BVA9501814 DOCKET NO. 93-10 351 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disorder and a thyroid condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran had active military service from January 9, 1952, to April 24, 1952. This appeal is before the Board of Veterans' Appeals (Board) following an April 1992 rating decision of the Huntington, West Virginia, regional office (RO) that determined the veteran had not presented new and material evidence to warrant reopening a claim for service connection of a lung condition and a thyroid condition. Those claims had been denied in January 1968 and the veteran notified of the denial that same month. The denial became final when the veteran failed to file a notice of disagreement and appeal within one year. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he has submitted new and material evidence to warrant reopening his finally denied claim for service connection of a lung condition and a thyroid condition. 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 veteran has not submitted new and material evidence to warrant reopening his claim for service connection of a lung condition and a thyroid condition. FINDINGS OF FACT 1. The veteran's claim for service connection of a lung condition and a thyroid condition was denied in January 1968, and the veteran was notified of the denial. 2. The veteran did not appeal that denial, and the denial became final. 3. Evidence submitted by the veteran since the 1968 denial includes medical records dated 1954, 1966, 1967, 1968, 1972, 1974, 1975, 1976, 1977, 1978, and 1979; a May 1986 decision of the U.S. Department of Labor denying compensation for total disability based on pneumoconiosis; a transcript of a hearing before an administrative law judge of the U.S. Department of Labor; excerpts from answers to interrogatories; and letters from physicians dated 1974 and 1975 providing diagnoses for conditions affecting the veteran at those times. 4. The evidence submitted in connection with the claim to reopen is duplicative or cumulative of evidence already of record or is not probative of the issue before us. CONCLUSION OF LAW 1. The January 1968 decision denying service connection for a lung condition and thyroid condition is final. 38 U.S.C.A. §§ 1110, 111, 1137, 1153, 7105(c) (West 1991); 38 C.F.R. §§ 3.303(a), 3.304(b), 3.306(a)(b), 3.307(a), 3.309(a), and 20.302 (1993). 2. Evidence received since the January 1968 decision is not new and material, and the claim for service connection for a lung condition and a thyroid condition is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In September 1967, the veteran filed an application for compensation or pension, listing his disabilities as chronic pulmonary disease having its inception in 1962, chronic anxiety reaction having its inception in 1962, and lung disease having its inception in 1952. The veteran's service medical records were requested, and a VA examination was accorded the veteran in December 1967. At the veteran's enlistment examination on January 18, 1952, there were no pertinent complaints, and the endocrine system, neck, lungs and psyche were reported as normal. A chest X-ray was not done. Blood pressure was 150/70. At an entrance examination the following day, the lungs, glands, neck and psyche were normal, and blood pressure was 150/70. A chest x-ray on January l4, l952 was normal. The veteran's service medical records show that he was treated in service for adenoma of the thyroid beginning in February 1952. A hospital record dated February 21, l952 reveals that the veteran reported swelling of the neck which had been present for about five months before he entered the service. It was noted that he had a few attacks of nervousness, palpitation, and tachycardia, and that he had experienced coughing for one month with shortness of breath. Moderate sweating was noted. Pulse was 88. There was enlargement of the thyroid gland, more on the right. There were no eye signs and no hand tremors. In another medical report apparently dated the same day, the veteran reported swelling of his neck of five months' duration. He also reported dull to sharp pain with shortness of breath and nervousness of six days' duration. It was indicated that although he had been aware of a diffuse enlargement of his neck anteriorly for some five months, he never sought medical attention as it did not bother him. In the past month, he noted that he had to breathe through his mouth. On February l5, l952, while double timing back from the dining area, he experienced intense nervousness with pains in his right chest anteriorly and severe dyspnea. He had to sit down to regain his composure. He was awakened from his sleep by a similar spell and had been able to sleep for two hours at the most each night since that time. He had lost some l0 pounds in the last two months. He had noted facial erythema and excessive sweating for the past four or five months. His social history revealed that he had worked in the coal mines since leaving school in the sixth grade and that he smoked one-half pack of cigarettes per day. An examination revealed a flushed countenance and mouth breathing. There was diffuse enlargement of the neck which was mild. The skin was dry and scaly. On March 4, l952, it was noted that the veteran no longer had any complaints. Thereafter, his nasal obstruction was found to be due to swollen turbinates. On March l7, l952, he stated he felt well except for a smothering sensation in the neck. Physical examination was negative, and a work-up was negative. The mass was not felt to be large enough to give compression symptoms. A diagnosis of adenoma, n.e.c., thyroid, EPTE [existed prior to enlistment] not misconduct, was made. In April 1952, the veteran appeared before a Board of Medical Survey. It was indicated that a basal metabolism test done on admission in February l952 revealed a rate of plus 24 percent. This test was repeated and the results were plus 2 percent and minus l.5 percent. An electrocardiogram was interpreted as normal as was a chest x-ray. It was indicated that the veteran continued to complain of nervousness and occasional palpitations. During his entire period of hospitalization, he was afebrile, and his pulse and pulse pressure remained well within normal limits. The thyroid adenoma was determined to be a disability not the result of misconduct, not incurred in the line of duty, existing prior to service, and not aggravated by service. The veteran signed a statement expressing his understanding that the thyroid adenoma had been determined not to have been incurred in or aggravated by a period of active military service and waiving his right to a hearing. In addition to the veteran's service medical records, hospital summaries from Lutheran Hospital in Cleveland, Ohio, dated 1962, 1965, and 1966 were obtained. A summary dated October 1962 has a diagnosis of hemoptysis of unknown etiology and says that chest x-ray and lab work were within normal limits. A summary dated September 1965 has a diagnosis of nephritic colic due to right ureteral calculus. A summary dated May 1966 has diagnoses of bilateral renal calculi and chronic lung disease, probably chronic bronchitis. The summary for June 1966 reflects treatment for right ureteral calculus. A VA examination was accorded the veteran in December 1967. Thyroid disease was noted to be under treatment. Chest x-rays on inspiration and expiration showed no evidence of abnormalities or disease. Lung disease was noted by history, not found on examination. In January 1968, the veteran's claim for service connection of a lung condition was denied as not found on examination. Service connection was also denied for adenoma of the thyroid. The veteran was notified of the decision by letter dated in January l968 and filed no appeal. In March 1977, the veteran submitted an income and net worth statement listing his illnesses as hypertension, nervous condition, pneumoconiosis, chronic obstructive pulmonary disease, and arterial insufficiency. He submitted copies of VA treatment notes dated August, September, and December 1976. On the basis of these treatment records, the veteran was awarded pension based on unemployability, with a combined schedular evaluation for his non-service connected disabilities of 80 percent. In April 1979, the veteran's representative submitted copies of treatment records and asked that the veteran be given an increased rating. The RO advised that the veteran did not have any service connected disabilities and treated the claim as one for special monthly pension. The records submitted included duplicates of the VA treatment notes from 1976; VA treatment records from April 1978 and February, March, and April 1979; and records from Stevens Clinic Hospital in Welch, West Virginia, covering January, April, May, and June 1978. The Stevens Clinic Hospital records reflect hospitalization for two days in January 1978 with complaints of pain in right anterior hemithorax, not aggravated by deep inspiration and not accompanied by vomiting. The diagnosis on discharge was probable osteochondral pain; hypertensive cardiovascular disease; and anxiety reaction, with depression, chronic. The outpatient treatment records for April, May, and June all reflect monitoring for hypertension, and the June notes also discuss management of angina pectoris. The VA treatment notes show treatment for chronic obstructive pulmonary disease, anxiety neurosis, bilateral insufficiency, and lower extremities. Lungs were noted to be clear in April 1978. In February 1979 the veteran reported chest pain, nausea, dizziness, muscle cramps, and shortness of breath. His lungs were noted to be clear. In March 1979, the veteran reported a sharp pain in the left upper quadrant when taking a deep breath and severe headaches. He reported no chest pain. In April 1979, the veteran reported that he felt the best he had in years and that he had occasional leg pain but no abdominal pain. In May 1990, the veteran sought to reopen his claim for service connection, listing those conditions for which he sought service connection as nervous condition with thyroid condition, amputation of the right index finger, kidney stones, hemorrhoids, lung disease, stomach disease, and internal bleeding. He submitted copies of records from Grace Hospital and Doctor's Memorial Hospital showing treatment in September 1954 for lower gastrointestinal tract bleeding. Records for 1966, 1974, and 1975 reflect treatment for arterial insufficiency of the legs, Leriche's syndrome bilateral, anxiety neurosis, chronic obstructive lung disease, constipation, dry cough and left-sided chest pain, and cylindrical bronchiectasis. The RO, in a decision dated in June l990, determined that the evidence submitted was not sufficient to reopen the claim. The rating of April 1979 was confirmed and continued. The veteran was notified of this decision and took no action with respect to the decision. In November 1991, the veteran sought to reopen his claim for service connection for a lung condition and thyroid condition. He provided a release for treatment records from Welch Emergency Hospital and Grace Hospital. The RO requested and obtained extensive treatment records covering one hospitalization for gastrointestinal bleeding in 1954 and various treatment in 1967, 1968, 1972, and 1974 through 1977. A request for records of treatment from the VA medical center in Winston-Salem, North Carolina, failed to yield any treatment records for the veteran at that facility. In April 1992, the RO issued a rating decision continuing the denial of service connection of the thyroid and lung conditions, noting that many of the treatment records had been previously submitted. The veteran has appealed that decision. In filing his VA Form 1-9, substantive appeal, the veteran included additional documentation, to include duplicates of medical records already in the file; an excerpt from answers to interrogatories listing conditions requiring medical treatment, dates of treatment, and providers of treatment; a September 1974 letter from Gary Craft, M.D., to the veteran's lawyer listing his diagnostic impressions of the veteran's condition; a July 1975 letter from Robert S. Tulchin, M.D., to the veteran's lawyer stating that the veteran was treated for bronchiectasis in 1966 and in January 1973; and a May 1986 Decision and Order Denying Benefits from the U.S. Department of Labor. Significantly, the dates of treatment listed by the veteran in the answers to interrogatories are for periods in 1974, 1975, 1978, 1980, 1981 and 1982. There are no earlier periods of hospitalization or treatment mentioned. The letter from Dr. Craft lists the veteran's conditions as pneumoconiosis category 2/2P; chronic obstructive pulmonary emphysema, moderate; anxiety neurosis, chronic, moderate; bilateral arterial insufficiency in both lower extremities, severe; and Leriche's syndrome, bilateral, secondary to arteriosclerosis of both iliofemoral arteries. The veteran also submitted a copy of the transcript of his hearing before a Department of Labor administrative law judge in connection with his claim for black lung benefits. In August 1992, the RO reconsidered the claim to reopen on the basis of the additional evidence submitted by the veteran and determined that it did not constitute new and material evidence. The veteran's original claim for service connection of the thyroid condition and lung condition was denied in 1968, and he was notified of that denial. A determination on a claim by the agency of original jurisdiction of which a claimant is properly notified is final if an appeal is not filed as prescribed in Department regulations. 38 U.S.C.A. § 7105(c) (West 1991). The veteran having failed to take any action with respect to the 1968 denial of his claim, the denial became final a year after mailing of notification to him of the decision. 38 C.F.R. § 20.302 (1993). In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). When presented with a claim to reopen a previously finally denied claim, a two-step analysis must be performed by the Department. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence submitted by the claimant is new and material. If it is, the new evidence must be reviewed in the context of the old to determine whether the prior disposition should be altered. Id. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1993). New evidence must be more than merely cumulative, and material evidence "is that which is relevant to and probative of the issue at hand and which (assuming its credibility) 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." Sklar v. Brown, 5 Vet.App. 140, 145 (1993). This new-and-material-evidence threshold in the context of a claim to reopen is a higher threshold than a claimant is required to cross in order to state a well-grounded original claim. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994). In this case, the veteran has submitted evidence since the final denial of his original claim. This evidence consists of treatment notes, hospital summaries, a hearing transcript and decision, physicians' statements, and excerpts from answers to interrogatories. In order to be considered new and material, the evidence must, as noted above, bear directly and substantially upon the specific matter under consideration, in this case whether the veteran's thyroid condition or his lung condition arose in or was aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). Service connection requires that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or have been aggravated by service. 38 C.F.R. § 3.303(a) (1993). In the case of a veteran who served 90 days or more during a period of war and bronchiectasis becomes manifest to a degree of 10 percent within one year of the date of separation from service, such disease may be presumed service connected in the absence of affirmative evidence to the contrary. 38 C.F.R. § 3.307(a) (1993). A veteran who served during a period of was is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38. U.S.C.A. § 1111, 1137; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). With respect to the thyroid condition, the rating board, in January l968, appears to have held that the veteran's thyroid adenoma pre-existed service, and was not aggravated by service. Such were the findings of the Medical Board examining the veteran, and the veteran was advised of those findings and signed a statement indicating his understanding that he would not be eligible for disability payments on the basis of the thyroid condition. None of the evidence that has been developed since the January 1968 VA decision finding the thyroid condition to be non-service connected has in any way controverted the findings relied upon at that time. The evidence is merely cumulative of evidence already of record. It does not refute the finding that the adenoma clearly and unmistakably was present prior to service. It also does not address the matter of aggravation in service. With respect to the lung condition, there is no indication in the veteran's service medical records of a lung condition, nor has the veteran presented any evidence of manifestation of any bronchiectasis to a compensable degree within one year of release from active duty. While at least one doctor, Dr. Tulchin, has diagnosed the veteran with bronchiectasis, that diagnosis did not appear until 1966. There is no evidence that the veteran developed that condition to a compensable degree within one year of leaving service. The evidence submitted by the veteran amply documents that he presently has a chronic lung disability. However, the present existence of a disability does not bear directly and substantially on whether that disability arose during military service or within any applicable presumptive period, Indeed, the earliest treatment records provided by the veteran are for a period more than two years following his discharge, and they deal with a hospitalization for intestinal bleeding rather than for a lung condition. Following that, the next records begin with 1966. Clearly, the evidence submitted since the last final denial of the claim is not new and material as contemplated in Department regulations. The veteran having failed to submit evidence bearing directly on the issue of service connection, there is no basis on which to undertake the second analytical step outlined in Manio. The claim cannot be reopened on the evidence submitted by the veteran since the last final denial of his claim. ORDER The veteran having failed to submit new and material evidence to reopen his claim, the appeal is dismissed. I. S. SHERMAN 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. (Continued on Next Page) 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.