BVA9500369 DOCKET NO. 93-07 109 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen a claim for a nasal disorder including sinusitis and allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from January 1942 to August 1943. In a decision dated August 10, 1990, the Board of Veterans' Appeals (Board) denied entitlement to service connection for a nasal disorder, including sinusitis and allergic rhinitis. Although the Board did decide that evidence which had been received after prior final decisions did not materially alter the evidentiary basis available, it is clear that the decision rested on a "de novo" analysis in that it addressed and assessed all the evidence then of record and applied the law governing original claims. If new and material evidence has been received since the last final denial of the merits of a claim, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; Glynn v. Brown, 6 Vet.App. 523 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a nasal disorder, including sinusitis and allergic rhinitis, was aggravated during active service. He asserts that he was treated at the "E.E.N.T. Clinic" at Ft. Devens in service, and that these records are not in the claims file. 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 claim. FINDINGS OF FACT 1. Service connection was denied for a nasal disorder including sinusitis and allergic rhinitis by the Board in August 1990. 2. The evidence and contentions submitted since the August 1990 Board decision pertinent to a nasal disorder are repetitive of contentions and evidence submitted before August 1990. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen a claim of service connection for a nasal disorder. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The August 1990 Board decision which denied service connection for a nasal disorder is final, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b)(1994). A pre-existing disease or injury will be considered to have been aggravated by active service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity in service. This includes medical facts and principles which may be considered to determine whether the increase was due to the natural progress of the condition. Aggravation of a pre-existing disease or injury may not be conceded where the condition underwent no increase in severity during service on the basis of all of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including post operative scars, or absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1994). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). On February 8, 1950, the Board of Veterans' Appeals denied entitlement to service connection for a nasal condition. In reaching its decision, the Board acknowledged that no pertinent defect was noted at induction. The Board observed that partial nasal obstruction, left side, was reported in February 1943, and that he was treated for subacute tonsillitis, allergic rhinitis, and nasal sinusitis. In April 1943, the air passages were stated to be adequate. Information was elicited during service which was to the effect that the veteran had had severe hay fever for five years. The Board also noted that no pertinent defect was noted at the time of the veteran's discharge. The Board concluded, after considering various statements made by the veteran and others, including private physicians, that a nasal condition clearly and unmistakably existed prior to entering service and that the evidence did not establish aggravation of such pre-existing disease. As indicated, the last final denial on the merits of the present application was the August 1990 Board decision. Evidence available prior to that decision included service medical records. That evidence established that at service entrance examination in January 1942, there were no apparent pertinent abnormalities. The veteran was treated from February to March 1942 for influenza and recovery was uneventful. According to an examination report from the station hospital at Fort Devens, dated October 1,1942, the veteran's nose and throat, as well as his respiratory system, were described as normal. A March 1943 X-ray showed that the paranasal sinuses had densa antra, more so on the left side than the right. The veteran complained of allergic rhinitis in June 1943 with pain in the nose and forehead. There were reportedly no symptoms of rhinitis. In August 1943 at separation examination, the veteran was noted to have had severe hay fever of 5 years' duration which existed prior to induction. Evidence received since the August 1990 Board decision includes assertions by the veteran which essentially repeat those presented prior to August 1990. The other evidence received since the August 1990 Board decision is a packet of duplicate copies of the veteran's service medical records. This evidence was received after the case was forwarded to the Board, and, as it is duplicative of evidence already considered by the regional office, it will not be returned there for review. 38 C.F.R. § 20.1304 (1994). Also received were, with one exception, duplicates of Daily Sick Reports which were previously of record. This "new" evidence does include a reference to the veteran's having been taken sick on "4-30-43" and that the disposition was "Duty." The nature of the condition is not identified. This evidence is not probative of an increase in pathology of any nasal disorder during service. Under these circumstances, we perceive no useful purpose in remanding this appeal under 38 C.F.R. § 20.1304 . After review, the current contentions essentially restate argument previously presented and are, therefore, not new and material. There is, moreover, no persuasive indication that additional service medical records are available. The Board is satisfied that the provisions of 38 U.S.C.A. § 5107 are met, and that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. Accordingly, as no new and material evidence has been received, the August 1990 Board decision is final, and the claim remains denied. ORDER New and material evidence not having been received to reopen the claim for service connection for a nasal disorder, including sinusitis and allergic rhinitis, the claim remains denied. JOHN E. ORMOND 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.