Citation Nr: 0006674	
Decision Date: 03/13/00    Archive Date: 03/17/00

DOCKET NO.  96-05 262 A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for pes 
planus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Roberts, Counsel


INTRODUCTION

The veteran served on active duty from August 1944 to June 
1946.

This appeal arises before the Board of Veterans' Appeals 
(Board) from an August 1995 rating decision of the North 
Little Rock, Arkansas, Regional Office (RO) of the Department 
of Veterans Affairs (VA), which denied the issue on appeal.


FINDINGS OF FACT

1.  The August 1979 RO rating decision which denied service 
connection for pes planus is final.

2.  The evidence submitted subsequent to the August 1979 
final RO rating decision does not bear directly and 
substantially upon the specific matter under consideration, 
is in some part cumulative and redundant, and by itself and 
in connection with the evidence previously assembled is not 
so significant that it must be considered in order to fairly 
decide the merits of the veteran's claim of entitlement to 
service connection for pes planus.


CONCLUSION OF LAW

1.  The August 1979 RO rating decision is final.  38 U.S.C.A. 
§ 7105 (West 1991); 38 C.F.R. § 3.104 (1999).

2.  The evidence received subsequent to the August 1979 RO 
rating decision is not new and material and does not serve to 
reopen the veteran's claim of entitlement to service 
connection for pes planus.  38 U.S.C.A. §§ 5108, 7105 (West 
1991); 38 C.F.R. § 3.156 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Prior decisions of the Board and the RO are final and may be 
reopened only upon receipt of additional evidence which, 
under applicable statutory and regulatory provisions, is both 
new and material so as to warrant revision of the previous 
decision.  38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 
1999).  "New" evidence means more than evidence that has 
not previously been included in the claims folder, and must 
be more than merely redundant and cumulative, in that it 
presents new information.  Colvin v. Derwinski, 1 Vet. 
App. 171 (1990).  When determining whether the veteran has 
submitted new and material evidence to reopen the claim, 
consideration must be given to all of the evidence submitted 
since the last final denial of the claim.  Evans v. Brown, 9 
Vet. App. 273 (1996); Glynn v. Brown, 6 Vet. App. 523 (1994).

New and material evidence means evidence not previously 
submitted to VA decision makers which bears directly and 
substantially upon the specific matter under consideration, 
which is neither cumulative or 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) (1999).

The United States Court of Veterans Appeals has held that 
pursuant to the holding of the United States Court of Appeals 
for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. 
Cir. 1998), a three-step analysis of appeals of whether new 
and material evidence has been submitted to reopen a claim is 
necessary.  The Secretary must first determine whether the 
veteran has presented new and material evidence under 38 
C.F.R. § 3.156(a) (1999) in order to have a finally denied 
claim reopened under 38 U.S.C. § 5108 (West 1991).  Second, 
if new and material evidence has been presented, immediately 
upon reopening the claim the Secretary must determine 
whether, based upon all the evidence of record in support of 
the claim, presuming its credibility pursuant to Robinette v. 
Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened 
(and as distinguished from the original claim) is well 
grounded pursuant to 38 U.S.C. § 5107(a) (West 1991).  Third, 
if the claim is well grounded, the Secretary may then proceed 
to evaluate the merits of the claim but only after ensuring 
that his duty to assist under 38 U.S.C. § 5107(a) has been 
fulfilled.  Winters v. West, 12 Vet. App. 203, 206 (1999); 
see also Elkins v. West, 12 Vet. App. 209 (1999).

The Board notes that the veteran did not perfect an appeal of 
the August 1979 denial of his claim of entitlement to service 
connection for pes planus.  That rating decision is therefore 
final.  38 U.S.C.A. § 7105 (West 1991).  Therefore, pursuant 
to the Court's holding in Evans v. Brown, 9 Vet. App. 273 
(1996), the Board will consider whether new and material 
evidence has been submitted to reopen the veteran's claim of 
entitlement to service connection for pes planus subsequent 
to the August 1979 rating decision.

Service connection may be established for a disease or injury 
incurred in or aggravated by service, resulting in a current 
disability.  38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. 
§§ 3.303, 3.304 (1999).  Therefore, in order to produce 
evidence which bears directly and substantially upon his 
claims such that it must be considered to fairly decide the 
merits of those claims, the veteran must produce evidence, 
which in conjunction with the evidence already of record, 
shows that pes planus or a bilateral foot disability was 
incurred in or aggravated by his active service or is 
proximately due to or the result of a disease or injury 
incurred in or aggravated by service.  The Board finds that 
there is no new evidence of record which shows that 
connection.

The evidence received subsequent to the August 1979 rating 
decision consists of medical records, statements in support 
of the veteran's claim, and the transcript of the veteran's 
May 1996 personal hearing.

The veteran has submitted medical records subsequent to the 
August 1979 rating decision.  These records relate to the 
treatment of the veteran's current disabilities, to include 
his bilateral foot disability.  However, those medical 
reports do not provide evidence which shows that any current 
pes planus or bilateral foot disability was incurred in or 
aggravated by service.  Therefore, the medical evidence 
submitted subsequent to the Augusts 1979 rating decision, 
while almost entirely new, is not material because it does 
not bear directly and substantially on the specific matter of 
the veteran's claim, as it does not provide evidence that any 
current pes planus or bilateral foot disability is related to 
service.  Such a showing would be required in order for the 
evidence to bear directly and substantially upon the 
veteran's claim such that the evidence would be so 
significant that it must be considered to fairly decide the 
merits of the veteran's claim.

The veteran, in his claims statements and at his personal 
hearing, contends that his current pes planus bilateral foot 
disability is related to his service.  He specifically 
relates that disability to the shoes worn in service and the 
hard ship decks.  However, he has not provided competent 
medical evidence which verifies that any current pes planus 
or bilateral foot disability was incurred in or aggravated by 
service or is proximately due to or the result of any disease 
or injury incurred in or aggravated by service.  These 
statements relating to his claim are essentially the same 
assertions made in connection with the prior claim, and 
therefore, do not constitute new evidence.  Furthermore, 
where a claim involves issues of medical fact, such as 
medical causation or medical diagnoses, competent medical 
evidence is required.  Grottveit v. Brown, 5 Vet. App. 91, 
92-93 (1993).  Lay persons are not qualified to render a 
medical opinion concerning medical causation.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).  The veteran 
simply has not submitted competent medical evidence which 
shows that any current pes planus or bilateral foot 
disability was incurred in or aggravated by service or is 
related thereto, or that any current pes planus or bilateral 
foot disability is proximately due to or the result of any 
disease or injury incurred in or aggravated by service.  
Therefore, the veteran's claims statements are not material 
as they do not bear directly and substantially upon the 
veteran's claim such that they must be considered in order to 
fairly decide the merits of the claim.

The Board finds that the veteran has not submitted evidence 
which shows that any current pes planus or bilateral foot 
disability was incurred in or aggravated by service, or is 
etiologically related to service, or is proximately due to or 
the result of any disease or injury incurred in or aggravated 
by service.  Such evidence would be required in order for any 
new evidence to be material.  Accordingly, the Board finds 
that new and material evidence has not been received to 
reopen the veteran's claim of entitlement to service 
connection for pes planus and that claim is not reopened.


ORDER

New and material evidence has not been submitted to reopen a 
claim of entitlement to service connection for pes planus, 
and the benefits sought on appeal with regard to that 
disability remain denied.




		
	M. W. GREENSTREET
	Member, Board of Veterans' Appeals