BVA9504876 DOCKET NO. 93-11 433 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a back condition has been submitted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from May 1949 to October 1952. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 1992 rating decision of the Houston, Texas, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that he has submitted evidence which is sufficient to reopen and establish entitlement to service connection for a back disorder. 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 the claim to service connection for a back disorder has not been presented. FINDINGS OF FACT 1. The appellant's claim to service connection for a back disorder was denied by VARO in October 1964. The appellant was notified of that decision in October 1964; no appeal was filed within one year of that notification and that decision became final. 2. In June 1991, the appellant requested that VARO reopen his claim to service connection for a back condition; he subsequently submitted three lay statements and copies of news articles dated 1946 and 1947 in support of his claim. 3. The evidence presented by the appellant since the VARO rating decision dated October 1964, while new, does not tend to establish a relationship between the appellant's current back condition and his period of service. CONCLUSION OF LAW New and material evidence sufficient to reopen the claim for service-connection for a back condition has not been submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As indicated above, the appellant's claim for service connection for a back disorder was denied by the VARO in October 1964. That decision is final. Evidence of record at the time of that decision included service medical records which reflect that the appellant was seen for low back pain in March, April, and June 1951. In March 1951, the appellant reported low back pain after carrying patient litters; an x-ray study revealed an old compression fracture of the T12, L1, and L2, and an orthopedic consultation noted osteoarthritis. In April 1951, back pain along with pain radiating down the leg was noted. In June 1951, the appellant reported having back pain since 1949 which was possibly related to a football injury in 1945 or 1946; there were no neurological deficits, and clinical findings were negative for arthritis, scoliosis, and point tenderness. On the service separation examination in October 1952 the appellant indicated he was in "excellent" health and noted having arthritis; on the report of examination, the physician noted that the appellant had an old fracture of the spine but absent any significant abnormality. VARO also considered the VA examination conducted in October 1964. On VA examination in October 1964, the appellant complained of back pain radiating in to the legs. By history, his back pain was related to carrying patients on litters during service. Clinical findings were essentially unremarkable except for a slight increase in the lower dorsal kyphosity, and some midline tenderness over the middle and lower dorsal spine. The appellant was diagnosed with minimal hypertrophic arthritis of the dorsal spine. In May 1977, the appellant was awarded non service connected pension benefits from the VA for a debilitating back injury that occurred during work. It was noted that the appellant was also in receipt of Worker's Compensation Benefits. The record reflects that the appellant sustained an injury to his thoracic and lumbar spine while lifting 100 pound feed sacks at work. Private treatment reports dated July 1975 to March 1977 reflect that the appellant underwent two laminectomies, in 1975 and 1976, as a result of that injury. In June 1991, the appellant requested that VARO reopen his claim for service connection for a back disorder. In support of his claim, the appellant submitted three lay statements from family members and copies of newspaper articles dated 1946 and 1947 from his home town in Flora, Illinois. In each of the lay statements, the family member indicated that she could not recall the appellant having sustained any injury during a football game in high school. The copies of the news articles, which chronicled the high school football games, did not show that the appellant ever sustained a back injury. On the basis of this new evidence, the appellant requests service connection for his back condition. Analysis As indicated above, the appellant's claim for service connection for a chronic back disability was denied by VARO in October 1964. That decision is final. Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals (the Court), the Board may reopen and review a claim which has been previously denied by it only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means evidence which is not merely cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, leads to a reasonable possibility that the new evidence, when viewed in context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). The Board finds that the evidence submitted since VARO denied service connection for a back condition in October 1964, while new, is not material to the issue of service connection. The lay statements, the news articles, and the appellant's statements do not suggest the necessary relationship between the appellant's back condition and his period of service to support reopening his claim for service connection. In particular, the evidence does not tend to show that the appellant had a chronic back condition etiologically related to service with continuity of symptomatology after discharge, nor does it tend to show that the appellant's current back condition is related to an event in service, such as the carrying of patient litters which has been contended by the appellant. As such, even viewed in the context of all the evidence of record, the new evidence would not change the outcome of the case. See Smith v. Derwinski, 1 Vet.App. 178 (1991). In view of the above, the undersigned concludes that new and material evidence sufficient to reopen the appellant's claim for service connection for a back disorder has not been submitted. ORDER New and material evidence sufficient to reopen the claim to service connection for a back condition not having been submitted, the benefit sought on appeal remains denied. C.P. RUSSELL 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.