BVA9506398 DOCKET NO. 93-11 196 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for fungal infection of the feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from May 1951 to March 1954. The Board of Veterans' Appeals (Board) issued a decision in July 1990 that denied service connection for a chronic fungal infection of the feet. The veteran filed a request to reopen his claim for service connection for a fungal infection of the feet in September 1991. This appeal is from the RO denial of the attempt to reopen. Subsequent to the appeal being certified to the Board, the veteran submitted medical evidence from a VA treatment center and a copy of part of his service medical records directly to the Board for consideration. Although the veteran did not waive initial consideration of this evidence by the RO, the Board has reviewed this evidence in conjunction with 38 C.F.R. § 19.37(b) and has determined that remand to the RO is not required. The evidence submitted duplicates evidence already in file. Because the evidence has already been considered by the RO, remanding this case to the RO for initial review of the added evidence is not in order. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his fungal infection of the feet had its onset while he was in active service. The veteran further contends that the evidence he submitted showing treatment received in September 1991 for onychomycosis of the toe nails and his testimony presented at the RO hearing held in April 1992 constitute new and material evidence for reopening of his previously denied claim. 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 has not been received to reopen the claim for entitlement to service connection for fungal infection of the feet. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's claim for entitlement to service connection for fungal infection of the feet was denied by the Board in July 1990. 3. Additional evidence received subsequent to the July 1990 Board decision does not present a reasonable possibility of changing the outcome of the case. CONCLUSIONS OF LAW 1. The July 1990 Board decision that denied service connection for fungal infection of the feet is final. 38 U.S.C.A. § 7104 (West 1991). 2. Evidence received since the July 1990 decision is not new and material, and the veteran's claim is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. There is no indication in the claims file that there are outstanding records which would be helpful in addressing the claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (1994). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease or injury diagnosed after discharge, when all of the evidence establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). When a claim is denied by the Board, the claim may not thereafter be reopened and allowed unless new and material evidence is submitted. See 38 U.S.C.A. § 7104(b). If new and material evidence is presented with respect to a claim that has been denied, the claim shall be reopened and reviewed as to all of the evidence of record. See 38 U.S.C.A. § 5108. Evidence is considered new when it is not merely cumulative of other evidence in the record and is considered material when it is relevant and probative of the issue at hand. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In order to constitute new and material evidence the evidence must be of sufficient weight so that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Id. When reviewing the evidence, all of the evidence received since the last final denial on the merits shall be considered. See Glynn v. Brown, 6 Vet.App. 523, 528 (1994). The evidence relied upon in the July 1990 decision consisted of the veteran's service medical records, reports of VA examinations conducted in April 1971 and June 1980, a VA treatment note dated in April 1989, and the veteran's testimony presented at a hearing in October 1989. The veteran's service medical records show that in April 1953 he was treated for severe athlete's foot. The report of his separation examination shows that the skin and feet were normal. The report of a VA examination conducted in April 1971 shows that there were no skin lesions and no reference to any disorder of the feet. The report of a VA examination conducted in June 1980 shows that there was no evidence of dermatitis or new growth and no reference was made to a disorder of the feet. The April 1989 treatment note indicates that the veteran reported that he had had a fungal infection of the feet for 30 years. The physical examination revealed no active lesions on either foot and the stated assessment was history of tinea pedis. In October 1989 the veteran testified that he had problems with his feet when he was stationed in Korea. Transcript of October 1989 Hearing, page 1. At that time he was having cold feet with blue toes and itching and sweating of both feet. T. 1. The physician told him that he was being treated for frostbite of his feet. T. 2. Subsequent to discharge, he treated his feet with over-the-counter medications but the problem did not go away. T. 3. The problem that he had after discharge was the same problem that he had while he was in service. T. 6. The veteran stated that he currently had little bumps on his feet that went away when he put medication on them. T. 5. In conjunction with his request to reopen the previously denied claim the veteran submitted a VA treatment note dated in September 1991. The treatment note indicates that the veteran sought treatment for a fungal infection of both feet. The report of treatment shows that the veteran had chronic onychomycosis (nail fungus) of both great toes and fifth toes and of the fourth toe on the left foot. No other disorder involving the feet was noted. In the RO hearing held in April 1992 the veteran testified that he started having problems with his feet because of the cold while he was serving in Korea. Transcript of April 1992 Hearing, page 1. He reported to sick call and he was told that he had mild frostbite. T. 2. At that time his feet were blue and itched and had something like blisters on them. T. 3. He was given medication to put on his feet. T. 3. He continued to have problems with his feet when he was stationed in Germany and the doctors told him that it was the residuals of frostbite. T. 4. The veteran testified that the problem that he had with his feet while he was on active duty was the same problem he currently had and it was continuous since he was in the service. T. 6. He treated the disorder with over-the-counter medications. T. 7. He also stated that the VA doctors told him that his foot disorder possibly related to his military service. T. 8. The veteran stated that his toe nails were different colors and he had cracks between his toes that bled. T. 8. The disorder caused him to have difficulty walking. T. 8. At another RO hearing held in January 1993 the veteran testified that he had problems with his feet while serving in Korea because of the cold. Transcript of January 1993 Hearing, page 2. He was treated with medication and returned to duty. T. 2. He continued to have problems with his feet when he was stationed in Germany. T. 3. The veteran thought he was told while in Germany that the problem with his feet was caused by a fungus, not frostbite, but he wasn't sure. T. 3. His feet were dark and he had no feeling in them. T. 4. When he was discharged he was told he had frostbite or a fungus on his feet, he couldn't remember which. T. 4. The problem that he had while in the service was the same problem he currently had, but it had gotten worse. T. 4. Currently, he had sores between his toes and the nails were turning and twisting. T. 5. He had no sores between his toes while he was in the service. T. 6. The subsequent evidence submitted by the veteran is not relevant and probative of the issue of service connection because there is no competent evidence establishing a causative relationship between the onychomycosis that the veteran currently has with his period of military service. Records of treatment made many years after service that do not indicate that the disorder is service- connected cannot constitute new and material evidence. See Cox v. Brown, 5 Vet.App. 95, 99 (1993). The veteran's assertion that the VA physician told him that his current disorder might be related to service is not sufficient to establish new and material evidence. See Warren v. Brown, 6 Vet.App. 4, 6 (1993). It does not create a reasonable possibility that the outcome would be changed. The veteran's testimony that the disorder that he had while in service is the same disorder that he now has is cumulative of his earlier testimony and is not sufficient to establish new and material evidence because the veteran is not competent to provide a medical diagnosis that requires an expert opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The Board notes that the veteran filed a claim for entitlement to service connection for the residuals of frostbite of the feet which was denied in a rating determination issued in July 1977. Analysis of the entire evidence of record, including the reports of the April 1971 and June 1980 VA examinations that were negative for any disorder of the feet, and the absence of any medical treatment for more than 35 years after service, indicates that there is no reasonable possibility that the additional evidence received would change the outcome of the case. ORDER The appeal to reopen a claim of entitlement to service connection for a fungal infection of the feet is denied. GEORGE R. SENYK 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.