BVA9501267 DOCKET NO. 93-12 917 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. D. Walker, Associate Counsel INTRODUCTION The veteran had active service from August 1939 to December 1945 and from January 1947 to April 1947. The Department of Veterans Affairs (VA) Regional Office (RO) issued a rating determination in July 1958 that denied service connection for arthritis. The notice of that determination sent to the veteran in July 1958 informed him that he was denied service connection for arthritis as not being incurred in or aggravated by military service. The veteran filed a request to reopen his claim for service connection for arthritis in October 1991. In January 1992 the RO issued a rating determination stating that new and material evidence had not been submitted and that the claim remained denied. It is that decision that is now before the Board of Veterans' Appeals (Board) on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has arthritis as a result of sleeping on the ground while in active service. The veteran further contends that he has submitted new and material evidence because he submitted an X-ray showing that he has arthritis but that no X-ray was taken when the rating determination was issued in July 1958. 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 arthritis. 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 arthritis was denied in an unappealed rating determination issued in July 1958. 3. Additional evidence received subsequent to the July 1958 rating determination does not present a reasonable possibility of changing the outcome of the case. CONCLUSION OF LAW The July 1958 rating determination that denied service connection for arthritis became final and the evidence received since the July 1958 rating determination 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. §§ 3.104, 3.156 (1993); 38 U.S.C. 3305; Department of Veterans Affairs Regulation 1008, effective January 1, 1958 to December 31, 1958. REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 1131 (West 1991). 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) (1993). Where a veteran served for 90 days in active service, and arthritis develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption can be rebutted by affirmative evidence to the contrary. See 38 U.S.C.A. § 1113. A decision becomes final and is not subject to revision on the same factual basis unless an application for review on appeal is filed within one year of the notice of decision. See 38 C.F.R. § 3.104(a); 38 U.S.C. 3305; Department of Veterans Affairs Regulation 1008, effective January 1, 1958 to December 31, 1958. 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 rating determination issued in July 1958 consisted of the veteran's service medical records, a VA orthopedic examination conducted in June 1958, and private medical records prepared in January 1955. The service medical records show that the veteran was treated in July 1942 for gonorrhea and in August 1942 he reported pain in his joints. The record shows that the veteran reported being treated for gonococcal arthritis, but there is no evidence in the records that he received such treatment. In July 1942 the veteran also reported having had low back strain as the result of an automobile accident in 1941. The remainder of the veteran's service medical records are silent for any symptoms or clinical findings of joint pain or arthritis. In the separation examination conducted in December 1945, no musculoskeletal defects were found. The veteran re-enlisted in January 1947 and no musculoskeletal defects were found at that time, nor were any reported when he was discharged again in April 1947. The private medical records show that in December 1954 the veteran had a subdural hematoma removed from the left side of his brain that was the result of a fall he had in October 1954. There is no reference to arthritis or joint pain in the physician's report of the treatment received in December 1954. During the VA orthopedic examination conducted in June 1958 the veteran reported that "very, very seldom" he had a little soreness in his left elbow and left hand. He reported no other joint pain or abnormalities. On physical examination the physician found no clinical evidence of any disease or injury in the left elbow or hand. Contrary to the veteran's contention that no X-ray was taken prior to the rating determination of July 1958, an X-ray taken in June 1958 was negative for any evidence of traumatic injury or any other pathology in the left elbow and left hand. In conjunction with his request to reopen his claim the veteran submitted a report from a private physician dated in December 1979 stating that the veteran had been treated for low back pain as the result of an on-the-job injury that he received in September 1979. The veteran was treated for muscle spasm with medication, bedrest, and physical therapy. The diagnosis provided was chronic low back syndrome and a mechanically unstable back. There is no indication in the report that the veteran had arthritis or that the referenced symptoms preceded the injury in September 1979. The veteran also submitted a July 1980 letter from his former employer who indicates that the veteran applied for early retirement benefits due to medical disability; the nature of the disability was not noted. The file also contains the report of an X-ray taken at the VA clinic in October 1991. The analysis of the X-ray revealed degenerative spondylosis of the mid and lower cervical spine with degenerative joint disease in the left facet joints in the upper and mid cervical area. There is no evidence in file of when the current disorder was incurred and no evidence linking the current disorder with the veteran's military service. The evidence submitted by the veteran that refers to arthritis does not constitute new and material evidence because it does not show an etiological link between the current disorder and the veteran's period of active service. Records created years after service that do not establish a causative link between the in- service disorder and the current diagnosis cannot be considered new and material. See Cox v. Brown, 5 Vet.App. 95, 99 (1993). The other medical evidence and the employer's statement do not go to the issue on appeal. The veteran's conclusions regarding an etiological link between sleeping on the ground while he was in service and the current diagnosis are not relevant because the veteran is not competent to make a medical diagnosis. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Because consideration of the additional evidence does not create a reasonable possibility that the outcome would be changed, the veteran's claim will not be reopened. ORDER Because new and material evidence has not been submitted, a claim to reopen entitlement to service connection for arthritis is denied. M. SABULSKY 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.