritis. He testified that the symptoms he experienced in service, which were diagnosed as rheumatoid arthritis, were unlike his childhood symptoms. He stated that his joint swelling was far greater as a child and he also ran a higher fever. The chief symptoms in service reportedly were joint pain and stiffness. The veteran testified that he received treatment for arthritis after leaving the service. He stated that he was currently taking Feldene. No doctor has reportedly told him that he has rheumatoid arthritis resulting from childhood rheumatic fever. Also, noted above, the veteran's representative argued at his personal hearing that the presumption of soundness at service entry has never been considered. Subsequent to his personal hearing the veteran submitted an October 1992 statement by his private physician, Dr. Robert F. Getty, which asserts that rheumatic fever and rheumatoid arthritis are not the same disease or truly even related. The statement reports that the veteran has had arthritic symptoms in multiple areas of his body for as long as he has been under the doctor's treatment. Dr. Getty also stated that he has not diagnosed the veteran with rheumatoid arthritis, but has treated him as if he had osteoarthritis of the skeletal system. He asserted that rheumatoid arthritis and osteoarthritis can be confused. The veteran's representative, in statements received in March and July 1993, has requested consideration of the provisions of 38 C.F.R. § 3.304(b) and (b)(3), and has requested that the veteran be afforded an examination to determine whether he now has rheumatoid arthritis. Finality of the October 1949 Rating Decision Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). A pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 Absent the filing of a notice of disagreement and a substantive appeal within one year of the date of mailing of the notification of the denial of a veteran's claim, a rating determination is final. A final rating decision is not subject to revision on the same factual basis in the absence of clear and unmistakable error. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. Where evidence establishes such error, the prior decision will be reversed or amended. The standard for application in the Board's review of the prior rating decision requires that error, otherwise prejudicial, must appear undebatable. Akins v. Derwinski, 1 Vet.App. 228 (1991). Clear and unmistakable error means that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Either the correct facts, as known at the time were not before the adjudicator, or the statutory and regulatory provisions extant at the time were incorrectly applied. Id. at 313. The United States Court of Veterans Appeals has held that a case in which a medical diagnosis corrects an earlier diagnosis ruled upon by previous adjudicators would not constitute an instance of clear and unmistakable error. Id. at 314. The Board finds no error in the October 1949 rating decision, which was supported by a medical board determination that the veteran suffered from rheumatoid arthritis which pre-existed service. That determination was based on a detailed history elicited from the veteran, and extensive laboratory and clinical findings. Although no notation of rheumatoid arthritis was made on the entry examination, the opinion of the examining physicians who treated him within months of entry onto active duty must be given great weight. Their finding, that rheumatoid arthritis existed prior to service, constitutes clear and unmistakable evidence which rebuts the presumption of soundness at entry. 38 C.F.R. § 3.79 (1949). Moreover, their finding that in service he experienced an acute exacerbation of pre-existing disease, which was not "aggravated by active service" (per the Certificate of Disability for Discharge) supports the determination that there was no increase in basic pathology of the pre-existing rheumatoid arthritis. Although the veteran disagrees with the conclusion that he had rheumatoid arthritis prior to service, and asserts that his arthritis resulted from exposure to cold weather, he cannot, as a lay person, make a diagnosis or offer evidence requiring medical knowledge, such as assertions regarding medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, he has presented no objective medical evidence to contradict the medical board's determination. Accordingly, the Board finds that there is no basis to find that the October 1949 rating decision which denied service connection for rheumatoid arthritis is clearly and unmistakably erroneous, and that decision need not be reversed or amended. New and Material Evidence to Reopen the Veteran's Claim for Service Connection for Rheumatoid Arthritis Although a rating decision is final, the claim will be reopened upon presentation of "new and material evidence." 38 U.S.C.A. § 5108. If new and material evidence has been received, the second step, involving a de novo review of all the evidence, both old and new, is to be undertaken to determine if there is a basis for granting the claim. A determination of whether evidence is "new and material" so as to warrant reopening of the veteran's previously denied claim must be based upon all the evidence submitted since the final denial, rather than only upon evidence received after subsequent refusal to reopen the claim for lack of new and material evidence. Glynn v. Brown, 6 Vet.App. 523 (1994). "New" evidence is that which is not merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95, 98 (1993). "Material" evidence is that which is relevant to and probative of the issue at hand and which is of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, new and old, would change the outcome. Id. In determining the issue of new and material evidence the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Court of Veterans Appeals has determined that the benefit of the doubt rule operates to lower the threshold of whether new and material evidence is sufficient to change the outcome of a case. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence presented by the veteran consists of the records of VA and private medical treatment many years subsequent to service, which show that medications were prescribed and taken for arthritis, in addition to statements by the veteran's current physician, Dr. Getty, that he has not made a diagnosis of rheumatoid arthritis, and that rheumatic fever and rheumatoid arthritis are unrelated, but easily confused, diseases. These documents are new evidence in the sense that they are not duplicative of evidence previously of record. However, the new evidence presented by the veteran relates to treatment and events which occurred more than thirty years after the veteran's separation from service. (See Statement by the veteran, January 1992). The additional evidence does not provide objective medical evidence relating to the service incurrence or aggravation of rheumatoid arthritis, and is not relevant and probative of the issue of service connection for rheumatoid arthritis. Although a new diagnosis correcting an earlier diagnosis relied upon in a prior rating decision may constitute new and material evidence to reopen a claim, Russell v. Principi, 3 Vet. App. 310, 314 (1992), the veteran's physician, Dr. Getty, has not made such a diagnosis. The doctor indicates only that he has treated the veteran as he would treat for osteoarthritis, and advises that rheumatoid arthritis and osteoarthritis can be confused. The contentions of the veteran's representative, to the effect that consideration should be given to the provisions of 38 C.F.R. § 3.304(b)(3), and that he should be afforded a VA examination to determine whether he now has rheumatoid arthritis are inapt. First, the file contains no signed statement by the veteran regarding the origin or etiology of his arthritis which is against his own interest. Such a statement would, by regulation, be of no effect, but no such statement is of record. Second, the Board finds no reason to remand this case in order to determine whether the veteran now has rheumatoid arthritis. The basic issue in thus case is whether new and material evidence has been presented to reopen the veteran's claim. Such evidence must bear directly on whether rheumatoid arthritis was incurred in or aggravated by active service. An examination showing the current status of the veteran's arthritis, more than 40 years after separation from service, would add no useful information regarding service incurrence or aggravation of rheumatoid arthritis, and, so, would not be pertinent at this time. Accordingly, the Board finds that no new and material evidence has been presented to reopen the veteran's claim for service connection for rheumatoid arthritis. ORDER The October 1949 rating decision which denied service connection for rheumatoid arthritis is final, and not clearly and unmistakably erroneous. No new and material evidence has been presented to reopen the veteran's claim for service connection for rheumatoid arthritis which remains denied. N. R. ROBIN 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.