BVA9502509 DOCKET NO. 91-45 347 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim for entitlement to service connection for back disability and, if so, whether all of the evidence, old and new, warrants a grant of that benefit. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from February 1951 to October 1953. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1988 rating decision by the San Francisco, California, Regional Office (RO). A notice of disagreement was received in October 1989. The veteran appeared at a personal hearing in January 1990, and a statement of the case was issued in May 1990. A substantive appeal received in June 1991 was accepted by the RO as timely pursuant to 38 C.F.R. § 3.109(b) (1993). By decision dated in May 1992, the Board found, among other things, that a prior RO decision in March 1973 denying entitlement to service connection for back disability was final and that new and material evidence had not been received to reopen that claim. The veteran appealed to the United States Court of Veterans Appeals (Court), and in an August 1993 memorandum decision, the Court vacated the May 1992 Board decision as it pertained to the back disability issue and remanded the case for further development. [citation redacted]. By decision dated in January 1994, the Board remanded the case to the RO for further development in accordance with the Court's directives. A supplemental statement of the case was issued in August 1994, and the case is now again before the Board for appellate review. The veteran is represented by the Military Order of the Purple Heart. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran and his representative that new and material evidence has been submitted to reopen his claim for entitlement to service connection for back disability. It is maintained that the new evidence submitted since 1973 shows that the veteran's preexisting back problem was aggravated during his period of military service and that this problem has continued over the years. The veteran specifically contends that he fell down an embankment while wearing a heavy back pack while serving in Korea and that his back problem was aggravated by this fall. 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 new and material evidence has not been received to reopen the veteran's claim for entitlement to service connection for a back disability. FINDINGS OF FACT 1. Entitlement to service connection for a back disability was denied by rating decision in March 1973, and the veteran did not initiate an appeal. 2. Evidence received since the RO's March 1973 decision does not raise a reasonable possibility that a review of the entire record would result in a different outcome on the veteran's claim for entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The RO's rating decision of March 1973 denying entitlement to service connection for a back disability is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. New and material evidence has not been received since the RO's March 1973 final decision denying entitlement to service connection for a back disability, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By rating decision in March 1973, the RO denied a claim by the veteran for entitlement to service connection for, among other things, a back disability. Both the veteran and the service organization representing him at that time were notified of that determination and provided notice of appeal rights and procedures. No appeal was perfected, and the March 1973 decision therefore became final. 38 U.S.C.A. § 7105(c) (West 1991). However, the claim may be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108 (West 1991). When considering whether new and material evidence has been presented or secured to reopen a final claim, the Court has held that a two-step analysis is to be applied. Manio v. Derwinski, 1 Vet.App. 140 (1991). This two-step analysis consists of first determining whether new and material evidence has been submitted. "New evidence is evidence that is not 'merely cumulative of other evidence of record'." Masors v. Derwinski, 2 Vet.App. 181, 186 (1992) (quoting Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991)). Moreover, to be "material evidence" the evidence must not only be relevant to and probative of the issue at hand, but also 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). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). If the RO reviews all the evidence submitted since the prior rating decision and determines that the evidence is new and material to reopen the claim, the claim is reopened and then the second step is employed. This second step in the Manio analysis, used only in the event the RO determines that new and material evidence has been submitted or secured, consists of a review of all the evidence, both old and new, to determine whether the benefit sought on appeal should be granted. Turning to the record, the Board observes that at the time of the March 1973 rating decision, the RO had before it the veteran's service medical records, the reports of VA hospitalizations and examinations dated in the 1960's and 1970's, statements and medical reports from several private physicians, including Doctors Sundre, Hashiba, and Graveline. Additionally, the RO considered lay statements from the veteran's sister (Ms. Stewart) and from other individuals who had served with the veteran (Mr. Farras) or were personal friends (Messrs. Rizzi and Arabia). After reviewing this evidence, the RO determined that the evidence was not sufficient to show service origin or aggravation of a preexisting back disability for purposes of establishing entitlement to service connection. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1993). As noted above, the veteran did not initiate an appeal from the RO's March 1973 denial, and that decision therefore became final. Evidence received since March 1973, includes VA medical reports showing continuing treatment for, among other things, back symptomatology. Also of record are several statements from private physicians also documenting such treatment. While this evidence may be new in the since that it was not of record in March 1973, there is nothing in these items of newly received medical evidence, other than the same basic history as related by the veteran prior to March 1973, which in any way tends to show a link between his back complaints and his military service. These records merely confirm that the veteran has continued to seek medical attention for back problems over the years. However, the fact that the veteran was receiving treatment for back complaints was already documented as of March 1973, and this evidence must therefore be considered cumulative in nature and not "new" evidence as that term is used for purposes of determining whether the veteran's claim has been reopened. Other evidence received since March 1973 consists of duplicate copies of the various physician statements and lay statements which were already in the claims file as of March 1973. This evidence is clearly not "new" evidence. Further, testimony offered by the veteran at the January 1990 personal hearing must also be considered cumulative in nature since the veteran essentially reiterated the same history and contentions which had been considered by the RO in March 1973, including his contention regarding suffering a fall wearing a heavy backpack while serving in Korea. The veteran has also submitted a February 1994 statement from his spouse to the effect that she first met the veteran in 1954 and that he has been experiencing continuous back pain since that time. Again, the fact that the veteran has been experiencing back pain over the years may not be considered "new" since the existence of back pain was already documented as of March 1973. Therefore, this letter from the veteran's spouse must also be considered cumulative in nature. It merely documents the veteran's complaints of pain since 1954 and does not offer any information tending to link that pain to the veteran's service. Moreover, even if the veteran's spouse had offered any opinion as to the causation of the back pain, it has not been demonstrated that she has the required medical knowledge to render such an opinion probative to the underlying question of medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Finally, evidence received since March 1973 includes copies of Social Security records showing that disability was established under that program as of 1977. However, this evidence relates to the veteran's condition in 1977 and is not probative to the question of whether any back disability is related to the veteran's military service in the early 1950's. To summarize, the RO had before it in March 1973 various items of evidence showing that the veteran had suffered a pre-service back injury and evidence of medical treatment for back problems since service. The RO considered the veteran's contentions (including the contention regarding a fall while wearing a backpack) in light of that evidence, and it was the decision of the RO that the veteran's back disability preexisted his service and was not aggravated by service. Therefore, what is now necessary for the veteran to reopen his claim is relevant evidence which was not of record as of March 1973 and which, assuming its credibility, tends to show that there was either aggravation of the preexisting back condition as a result of military service or that a separate back disability was otherwise acquired in service. The evidence submitted since March 1973 simply adds nothing to the record that was not considered by the RO in March 1973, and does not, in the Board's opinion, raise a reasonable possibility that a review of the entire record would change the outcome of the March 1973 rating decision. No new and material evidence having been received, the veteran's claim for entitlement to service connection for a back disability has therefore not been reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991). ORDER The appeal is denied. EUGENE A. O'NEILL 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.