Citation Nr: 0004425 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-09 669 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had prewar service from September 1941 to December 1941, beleaguered service from December 1941 to 1942, and recognized guerrilla service from February 1944 to August 1945. The veteran's claim for entitlement to service connection for a left shoulder disability has been before the Board of Veterans' Appeals (Board) six times previously, in March 1954, January 1956, April 1971, April 1972, November 1988, and most recently in January 1997. FINDINGS OF FACT 1. By decision dated in January 1997, the Board determined that the veteran had not submitted new and material evidence sufficient to reopen a claim for service connection for a left shoulder disorder. 2. The evidence received since the Board's 1997 decision is duplicative, cumulative or not probative; and is not so significant, when viewed in context of all the evidence of record, that it must be considered in order to fairly decide the merits of the case. CONCLUSION OF LAW Evidence received since the Board determined that new and material evidence sufficient to reopen a claim for entitlement to service connection for a left shoulder disorder in 1987 is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Once a claim for service connection has been denied by a decision of the Board, that determination becomes final. New and material evidence must be presented to reopen the case prior to further consideration of the claim. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105 (1999). The veteran's claim of entitlement to service connection for a left shoulder disability was denied by the Board in January 1997 on the basis that he had not submitted new and material evidence sufficient to reopen his claim. It was noted a claim for entitlement to service connection for a left shoulder disability had been before the Board five times previously, in March 1954, January 1956, April 1971, April 1972, and November 1988. It was further indicated that all the evidence presented since the last final denial on any basis (either upon the merits of the case, or upon any previous adjudication that no new and material evidence had been presented), would be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In the present appeal, the last final disallowance of a claim is the January 1997 Board decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). Accordingly, the Board must review, in light of the applicable law and regulations regarding finality, the additional evidence submitted since its previous decision disallowing the veteran's claim in January 1997. The United States Court of Appeals for the Federal Circuit has specifically held that the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and that before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Fulkerson v. West, 12 Vet. App. 268 (1999). "Moreover, once the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon a specific matter under consideration, which is neither cumulative nor redundant, and which may by itself or in connection with evidence previously assembled be 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). In Manio v. Derwinski, 1 Vet. App. 140, 145 (1991) the United States Court of Appeals for Veterans Claims (Court) held that the Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. First, it must determine whether the evidence of record since the last final disallowance is "new and material." Id.. If it is, the Board must then reopen a claim and "evaluate the merits on the veteran's claim in light of all the evidence, both new and old." Id. See also Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Thus, when considering a request to reopen a claim, the Board must first determine whether the evidence is new and material. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). If the Board so determines, the claim is reopened and the Board must then evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Id. The Court has held: The first step of the Manio two-step analysis as to a claim to reopen involves three questions: (1) Is the newly presented evidence "new" (that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record), see Struck v. Brown, 9 Vet. App. 145 (1996), Blackburn v. Brown, 8 Vet. App. 97 (1995); Cox v. Brown, 6 Vet. App. 459 (1994)? Question (2): Is it "probative" of the issue which is at hand (Cox and Colvin) (that is, each issue which was a specified basis for the last final disallowance) (see Struck, supra)? Question (3): If it is new and probative, then, in light of all of the evidence of record, is there a reasonable possibility that the outcome of the claim on the merits would be changed? In Blackburn, the Court indicated that affirmative answers to both Questions 2 and 3 involving the probative nature of the "new" evidence, and a reasonable possibility of outcome change, respectively, were required, in order for "new" items to be "material." Crippen v. Brown, 9 Vet. App. 412, 419 (1996); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is probative, and is material, when it actually tends to prove the merits of the claim; that is, it supplies evidence, the absence of which was a specified basis for the prior denial. Evans v. Brown, at 283-284. The Federal Circuit has invalidated step three of the above analysis, so that it is not necessary that the new evidence raises a reasonable possibility of change in the outcome. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The regulation and the Court decisions require that the new evidence be "so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a). The Federal Circuit has held that the legislative history suggested that the purpose behind the definition contained in Section 3.156 was not to require the veteran to demonstrate that the new evidence would properly change the outcome of the claim; rather, it was to emphasize the importance of review of the complete record for evaluation of a claim. Hodge. In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the decision of the Federal Circuit in Hodge required replacement of the two-step Manio test with the three-step test. Under the three-step test analysis in Elkins, VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) so as to have that finally denied claim reopened under 38 U.S.C.A. § 5108. Second, under the Elkins three-step test, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim and, presuming its credibility, the claim as reopened (and as distinguished from the original claim), is well grounded, pursuant to the provisions of 38 U.S.C.A. § 5107(a). Third, if a claim is well grounded, VA would then proceed to evaluate the merits of a claim but only after a showing that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. Veterans are presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C.A. § 1111 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active 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 (West 1991); 38 C.F.R. § 3.306(a) (1999). Aggravation may not be conceded when 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 (West 1991); 38 C.F.R. § 3.306(b) (1999). In general under pertinent law and VA regulations, service connection requires that evidence that a disease or disorder was incurred in or aggravated by service or that the disease or disorder is otherwise attributable to service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The evidence obtained since the Board's final disallowance consists of communications from the veteran and his sister, and communications from several private physicians. Included is an April 1997 statement from Carmelo Lim Roco, M.D., who indicated that the veteran had been under his care since November 1993. He stated that the veteran had a past medical history of left shoulder blunt trauma since March 1942. Current diagnoses included left shoulder osteoarthritis/tendinitis. An April 1998 communication from the physician indicated the veteran was under his care for problems which included degenerative arthritis and tendinitis of the left shoulder. An August 1998 statement from the physician is without reference to the veteran's left shoulder. In June 1997, the veteran's sister reported that prior to induction into the military, the veteran had never been sick. She stated that when he returned home in August 1942, he indicated that he had fallen from a cliff and dislocated his left shoulder joint in March 1942. She related that he had continuing pain in the left shoulder ever since. In his substantive appeal dated in June 1998, the veteran reported that he underwent a physical examination, to include an X-ray study, around the time of his induction in September 1941. He believed that the records of all physical examinations were "deposited at the records section at Camp Lapu-Lapu." He further related that he received treatment at the Regimental Hospital at Monkayo, Davao, in 1942. However, he then added that "all records were all destroyed during the Japanese Army Occupation in the Philippine Islands." Received in April 1999 were several color photographs of the veteran. Received in May 1999 was an undated medical certificate signed by James Albacete, M.D., which was to the effect that the veteran had been examined and treated by him in March 1999. The veteran's diagnoses included "degenerative osteoarthritis." No specific mention was made of the left shoulder. Also received in May 1999 were medical records from the Doctors Medical Center, Pinole, California. The records are with reference to left shoulder complaints or abnormalities. Also received in May 1999 was an August 1998 statement from a social worker indicating the veteran had been hospitalized because of a stroke. No reference was made to problems with his left shoulder. In utilizing the evidence obtained since the last final disallowance in 1997, none of the medical evidence relates a left shoulder disability to service. As such, the medical evidence is not so significant that it must be considered in order to fairly adjudicate the veteran's claim. The communications from Dr. Lim Roco do not specifically address whether or not the veteran's left shoulder disability was incurred in or aggravated by active service. The physician indicated in one of his communications that he did not begin treating the veteran until 1993, a time many years following service discharge. The additional medical evidence which has been associated with the file is in no way probative as to the etiology of any left shoulder disability. The statement from the veteran's sister is based on her recollection of the veteran's status when she saw him a number of months following the alleged fall from a cliff in 1942. However, only individuals possessing specialized medical training or knowledge are competent to render opinions regarding medical diagnosis or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that either the veteran or his sister currently has a recognized degree of medical knowledge that would render an opinion by either as to medical diagnosis or causation competent. The statements from the veteran repeat contentions previously made and are therefore basically cumulative of evidence previously considered. The undersigned notes that while in his June 1998 statement the veteran refers to medical treatment at a regimental hospital and at Camp Lapu-Lapu, he himself indicated that all such records were eventually destroyed by the Japanese Army and are, therefore, not available. In view of the foregoing, the evidence received since the Board's 1997 decision is duplicative, cumulative, or not supportive of the issue at hand. Accordingly, new and material evidence has not been received and the claim is not reopened. ORDER New and material evidence not having been received, the claim of entitlement to service connection for a left shoulder disability remains denied. Robert E. O'Brien Acting Member, Board of Veterans' Appeals