BVA9500830 DOCKET NO. 93-04 730 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen claims for service connection for a back disability, bilateral foot disability, bilateral leg disability, and lung disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from March 1951 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 decision of the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO), which found that no new and material evidence had been submitted to reopen previously denied claims of service connection for a back disability, bilateral foot disability, bilateral leg disability, and a lung disorder. The veteran testified at a hearing conducted before a member of the Board in February 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his back, bilateral foot, bilateral leg, and lung disorders began during active service. He attributes his disabilities of the back, legs and feet, including varicose veins in the lower extremities, to injuries sustained while on active duty, and he claims that he has had recurrent problems ever since. He further asserts that an in-service episode of pneumonia resulted in permanent damage to his lungs. He indicates that he has received treatment for the disabilities at issue over the years since his separation from service. 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 no new and material evidence has been submitted to reopen claims for service connection for back, bilateral foot, bilateral leg, and lung disabilities. FINDINGS OF FACT 1. By an unappealed RO decision in January 1989, service connection for a back disability, bilateral foot disability, bilateral leg disability, and lung disorder was denied. 2. Evidence received subsequent to the January 1989 RO decision is either redundant and cumulative of evidence earlier on file, or not relevant and probative and, when considered in the context of all the evidence of record, raises no reasonable possibility of a change in the January 1989 RO decision. CONCLUSION OF LAW The additional evidence received subsequent to the January 1989 RO decision, which denied service connection for back, bilateral foot, bilateral leg, and lung disabilities, is not new and material; the claims are not reopened; and the January 1989 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist The only service medical record on file is a report of a discharge examination performed in March 1954. In response to a request from the RO, the National Personnel Records Center (NPRC) reported in January 1988 that the veteran had "fire-related service," meaning that his service medical records were apparently destroyed in the fire that occurred there in 1973. In response to a second request from the RO, the NPRC reported in January 1989 that a Surgeon General's Office record search failed to disclose any additional records. The veteran has alleged treatment in the years following service, but at his February 1993 Board hearing he indicated that related records are unavailable. It appears that all possible sources of additional relevant evidence have been exhausted, and the VA has fulfilled its duty to assist the veteran in developing evidence pertinent to the pending issue. 38 U.S.C.A. § 5107(a). Consequently, the matter on appeal has been reviewed based on the evidence of record. II. Factual Background An RO decision in January 1989 denied service connection for back, bilateral foot, bilateral leg, and lung disabilities. The decision was not appealed within the subsequent one-year time frame, and thus became final. In July 1991 the veteran applied to reopen his claim. Evidence on file at the time of the January 1989 RO decision included a report of a service discharge examination performed in March 1954. A chest X-ray performed at that time was reported to show essentially normal lungs. The lungs, spine, lower extremities, and feet were clinically normal. Also found to be normal was the cardiovascular system, including absence of varicosities. Other evidence on file at the time of the January 1989 RO decision consisted of several reports of physical examinations of the veteran performed from 1976 to 1978, and a notice of an award of Social Security Administration (SSA) disability benefits, effective in 1976, pursuant to a 1978 decision by an Administrative Law Judge (ALJ). History obtained from the veteran by L. J. Clanton, M.D., during November 1976, reported in a letter of December 1976, included the veteran working in a shipyard from 1962 to 1976; several episodes of pneumonia, including in early childhood and a bout while in Korea; an old back injury sustained in Korea; and a hospitalization in April 1969 which, following an extensive workup, resulted in a diagnosis of chronic pulmonary disease. Clinical findings by Dr. Clanton in 1976 included dyspnea on slight exertion. A chest X-ray at that time was reported to reveal some acute and chronic hilar inflammatory changes. Pulmonary function studies revealed severe restrictive and obstructive ventilatory insufficiency. Dr. Clanton's diagnoses included chronic obstructive pulmonary disease (COPD). Following clinical and X-ray examinations of the veteran in February 1978, Max L. Alumbaugh, D.O., reported, in a March 1978 letter, numerous diagnoses, including bilateral emphysema with pleural thickening of both lungs and Grade IV bilateral flat feet. Following clinical and X-ray examinations in February 1978, Earl M. Woodson, M.D., reported numerous diagnoses, including chronic bronchitis, emphysema, thickening of the pleura of the right and left chest, and severe bilateral flat feet. The spine was normal on clinical examination. Also of record at the time of the January 1989 RO decision were reports of VA medical and X-ray examinations of the veteran in June and July 1979, which resulted in a clinical diagnosis of degenerative arthritis of the lumbar spine (an X-ray examination of the lumbar spine was reported as normal), chronic bronchitis and emphysema, bilateral pes planus, and bilateral varicose veins. A May 1987 VA hospital summary shows treatment for conditions not in issue. In a statement dated in August 1987, Howard D. Clark, M.D., reported that the veteran had been his patient for the past 18 months and had severe varicose veins, emphysema and acute arthritis with frequent episodes of edema and shortness of breath. Evidence received since the January 1989 RO decision includes a clinical summary dated in July 1982 pertaining to Dr. Woodson's February 1978 examination of the veteran (see above); a SSA-ALJ decision entered in November 1983, which continued previously awarded SSA disability benefits (which had been terminated in 1982) on the basis of several disabilities, including chronic venous insufficiency of the lower extremities (the decision also refers to recent medical evidence of a lung condition); a discharge summary pertaining to a VA hospitalization from November to December 1982 for disabilities not at issue; a duplicate of Dr. Clark's August 1987 statement; a discharge summary pertaining to a VA hospitalization in December 1990, primarily to rule out a myocardial infarction; and VA outpatient clinic records dated in May and June 1991, which are negative for any pertinent findings. Additional evidence submitted subsequent to the January 1989 RO decision also includes a transcript of personal hearing testimony presented by the veteran before a member of the Board in February 1993. He said that he sustained back trauma in 1951 during basic training, which he claimed resulted in a disc injury, and he said that he has had low back problems ever since. He recalled that he had an episode of double pneumonia in early 1952 while stationed in Korea. He said he was treated for approximately one week and returned to duty but, 2 to 3 months later, developed another episode of bronchial pneumonia. He said that he has had recurrent lung problems, including bronchitis and emphysema, ever since he had the in-service episodes of pneumonia. He also related that he was treated for additional bouts of pneumonia during the years immediately after service, and he recalled that he was told during that time that X-rays showed scars all over his lungs from previous pneumonia. The veteran further testified that he sustained bilateral foot injuries during service as the result of the rigors of basic training. He said that varicose veins in his legs and feet began during that time. He described recurrent problems with his back, legs, feet and lungs over the years since his separation from service. He asserted that he received treatment for all of the disabilities at issue at various times since his separation from active duty, but his attempts to obtain the treatment records were unsuccessful as the records in the years proximate to service were no longer available. III. Analysis In an unappealed January 1989 decision, the RO denied service connection for back, bilateral foot, bilateral leg, and lung disorders. Unappealed rating decisions of the RO are final, with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. The question now presented is whether new and material evidence has been submitted since the prior adverse decision on these conditions which would permit reopening of the claims. Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative of the issue at hand and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1991). The January 1989 RO decision noted above considered the veteran's statements in support of his claims, the only service medical records available (the discharge examination), a notice of an award of SSA disability benefits effective in 1976, and both private and VA post-service medical records dated from 1976 to 1987. The evidence then available showed no chronic disabilities of the back, either foot, either leg, or lungs during service or thereafter until the mid to late 1970's. While the absence of complete service medical records obviously was through no fault of the veteran, there was also an absence of any pertinent abnormal findings during a period of more than 20 years following his separation from active duty. The only relevant in-service history recorded more than 20 years later was an episode of pneumonia and a back injury during service, but the examiner, Dr. Clanton, did not link the veteran's lung or a back disability, or any other disabilities, shown in 1976 to any incident of service, nor did any of the other private and VA physicians who examined the veteran. The additional evidence received subsequent to the January 1989 RO decision consists of Dr. Woodson's July 1982 clinical summary, which is redundant or cumulative of his previously considered February 1978 examination report; a discharge summary pertaining to a VA hospitalization during the latter part of 1982 for disabilities not at issue; a SSA ALJ's decision in November 1983, which noted chronic venous insufficiency and lung diseases, but did not refer to any medical evidence linking them to any incident of service; Dr. Clark's August 1987 statement, which was previously considered by the RO; a discharge summary from a VA hospitalization in December 1980; VA outpatient clinic records dated in 1991, and a November-December 1982 VA hospital summary, which are negative for any pertinent abnormal findings; and a transcript of testimony presented by the veteran before a member of the Board in February 1993. The additional medical evidence from years after service contains much information not relevant to the disabilities at issue and some cumulative and redundant information pertaining to previously diagnosed conditions documented at the time of the 1989 RO decision. While some of the evidence is new, none of it is material, since it only documents the conditions years after service without linking them to incidents of service. Cox v. Brown, 5 Vet.App. 95 (1993). As far as the veteran's testimony in February 1993 is concerned, the Board finds that this is not new evidence since he made many of the same assertions that the disabilities in question began during service at the time of his earlier claims. Reid v. Derwinski, 2 Vet.App. 312 (1992). He did present more specific information as to his alleged injuries and treatment while on active duty but, even if this is considered new evidence, it is not material, because, when viewed in the context of all the evidence (including medical records showing none of the conditions as chronic in service, and no continuity of symptoms for years after service), the testimony lacks sufficient weight or significance to raise a reasonable possibility of a change in the 1989 RO decision. Kates v. Brown, 5 Vet.App. 93 (1993). In view of the foregoing, the Board finds that the evidence that has been submitted subsequent to the January 1989 RO decision is not new and material, within the meaning of the cited legal authority. It follows that the claims for service connection for a back disability, bilateral foot disability, bilateral leg disability, and lung disorder are not reopened, and the January 1989 RO decision remains final. ORDER New and material evidence not having been submitted, the application to reopen claims for service connection for a back disability, bilateral foot disability, bilateral leg disability, and lung disorder is denied. L. W. TOBIN 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.