BVA9502468 DOCKET NO. 93-08 681 ) 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 submitted to reopen a claim of entitlement to service connection for an umbilical hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The appellant served on active duty from February to September 1943. This matter comes before the Board of Veterans' Appeals (the Board) from a January 1993 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's request to reopen a claim for entitlement to service connection for an umbilical hernia based on the submission of new and material evidence. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the December 1992 statement from S. L. Kanner, D.O., constitutes new and material evidence sufficient to reopen his claim for service connection. The appellant contends generally that the statement of the case prepared by the RO in March 1993 did not adequately address the issues and basis upon which his claim was not reopened. 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 the evidence received since the Board's decision of March 1988, denying service connection for an umbilical hernia, is not new and material. Therefore, the claim is not reopened and the Board's prior denial of the claim is final. FINDINGS OF FACT 1. In January 1979, the RO denied service connection for an umbilical hernia; a notice of disagreement was not filed within the one-year period immediately after the date of mailing to the appellant of notice of that RO decision. 2. In March 1988, the Board reopened the appellant's claim of service connection for an umbilical hernia, as the appellant provided additional evidence in support of his claim, including a release for county health clinic records dating from 1960 and a statement from his sister. 3. Based on a review of the entire record, the claim of service connection for an umbilical hernia was denied in the Board's March 1988 decision. 4. The evidence submitted since the March 1988 Board decision, consists of correspondence from a private doctor which is cumulative in nature. CONCLUSION OF LAW Evidence received since the Board denied entitlement to service connection for an umbilical hernia in March 1988 is not new and material; thus, the appellant's claim has not been reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim for entitlement to service connection for an umbilical hernia is factually well-grounded in that his claim is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). The Board is satisfied that all available relevant evidence is of record and that the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met in accordance with 38 U.S.C.A. § 5107. Additionally, as to the claimed inadequacy of the March 1993 statement of the case, the Board has reviewed that document in question and determined that it correctly framed the issue, set forth the facts in an accurate fashion, and gave the reason for the determination that the evidence was not new and material, providing the applicable law and regulations, including citation to 38 C.F.R.§ 3.156 to explain the concept of "new" and "material" evidence and 38 U.S.C.A.§ 7104 explaining finality of Board decisions. Furthermore, from a review of the appellant's lengthy substantive appeal it is clear that he is, in fact, relatively knowledgeable as to the law and procedure applicable in his case. Turning to the facts of the case, the appellant's initial claim for service connection was filed in January 1979. Later that month the RO denied the appellant's claim for entitlement to service connection for an umbilical hernia on the basis that it pre-existed and was not aggravated during service. The decision was not appealed. In January 1987, the appellant filed to reopen his claim; shortly thereafter he submitted a lay statement from his sister and an authorization for release of information form which reflected that he had been treated at a county health clinic in Florida since 1960. His request to reopen was denied by RO rating decision in March 1987, for lack of new and material evidence. The issue initially came before the Board in March 1988, at which time the Board reopened the claim based on the submission of the additional evidence, but denied the claim on the merits based on the fact that the umbilical hernia pre- existed service and underwent no increase in severity therein. In that March 1988 decion, the Board analyzed the appellant's service records which reflect that upon entrance examination in January 1943 a hernial scar was noted by the examiner. Complaints and diagnoses of an umbilical hernia in service are shown as is a history of bilateral herniorrhaphy in the late 1930's. Discharge from service was recommended in August 1943 due to physical defects, including a small umbilical hernia, which were described as "not incurred in service nor have they been aggravated by military service." VA outpatient records, dated several decades later in September 1978, show complaints involving the umbilical hernia. A VA examination conducted in December 1978 revealed a small umbilical hernia without complications. A decision of the Board is final with the exception that a claim may later be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. The question now presented is whether new and material evidence has been submitted since the Board's adverse decision of March 1988, denying service connection for an umbilical hernia, to permit reopening of the claim. Glynn v. Brown, 6 Vet.App. 523, 528-529 (1994). "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 issues at hand and which must be of sufficient weight or significance 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); 38 C.F.R.§ 3.156 (1993). In June 1992, the appellant's request for reconsideration of the March 1988 Board decision was denied. Thereafter, a Notice of Appeal was filed by the appellant with the Court of Veterans Appeals (Court) in August 1992. The Court dismissed that appeal for lack of jurisdiction. Jackson v. Principi, No. 92-1001 (U.S. Vet. App. Nov. 12, 1992). In December 1992, the appellant filed his current claim to reopen based on the submission of new and material evidence. In a rating decision dated January 1993, the RO denied the appellant's request to reopen his claim of entitlement to service connection for an umbilical hernia, determining that the evidence submitted for that purpose was not new and material. The additional evidence which the appellant has submitted to reopen his claim consitiutes of a single piece of correspondence from S. L. Kanner, D.O., dated and received in December 1992. The correspondence simply states that the appellant is a "long- time patient" having an umbilical hernia. The letter goes on as follows: "This patient states that he's had this for many years and states it is related to service in the United States military." Further the physician writes: "I have no reason to doubt this patient." The flaw in the evidence presented is the basis upon which the physician's "opinion" was made. The physician appears clearly to have relied totally on the appellant's account of his own medical history and his assertion of a causal relationship between his disability and service activities. The Board notes that a lay party is competent to testify as to facts within his own observation and recollection, such as visible symptoms; however,a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical education, training, or experience. Espiritu v. Derwinski, 1 Vet.App. 492 (1992). The Court has held that if determinative issues involve medical causation, or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). The statements of the appellant regarding medical causation are not competent evidence, because they were made by a lay person on a matter that requires medical expertise. Accordingly, the physician's recitation of the appellant's statements cannot be relied upon as competent evidence, because the physician's correspondence itself was clearly grounded on the incompetent (from an evidentiary standpoint) statements of medical history provided by the appellant. Reonal v. Brown, 5 Vet.App. 458 (1993). Further, Dr. Kanner provided a statement merely that the appellant has an umbilical hernia, without indicating that he had reviewed the appellant's VA claims file or any of his service medical records. While he indicated that he had no reason to doubt the appellant's veracity, a diagnosis so made can be no better than the facts alleged by the appellant. Swann v. Brown, 5 Vet.App. 229 (1993). Through such a statement, Dr. Kanner in effect vouches for the appellant's character in general, but it falls well short of creating a reasonable possibility of changing the prior adverse result. In order to be considered new, evidence must do more than merely summarize or repeat evidence submitted in previous proceedings. New evidence is considered material when "it is relevant and probative of the issue at hand." However, not every piece of new evidence, even if relevant and probative, will justify reopening. In order to justify the reopening of a case based on new and material evidence, "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." Guerrieri v. Brown, 4 Vet.App. 467, 470 (1993) (quoting Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (citations omitted)). Although the Dr. Kanner's statement is "new" evidence in the respect that it was not previously of record, it is not probative evidence nor is it "material" because it does not present 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 v. Derwinski, 1§ Vet.App. 171, 174 (1991). As new and material evidence has not been submitted since the Board decision in March 1988, no further analysis of the application is required; rather, it should cease. Further analysis under these circumstances is not only confusing to the appellant, but also to the Court on review. Kehoskie v. Derwinski, 2 Vet.App. 31 (1991). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for an umbilical hernia, the benefit sought on appeal is denied. J. F. GOUGH 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.