BVA9503709 DOCKET NO. 93-27 079 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for epilepsy REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1956 to August 1957. In a February 1980 decision, the Board of Veterans' Appeals (Board) denied entitlement to service connection for epilepsy. In a September 1987 decision, the Board determined that a new factual basis had not been presented to grant entitlement to service connection for epilepsy. The current appeal arose from a January 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for epilepsy. The RO affirmed this determination when it issued a rating decision in July 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for epilepsy. He states that he was hospitalized at a VA medical facility for treatment of epilepsy while on active duty in 1956. He states that during the year following his discharge he was again hospitalized for epilepsy. He requests that the records pertaining to the hospitalizations be obtained. 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 to reopen a claim of entitlement to service connection for epilepsy has not been submitted. FINDINGS OF FACT 1. The Board denied entitlement to service connection for epilepsy in February 1980. 2. The evidence added to the record since the February 1980 decision consists of additional variously dated medical statements from VA and non-VA health care professionals, a statement from a service comrade dated in November 1992, and VA hospital summaries pertaining to treatment of the veteran in 1993 and 1994 noting a history of epilepsy which does not tend to show that the veteran has epilepsy related to his period of service. CONCLUSIONS OF LAW 1. Evidence received since the February 1980 Board decision denying the veteran's claim for service connection for epilepsy is not new and material. 38 U.S.C.A. §§ 5107, 7104(b); 38 C.F.R. § 3.156(a). 2. The decision of the Board in February 1980 denying the veteran's claim of entitlement to service connection for epilepsy is final and such claim may not be reopened. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107, 5108, 7104(b); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is satisfied that all relevant facts have been properly developed, that the evidence of record is sufficiently complete, and that no further assistance to the veteran is required in order to comply with the duty to assist him in the development of facts pertinent to his appeal. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Service connection may be granted for any disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Epilepsy, if not shown during service, may be presumed to have been incurred in service if it is shown to be disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309. When a claim is disallowed by the Board, that claim may not thereafter be reopened absent the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992) 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. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence which was of record when the Board considered the appellant's case on the merits in February 1980 consisted of the service medical records, a VA examination report dated in January 1966, numerous lay and medical statements, and the report of a VA Field Examiner. The service medical records were negative for any finding of epilepsy, and the veteran denied a history of epilepsy on the medical history part of the separation examination. The January 1966 VA examination report is negative for any history or findings of epilepsy. The numerous lay statements all made in 1977 and 1978 were to the effect that the veteran had been suffering from epilepsy as early as 1957. The medical statements were to the combined effect that the veteran had been receiving treatment for epilepsy during various years including 1957. An October 1978 report shows a VA Field Examiner interviewed a private physician who stated what the physician observed in 1957 when he treated the veteran for epilepsy. The evidence added to the record since the February 1980 Board denial of entitlement to service connection for epilepsy consists of additional variously dated medical statements from VA and non- VA health care professionals who provided commentary as to the veteran's history of treatment for epilepsy with no actual medical documentation of previous treatment provided, a November 1992 statement from a service comrade noting he had taken the veteran to the hospital for treatment of epilepsy in service and to a VA hospital in 1957 for further treatment, and VA hospital summaries pertaining to treatment in 1993 and 1994 noting a history of epilepsy. As can readily be seen, the evidence submitted by the appellant since the 1980 decision is similar to the evidence considered by the Board when it denied the claim. The evidence submitted by the veteran in an attempt to reopen his claim has consisted of statements referable to treatment of epilepsy many years earlier and lay statements that the appellant had epilepsy as long ago as service. The RO's attempts in the past to obtain documentation of signs or manifestations of a seizure disorder more proximate to service were unsuccessful. As noted above, no new and material evidence has been submitted to permit the Board to conclude that the previously denied claim should be reopened. For the foregoing reasons the Board must conclude that the appellant's attempt to reopen his claim fails. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for epilepsy, the benefit sought on appeal is denied. BRUCE KANNEE 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.