Citation Nr: 0004244 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 97-05 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from January 1967 to January 1969. This appeal to the Board of Veterans' Appeals (Board) arises from the June 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran's application to reopen his claim for service connection for multiple sclerosis on the basis of new and material evidence. On preliminary review of the record it is noted that in his substantive appeal received in October 1996 the veteran raised a claim of clear and unmistakable error in the July 1992 rating action which denied the veteran's previous claim of clear and unmistakable error in the December 1979 rating action denying service connection for multiple sclerosis. The newly raised issue has not been adjudicated by the agency of original jurisdiction. Further, as described below, the record reflects that the RO denied service connection for a right knee disorder in December 1979, but the veteran was not notified of the denial of that claim, which remains pending. Inasmuch as neither of these issues is "inextricably intertwined" with the issue currently on appeal, they will not be addressed herein, but are referred to the RO for prompt appropriate action. FINDINGS OF FACT 1. The veteran's application to reopen his claim for service connection for multiple sclerosis was denied by a rating decision in August 1992. 2. The veteran was notified of the August 1992 rating decision by letter in September 1992 and was advised of his appellate rights. 3. The veteran did not file a timely notice of disagreement with the August 1992 decision within the allowable period of one year following notification. 4. The evidence added to the record subsequent to the August 1992 rating decision includes VA medical records dated in 1996 and 1997 which are essentially duplicative of evidence previously considered. CONCLUSION OF LAW Evidence submitted since the August 1992 RO decision, which denied an application to reopen a claim of service connection for multiple sclerosis, is not new and material; the claim is not reopened, and the August 1992 RO decision remains final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records are negative for complaints, findings, or diagnosis related to multiple sclerosis or olivopontocerebellar atrophy. Received in July 1979 was the veteran's claim for service connection for a right knee disability, which was denied by the RO in August 1979. Of record is a statement in support of claim signed by a private medical doctor and dated in September 1979, which reflects that the right leg was weak since 1971, and the right knee was inflexible when walking recently. It was further noted that there were clinical signs of a spinal cord disease, the etiology of which remained to be determined. Appropriate neurological tests were said to have been scheduled. The denial of service connection for right knee disorder was confirmed by a rating action in September 1979. Received in October 1979 was a lay statement signed by a former co-worker who related that the veteran had exhibited a pronounced limp when they worked together in September 1969. Also of record is a statement signed by Laurence M. Weinberg, M.D., who related that when the veteran was first seen by the doctor in August 1979 his complaints included a problem with buckling of the right knee of approximately three to four years duration, as well as atrophy of the right leg and spasticity of both lower extremities. The diagnosis was most likely multiple sclerosis; possibly primary lateral sclerosis. By a rating action in December 1979 the RO denied service connection for a right knee disorder and for multiple sclerosis. However, the record reflects that the veteran was not notified of the denial of his claims which therefore remained pending. VA Agent Orange examination conducted in April 1985 reflected a diagnosis of multiple sclerosis with spastic paresthesias and dysarthrias. A rating action in June 1985 denied entitlement to service connection for multiple sclerosis claimed as secondary to herbicide exposure. Received in February 1987 were private medical records from Group Health Association, dated in April 1983 to October 1984 which reflected treatment for symptoms referable to the entire right lower extremity, and attributed to spastic paraparesis and probable multiple sclerosis. In September 1983 the veteran gave a history of multiple sclerosis for approximately 3 to 4 years. By a rating action in March 1987 the RO again denied service connection for multiple sclerosis. The veteran was notified of the denial of service connection for multiple sclerosis and advised of his appellate rights by letter dated in March 1987, but he did not file a timely appeal of the determination. Received in August 1992 were additional private medical reports dated in December 1972 to November 1980. The report of a physical examination in December 1972 reflected no abnormalities. Clinical records dated in November 1976 indicate the veteran reported that his right leg had always been thinner than the left. Clonus was noted in the right ankle. In a September 1979 statement Elliott C. Wilner, M.D., related that the veteran was seen in August 1979 for neurological consultation. Dr. Wilner further recorded that the veteran had been in good health until 1968 while serving in Vietnam, when he had experienced intermittent low back pain accompanied by right leg weakness. Reportedly the veteran did not experience any further symptoms until 1971 or 1972, when he noted weakness and giving way in the right leg. At the time of the report in August 1979 the veteran complained of an inability to bend his right knee when walking. The doctor concluded that the veteran was handicapped by considerable spasticity and slight weakness in the right lower extremity and was suffering from primary lateral sclerosis or multiple sclerosis, with clinical findings favoring the latter diagnosis. Additional clinical records dated in September 1979 to November 1980 reflect evaluation and treatment for symptoms attributed to probable multiple sclerosis. The veteran's application to reopen his claim for service connection for multiple sclerosis was denied by a rating action in August 1992. The veteran was notified of that decision by letter dated in September 1992 and advised of his appellate rights, but he did not initiate a timely appeal of the determination. The report of a VA examination conducted in April 1997 reflects the veteran's statement that he first sought medical attention for his developing symptoms in approximately 1979. Physical examination revealed the patient was alert and cooperative, and markedly dysarthric. He had bilateral ptosis. Extraocular movements were intact. There was moderate ataxic tremor in both arms and legs. There was marked spasticity in the legs with decreased vibratory sensation distally in the legs. The veteran had bilateral Babinski's and brisk deep tendon reflexes except for diminished ankle reflexes. The final diagnostic impressions were hereditary olivopontocerebellar atrophy with limb ataxia, spasticity, dysarthria, and diminished sensation. Received in October 1997 were VA outpatient treatment records dated in August 1996 to August 1997 reflecting current treatment for the veteran's olivopontocerebellar and related conditions. New and Material Evidence Analysis In March 1987 the RO denied the veteran's claim of service connection for multiple sclerosis. The veteran did not appeal that decision, which is final. 38 U.S.C.A. §§ 20.200, 20.1103 (1999). In an August 1992 decision the RO denied the veteran's application to reopen his claim of service connection for multiple sclerosis. The veteran received written notification of that action by letter in September 1992 and, as he failed to file a timely appeal therefrom, the decision became final and is not subject to revision on the same factual basis. Id. The claim, however, will be reopened if new and material evidence has been submitted since the last final decision on the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The issue of new and material evidence must be addressed in the first instance by the Board because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Under applicable regulation: [n]ew and material evidence means evidence not previously submitted to agency decisionmakers 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 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). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Evans v. Brown, 9 Vet. App. 273 (1996). It should also be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") held that a three step process is required for reopening claims under the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In its June 1996 determination that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for multiple sclerosis, the RO applied the standard set forth in the decision of the U.S. Court of Veterans Appeals in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This test required that, in order to reopen a previously denied claim, "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 at 174. The Board notes, however, that in a recent decision, Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that in the Colvin decision, the Court impermissibly ignored the definition of "material evidence" adopted by VA (in 38 C.F.R. § 3.156) as a reasonable interpretation of an otherwise ambiguous statutory term (38 U.S.C.A. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different benefits scheme. The decision in Hodge stressed that under the regulation new evidence that was not likely to convince the Board to alter its previous decision could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge, at 1363. Hence, the Federal Circuit overruled the Colvin test for purposes of reopening claims for the award of veterans' benefits. In view of the recent decision by the Federal Circuit in Hodge, the veteran's application to reopen the previously denied claim for service connection for multiple sclerosis must be analyzed under the definition of new and material evidence provided at 38 C.F.R. § 3.156(a) (1998), rather than the standard set forth in Colvin. In May 1999 the RO reviewed all the evidence received since the prior denial of service connection in 1992 and it was determined that the veteran's additional evidence did not constitute new and material evidence to reopen his claim inasmuch as it was cumulative evidence, which essentially duplicated evidence previously considered. It is noted that the RO incorrectly stated the Colvin standard for new and material evidence, as well as the regulatory definition, in the supplemental statement of the case issue in May 1999. However, the veteran was not prejudiced by this harmless error, inasmuch as the denial of his application to reopen his claim was based upon the conclusion that his additional evidence was cumulative of evidence previously considered. Therefore application of the Colvin test for materiality of new evidence was not implicated. Thus, the question that must be resolved now is whether the items of evidence added to the record since August 1992, consisting of VA treatment reports from August 1996 to August 1997, meet the test for new and material evidence found in 38 C.F.R. § 3.156. The VA reports of August 1996 to August 1997 reflect evaluation and treatment for current disability, diagnosed as olivopontocerebellar atrophy, and related conditions. Inasmuch as these records reflect the only the presence of disability many years after separation from service, they are essentially duplicative of evidence which was previously of record and considered in the prior denial. At he time the claim was finally denied in August 1992, the record already included many medical reports showing that the veteran was undergoing treatment for serious neurological disorders. For this reason, the 1996 and 1997 medical reports add nothing significant to the record. These reports are merely cumulative. Therefore, it is determined that the veteran's additional evidence does not constitute new and material evidence, under the regulatory definition set forth at 38 C.F.R. § 3.156, and the claim for service connection for multiple sclerosis is not reopened. ORDER The claim for service connection for multiple sclerosis is not reopened; new and material evidence not having been presented. G. H. SHUFELT Member, Board of Veterans' Appeals