BVA9507209 DOCKET NO. 90-41 751 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to a back disability. 2. Entitlement to an increased (compensable) rating for evaluation for gouty arthritis of the right elbow. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from August 1967 to March 1970 and from March 1971 to January 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1990, rating decision of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for a back disability, entitlement to an increased rating for service- connected gouty arthritis of the right elbow, and entitlement to nonservice-connected pension benefits. The notice of disagreement was received in May 1990. The statement of the case was sent to the veteran in June 1990. The substantive appeal was received in August 1990. In an August 1991 decision, the Board remanded this case for further development. In the August 1991 decision, the Board noted that entitlement to service connection for a back disability had been previously denied by the Board in a December 1985 decision and instructed the RO to consider the finality of that decision. In a March 1992 rating decision, the RO confirmed and continued the denial of entitlement to an increased rating for service- connected gouty arthritis of the right elbow and entitlement to nonservice-connected pension benefits. In addition, the RO determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for a back disability. A supplemental statement of the case was sent to the veteran in March 1992 which included the law and regulations pertinent to new and material evidence. In a subsequent March 1992 rating decision, the RO denied entitlement to service connection for residuals of a claimed gunshot wound to the right leg and also determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for post-traumatic stress disorder and jungle rot (dermatophytosis of the feet). In an April 1992 letter, the veteran was notified of the denial and of his procedural and appellate rights. In July 1992, the veteran's representative submitted a VA form 1-646, which the Board accepts as a notice of disagreement as to the issue of entitlement to service connection for residuals of a claimed gunshot wound to the right leg. Therefore, the Board refers this issue to the RO for the RO to furnish the veteran a statement of the case as to that issue in accordance with 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. §§ 19.29, 19.30, (1994). In a September 1992 rating decision, the RO confirmed and continued the denial of entitlement to nonservice-connected pension benefits. In April 1993, the veteran testified at a personal hearing before a member of the Board. Thereafter, in March 1994, the Board remanded this case again for further development. In the Board's remand decision, the Board indicated that new and material evidence had been submitted to reopen the claim for entitlement to service connection for a back disability. In a June 1994 rating decision, entitlement to nonservice- connected pension benefits was granted. Since that issue has been granted by the RO, it is no longer before the Board on appeal. In a November 1994 letter, the veteran was advised that the member of the Board who conducted his personal hearing in April 1993 was no longer employed by the Board. He was informed that he was entitled to another hearing before a member of the Board. A March 1995 VA Form 119, Report of Contact, indicated that the veteran declined testifying at another hearing before a member of the Board and wanted his case decided on the evidence of record. The issues currently in appellate status are listed on the front page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he initially injured his back and his right elbow when he fell from a truck in 1973 in service. Currently, he contends that his present back disability is due to his inservice injury. He further contends that his right elbow, which is service-connected, is more disabling than is represented by the noncompensable rating. He asserts that he experiences restricted and painful motion as well as swelling. 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 met the burden of submitting new and material evidence to warrant the reopening of his claim for entitlement to service connection for a back disability. Further, it is the decision of the Board that the evidence does not support a compensable rating for the veteran's service- connected gouty arthritis of the right elbow. FINDINGS OF FACT 1. In a December 1985 decision, the Board denied entitlement to service connection for residuals of an injury to the back. 2. The evidence submitted since the Board's December 1985 decision, is cumulative or duplicative of evidence previously considered by the Board in its prior 1985 decision, and does not raise a reasonable possibility that a review of all the evidence, both old and new, would result in a different outcome of the claim. 3. The veteran does not exhibit any limitation of motion of the right elbow. CONCLUSIONS OF LAW 1. Evidence submitted since the Board's December 1985 final decision denying the veteran's claim for entitlement to service connection for residuals of a back injury, is not new and material and, thus, the veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §3.156(a) (1994). 2. The schedular criteria for a compensable disability evaluation for gouty arthritis of the right elbow, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71, 4.40, Part 4, Diagnostic Code 5206 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence In a December 1985 decision, the Board denied entitlement to service connection for residuals of a back injury. The Board decision is final and cannot be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991). 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) (1994). According to the United States Court of Veterans Appeals, in determining whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last final denial based on the entire record, not merely the evidence added to the record subsequent to the last refusal to reopen the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). Therefore, since the last denial on the merits prior to this claim was the Board's final 1985 decision, the question now before the Board is whether new and material evidence has been added to the record following the denial of the claim by the Board in 1985. The Court has set forth a two-step analysis in Manio v. Derwinski, 1 Vet.App. 140 (1991), to be employed when an appellant seeks to reopen a previously denied claim on the basis of "new and material evidence." The two-step analysis requires that a determination be made, under 38 U.S.C.A. § 5108 (West 1991), regarding whether the evidence is "new and material" so as to permit the reopening of the claim. If it is, a decision must then be made as to whether the evidence presented warrants a revision of the former disposition. The second level analysis must be made based upon an evaluation of the merits of the claim in light of all the evidence, both old and new. An adverse determination regarding either question is appealable. Further, "new" evidence must be more than merely cumulative of other evidence of record, and "material" evidence must be relevant and probative of the issue under consideration, and present a reasonable possibility that the new evidence when viewed in the context of all of the evidence, new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Therefore, in assessing the sufficiency of the additional evidence for purposes of reopening a claim, a critical examination of all of the evidence of record is necessary. The evidence of record at the time of the Board's December 1985 decision consisted of: the veteran's service medical records which revealed several complaints of and treatment for back pain including a complaint of back pain after bending, but did not reveal any complaints of trauma to the back after falling from the roof of a truck; an April 1983 Agent Orange examination; VA records dated from 1983 through 1985 which documented the history of the veteran's back problems as provided by the veteran including his assertion that he fell off a truck in service; private medical records dated from 1983 to 1984 which documented the history of the veteran's back problems as provided by the veteran including his assertion that he fell off a truck in service; and the veteran's personal testimony at a January 1985 personal hearing at the RO. At his hearing, the veteran related that he was treated for a back injuries during service in 1968 and in 1973 when he fell off a truck. A review of the aforementioned medical records revealed that the veteran had back problems following service including a finding that he had an old compression fracture of D12. The reportedly "new and material evidence" submitted by the veteran since the December 1985 Board decision consists of: VA records dated from 1986 through 1993; an October 1991 VA examination; a January 1992 examination conducted by a private examiner on a fee basis for the VA; a July 1992 VA examination; an April 1987 personal hearing at the RO; and an April 1993 personal hearing before a member of the Board. The medical evidence submitted to the record documented the history of the veteran's back problems as provided by the veteran including his assertion that he fell off a truck in service in 1973. The recent personal hearing before the member of the Board included testimony that he injured his back during service when he fell from a truck and suffered a compression fracture. As noted above, "new" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more that merely cumulative. Colvin. The veteran has not submitted duplicate copies of any evidence previously of record. However, his reassertions that he injured his back when he fell from the roof or top of a truck during service in 1973 is the same contention he made at the time of the 1985 Board decision. As such, his reiterations are cumulative evidence and are no more probative at this time than they were at the time of the 1985 decision. Therefore, his present assertion that he initially injured his back in a fall from a truck during service is not "new evidence." Similarly, the Board concludes that the aforementioned additional evidence is not "material." The applicable law also requires that new and material evidence is evidence which has not been 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) (1994). The Board has reviewed the newly submitted evidence with respect to the issue of entitlement to service connection for a back disability, however, the Board concludes that the aforementioned evidence is not "material" since that evidence does not present a reasonable possibility that the new evidence when viewed in the context of all of the evidence, new and old, would change the outcome. Although the new evidence revealed treatment for back problems over approximately the past 9 years, that evidence does not relate to the issue of whether the veteran's back problems were a result of disease or injury sustained in service. Although the veteran reported to his post-service examiners that he sustained a trauma to his back when he fell from the roof of a truck during service in 1973 which resulted in residual back disability, that personal history was already fully considered at the time of the 1985 Board decision. The notations by the veteran's examiners that he had a back problem since 1973 per the veteran's history amount to no more than a reiteration by the veteran of his own personal assertions and are not findings by physicians that any current back disability began in 1973. Thus it is not material evidence. As noted above, the RO fully considered the veteran's assertions that his back was initially injured during service in 1973 and also considered whether a finding that he had an old compression fracture of D12 was due to an incident in service. That contention is not new evidence. There is no new medical evidence of record which independently attributes any current back disability to an incident in service. Thus, while the Board acknowledges that the aforementioned evidence is "new" in that it was not previously of record, it is not material because there is not a reasonable possibility that this evidence, when viewed in context with all the evidence, both old and new, would change the outcome of this appeal. Smith v. Derwinski, 1 Vet.App. 178 (1991). Therefore, after reviewing the record, the Board concludes that the evidence submitted does not constitute new and material evidence to reopen the veteran's claim for entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). The Board notes that although the March 1994 Board remand decision indicated that the issue of entitlement to service connection for a back disability had been reopened, the Board currently has determined that this issue is not reopened in accordance with the new directives in McGinnis v. Brown, 4 Vet.App. 239, 244 (1993), regarding cases involving new and material evidence. The Court noted that, in the past when a case was reviewed on the merits when it should not have originally been reopened as new and material evidence had not been submitted, the Court considered that to be "harmless error." However, in McGinnis, the Court concluded that such a review was not in fact harmless, since it deprives the previous denial of finality and effectively establishes a date for a new final denial which has no basis in fact or in law. Following the Court's directives, the Board finds that, although the prior remand decision indicated that the claim was reopened, the Board now concludes that new and material evidence has not been submitted and the claim is not reopened. Therefore, the claim will not be reviewed on the merits. II. Increased Rating for Gouty Arthritis of the Right Elbow The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Further, although a review the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all medical evidence of record, the Board will focus on the most recent medical findings regarding the current level of the veteran's right elbow disability. The Board will briefly review the veteran's medical history regarding his service-connected right elbow disability. At the outset, the Board observes that the veteran is right-handed. A review of the veteran's service medical records revealed that the veteran had complaints of right elbow pain and a loose body located in his elbow since 1973 until his discharge. He was treated for mild chronic strain of the right elbow. X-rays were negative for any fracture. Following discharge, there are no medical records regarding the veteran's right elbow until he was treated at a VA facility in June 1984. Physical examination revealed a loose bony chip on the ulnar aspect which moved freely and was about .5 centimeter in size. There was no tenderness or crepitation, but some restriction of movement was noted. Based on the service medical records and the June 1984 VA record, entitlement to service connection for gouty arthritis of the right elbow was granted and a noncompensable rating was assigned in a September 1984 rating decision. In a subsequent December 1985 Board decision, entitlement to an increased rating for that disability was denied. The claims file contains numerous VA medical records dated from 1986 through 1993 which primarily reflect treatment for other unrelated medical problems. However, there are a few treatment records reflecting treatment for the veteran's right elbow disability. Specifically, the veteran was treated in October 1986 for bursitis of the right elbow. In May 1987, it was noted that he had a palpable osteophyte in his right elbow. It was also noted that he could extend to zero degrees and flex to 120 degrees and he exhibited pronation of 120 degrees and supination of 90 degrees. November 1989 records noted right ulnar nerve compression and gouty arthritis and documented the veteran's complaints of pain. At that time, he exhibited full range of motion and full strength. In October 1991, the veteran was afforded a VA examination. Physical examination did not reveal any swelling, however, decreased strength was noted. The veteran complained of pain on flexion and extension. X-rays were within normal limits. The diagnosis was right elbow gout arthritis. In January 1992, an examination was conducted by a private examiner on a fee basis for the VA. Physical examination of the right elbow revealed full range of motion. The veteran did not exhibit swelling, effusion, or tenderness. The elbow joint was stable. The right olecranon bursa was slightly enlarged, indurated, and tender, but there was no evidence of erythema. X- rays of the right elbow were negative. The diagnosis was olecranon bursitis of the right elbow. In July 1992, the veteran was afforded another VA examination. Physical examination revealed no rigidity or fluid in the right elbow joint. X-rays were negative. The diagnosis was history of right elbow bursitis. In support of his claim, the veteran testified at a personal hearing before a member of the Board in April 1993. At that time, he related that he experiences restricted and painful motion of the right elbow. He reported that his right elbow swells and that he has had it drained several times. He asserted that he cannot lift, extend, or flex fully. Currently, the veteran asserts that his service-connected gouty arthritis of the right elbow disability is more disabling than is represented by the noncompensable rating. He asserts that he experiences painful and restricted motion as well as swelling. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Under the rating schedule, gout is rated under Diagnostic Code 5017. The rating schedule further provides that gout will be rated under Diagnostic Code 5002. Diagnostic Code 5002 provides ratings for chronic residuals of arthritis which are rated on the basis of limitation of motion for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of motion of the forearm of the major arm is evaluated under Diagnostic Codes 5206 and 5207. Under Diagnostic Code 5206, flexion limited to 100 degrees is rated as 10 percent disabling; flexion limited to 90 degrees is rated as 20 percent disabling; flexion limited to 70 degrees is rated as 30 percent disabling; flexion limited to 55 degrees is rated as 40 percent disabling; flexion limited to 45 degrees is rated as 50 percent disabling. Under Diagnostic Code 5207, extension limited to 45 degrees is rated as 10 percent disabling; extension limited to 60 degrees is rated as 10 percent disabling; extension limited to 75 degrees is rated as 20 percent disabling; extension limited to 90 degrees is rated as 30 percent disabling; extension limited to 100 degrees is rated as 40 percent disabling; extension limited to 110 degrees is rated as 50 percent disabling. Ankylosis of the elbow is rated under Diagnostic Code 5205. Favorable ankylosis of the major elbow at an angle between 90 degrees and 70 degrees is rated as 40 percent disabling; intermediate ankylosis of the major elbow at an angle of more than 90 degrees or between 70 degrees and 50 degrees is rated as 50 percent disabling; unfavorable ankylosis of the major elbow at an angle of less than 50 degrees or with complete loss of supination or pronation is rated as 60 percent disabling. In addition, under 38 C.F.R. § 4.71 (1994), the rating schedule provides a standardized description of ankylosis and joint motion measurement. With regard to the elbow, full range of motion of flexion is from 90 to 145 degrees. At the outset, the Board notes that the veteran's x-rays of the right elbow have consistently been negative for any abnormalities. Moreover, there has been no indication of ankylosis of the right elbow joint. As such, Diagnostic Code 5205 is inapplicable. The Board notes that the veteran asserts that he experiences painful motion of the right elbow. Under 38 C.F.R. § 4.40 (1993), functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. The Board observes that the veteran's several recent examinations did not reveal any limitation of motion of the right elbow. Although he complained of pain on flexion and extension during the October 1991 examination, the veteran's subsequent examinations revealed full range of motion and no functional impairment due to pain. The Board has given due consideration to the fact that the veteran is right-handed, however, he is rated pursuant to limitation of motion of the elbow and he does not exhibit functional impairment in the movement of his right elbow according to the criteria set forth in the rating schedule. The Board concludes that the current noncompensable rating for the veteran's service-connected gouty arthritis of the right elbow is appropriate as the subjective complaints of pain are not supported by adequate pathology. In addition, the disability picture is not so unusual such as to require frequent periods of hospitalization or marked interference with employment such as to render impractical the regular schedular standards. 38 C.F.R. § 3.321 (1994). Accordingly, the Board concludes that the schedular criteria for a compensable disability evaluation for gouty arthritis of the right elbow, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71, 4.40, Part 4, Diagnostic Code 5206 (1994). ORDER The appeal as to both issues is denied. E. M. KRENZER 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.