Citation Nr: 0001496 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-07 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a seizure disorder. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from February 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 1985, the RO denied entitlement to service connection for a seizure disability. The veteran was informed of this decision in June 1985, and he did not timely disagree. The claim thus became final. The veteran has attempted to reopen his claim, and this appeal ensued after the RO found that no new and material evidence had been received to reopen the claim. In October 1998 and again in June 1999, the Board remanded the claim to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. In a decision dated in May 1985, the RO denied entitlement to service connection for a seizure disorder. The veteran did not timely appeal the decision, and it became final. 2. The evidence added to the record since the May 1985 RO decision does not bear directly and substantially upon the specific matter under consideration, is either cumulative or redundant, and by itself or in connection with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The May 1985 RO decision which denied service connection for a seizure disability is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 2. Evidence received since the May 1985RO decision is not new and material; and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.1103 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). If a seizure disability is manifested to a compensable degree within the first post-service year, it may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). If new and material evidence is presented or secured with respect to a claim that has been denied, the claim will be reopened, and the claim decided upon the merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5107 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). "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) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). Rather, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. The Court recently announced a three-step test with respect to reopening and deciding cases involving prior final decisions. Under the Elkins test, VA must first determine whether the veteran has submitted new and material evidence under § 3.156 to reopen the claim; and if so, VA must determine whether the claim is well grounded based on a review of all the evidence of record; and lastly; if the claim is well grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999); Elkins v. West, 12 Vet. App. 209, 218-19 (1999). Evidence is new when not merely cumulative of other evidence in the record, and material when relevant and probative of the issue at hand. Godwin v. Derwinski, 1 Vet. App. 419 (1990). The Court has defined material evidence as that which is relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In January 1985, the veteran submitted a claim of entitlement to service connection for seizures. He reported that the seizures began in 1976. In a March 1985 statement he reported that when he was separated from service, he began to have seizures. In May 1985, the RO denied entitlement to service connection for a seizure disorder. This decision was based on service medical records, which were negative for a finding of a seizure disorder, and on private medical records which showed complaints for a seizure disorder beginning in 1984. It was noted that the veteran gave a two year history of seizures. A private physician noted in March 1985 that he had been treating the veteran for seizures from April 1984. The RO also considered an April 1985 VA examination report which noted that the veteran was taking anticonvulsive medication and that his last seizure had occurred one month prior. The veteran reported that he had had seizures since prior to 1981, but did not know what they were since they were happening in his sleep. An EEG was normal. History of seizures was diagnosed. In May 1985, the RO found that there was no finding of a seizure disorder in service or within the first post-service year, and the claim was denied. The veteran was informed of this decision in June 1985, and he did not timely appeal. The decision therefore became final. Evidence submitted since the May 1985 decision consists of a November 1996 report of a VA examination. It was noted by way of history that the veteran was status post onset of grand mal seizure disorder in 1973 and that his last seizure was two months prior. It was reported that he was taking medication and was not allowed to drive. The impression was, seizure disorder with grand mal seizures, most recent seizure two months ago; current medications include Tegretol and Dilantin. It was noted on a VA epilepsy and narcolepsy examination consultation sheet that the impression was grand mal seizure disorder secondary to alcoholism. Also submitted were records of private treatment of the veteran by Dr. Patricia Bacon dated beginning in 1997 which show findings of a seizure disorder. When a claimant seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). In order to reopen a finally denied claim there must be new and material evidence presented since the claim was last finally disallowed on any basis, not only since the claim was last denied on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Under Evans, evidence is new if not previously of record and is not merely cumulative of evidence previously of record. The Board is of the opinion that the appellant has not presented evidence which is new and material to warrant the reopening of his claim. The November 1996 VA examination results are essentially cumulative in that the veteran was diagnosed as having a seizure disability and was taking medication, which was known at the time of the prior rating decision. The private treatment records received from Dr. Bacon are dated beginning in 1997 and are also cumulative and not probative of the issue of whether the veteran's seizure disability was incurred in service on within the first post- service year. The VA examination report which shows a seizure disorder beginning in 1973 is not new. This statement was based on a history provided by the veteran and as such is a recitation of his contentions that his seizure disorder began many years ago. This contention was previously considered in the May 1985 decision. In Reonal v. Brown, 5 Vet. App. 458 (1993) the Court held that the presumption of credibility (Justus v. Principi, 3 Vet. App. 510 (1992)) did not arise or apply to a physician's statement relating the veteran's current disability to service where the opinion was based on history related by the veteran which had previously been considered and rejected in a prior final RO decision. The Court has stated that such evidence cannot enjoy the presumption because a medical professional is not competent to opine as to matters outside his scope of expertise, and a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). As the Board noted earlier, the Court recently announced a three-step test with respect to new and material cases. Under the new Elkins test, VA must first determine whether the veteran has submitted new and material evidence under 38 C.F.R. § 3.156 to reopen the claim; and if so, VA must determine whether the claim is well grounded based on a review of all the evidence of record; and lastly, if the claim is well grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The Board finds that in this instance, the evidence received since the May 1985 RO decision is cumulative or duplicative of the evidence previously considered. As new and material evidence has not been submitted to reopen the veteran's claim for service connection, the first element has not been met. Accordingly, the Board's analysis must end here. Butler v. Brown, 9 Vet. App. at 171 (1996). ORDER The veteran not having submitted new and material evidence to reopen the claim of entitlement to service connection for a seizure disorder, the appeal is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals