BVA9500436 DOCKET NO. 93-08 848 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for McArdle's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from August to December 1970. A Board of Veterans' Appeals (Board) decision dated in September 1987 denied the veteran's claim of entitlement to service connection for McArdle's disease. An expanded section of six member's of the Board reconsidered the September 1987 decision in April 1989, and upheld the prior denial. The matter is currently before the Board on appeal from a September 1992 rating decision of the Department of Veterans Affairs (VA) Roanoke, Virginia, Regional Office (RO) which denied the veteran's request to reopen his claim on the issue of service connection for McArdle's disease. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that recently submitted evidence is both new and material to his claim and, therefore, the Board should reopen the claim and decide the issue of service connection for McArdle's disease on the merits. Furthermore, it is asserted, essentially, that the recently submitted evidence, when taken in conjunction with all the evidence of record, establishes that McArdle's disease was aggravated in service and, therefore, a grant of service connection for this disorder is warranted. 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 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 to reopen a claim of service connection for McArdle's disease has not been submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A Board decision dated in September 1987 and a subsequent reconsideration in April 1989 denied the veteran entitlement to service connection for McArdle's disease. 3. Evidence submitted since the Board's denial of service connection for McArdle's disease is cumulative in nature and when considered in the context of all the evidence of record it does not raise a reasonable possibility of changing the outcome of the Board's prior determination. CONCLUSION OF LAW Evidence received since the Board denied entitlement to service connection for McArdle's disease in September 1987 is not new and material, and the veteran's claim for this benefit is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is noted that the veteran's claim is well grounded; that is, it is plausible and capable of substantiation. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Pursuant to 38 U.S.C.A. § 5108 (West 1991) the Secretary must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 7104 (West 1991). On claims to reopen, the Board must conduct a two-step analysis. Harris v. Derwinski, 1 Vet.App. 180 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". If it is, then the Board must adjudicate the claim on the basis of all the evidence, both new and old. Jones v. Derwinski, 1 Vet.App. 210 (1991). "New" evidence is "that which is not merely cumulative of other evidence of record". Cox v. Brown, 5 Vet.App. 95 (1993). "Material" evidence is that which is relevant to and probative of the issue at hand, and of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Justus v. Principi, 3 Vet.App. 510 (1992). The preliminary question to be answered in this case is whether the evidentiary record contains new and material evidence which would justify a reopening of the claim, and a review of the former denial by the Board. 38 U.S.C.A. § 5108 (West 1991). In order to determine whether evidence submitted by the appellant is new and material for the purpose of reopening his claim, it is first necessary to review the evidence that was of record in September 1987 when the Board considered the claim. The veteran, in September 1987, was seeking service connection for McArdle's disease on the basis that his inservice participation in strenuous physical activity had caused a chronic aggravation of the disease, which had pre-existed service, and, therefore, the veteran was entitled to service connection under the pertinent law. 38 U.S.C.A. §§ 1110, 1153 (formerly §§ 310, 353)(West 1991); 38 C.F.R 3.306(a) (1993). The Board rejected this claim on the basis that the evidentiary record did not demonstrate that the pre-existing pathology was aggravated by service. The evidentiary record before the Board indicated that for 3 to 4 years prior to service the veteran had had symptoms of hematuria, and that prior to service entrance, had received a diagnosis of hematuria secondary to glomerulonephritis. The evidentiary record also consisted of service medical records which indicated the veteran had had recurrences of hematuria during service and had received a diagnosis of probable chronic glomerulonephritis. The service medical records also contained the report of a service discharge examination dated in December 1970 which indicated that the symptoms associated with the suspected pathology had existed prior to service and had not been aggravated by service, but that the physical examination was essentially normal. The record before the Board in 1987 also contained post service clinical evidence from VA and private physicians reflecting that between 1970 and 1984 the veteran received treatment for recurring hematuria. In 1984 the veteran's recurring symptomatology was diagnosed as McArdle's disease by J. R. Mendell, M.D. In a June 1984 letter addressed to the veteran's family Dr. Mendell indicated that the veteran had had a problem with limitation of muscle exercise for all of his life and that this limitation was a significant symptom of McArdle's disease. This letter cited as examples of the veteran's muscle limitation, the veteran's inability as a child to run as far as his peers, and his inability, in service, to complete long hikes without difficulty. The prior symptoms of hematuria were explained and said to be related to McArdle's disease. A second letter from this physician, dated in July 1985, was also of record. This was to the effect that a forced march type of activity (such as the veteran had experienced in service) could exacerbate McArdle's disease, and that the symptomatology the veteran had had in service was consistent with McArdle's disease. The evidence on file in 1987 also included a transcript of the veteran's testimony given at a personal hearing held at the RO in December 1985. The veteran essentially contended and testified to the effect that the symptoms associated with McArdle's disease were greater and more frequent post service than they were preservice. Also part of the record before the Board in 1987 was the report of a physical examination conducted in April 1986 by Gary Williams, M.D.; and a letter from this same physician dated in April 1987. The 1986 examination indicated, in pertinent part, that the veteran had had symptoms associated with McArdle's disease that dated back to the veteran's childhood. The April 1987 letter stated that the high level of physical activity the veteran engaged in while in the military exacerbated his illness. The Board considered the above evidence and concluded, in essence, that weight of the evidence did not demonstrate that an inservice aggravation of the veteran's pre-existing pathology had occurred during his five months of service, and that under the applicable law service connection for the pathology was not warranted. 38 U.S.C.A. §§ 1110, 1153(formerly §§ 310, 353) (West 1991); 38 C.F.R. 3.306(a) (1993). In support of his attempt to reopen his claim, the veteran has submitted into the record a letter from Gary Williams, M.D., dated in July 1992. This states, essentially, that the veteran continues to suffer from McArdle's syndrome with the consequence that he has to limit his activities to extremely light duty in order to avoid excessive muscle breakdown. This letter is the only evidence the veteran has offered in support of his attempt to reopen his claim aside from his written assertions that the service activities in which he participated chronically aggravated the McArdle's disease. By definition, new and material evidence is that which has not been previously submitted to VA decision makers and which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself, or in conjunction 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). Colvin v. Derwinski, 1 Vet.App. 171 (1991). The letter from Dr. Williams letter dated in July 1992 is essentially cumulative. It describes the ongoing symptoms associated with McArdle's disease and the limitations that this disorder imposes on the veteran's activities. Such information is not new. The same type of information was before the Board when it made its original decision denying service connection in 1987. Furthermore, the letter from Dr. Williams is not material. It offers no reasonable possibility, when viewed in conjunction with all the evidence, both new and old, of changing the outcome. Dr. Williams' 1992 letter is not relevant to the question of whether the veteran's pre-existing McArdle's disease became worse in service. The veteran's assertions that his disorder was aggravated in service are similar to those previously presented, and, in any event, are not competent evidence to establish a medical fact. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Since the evidence that the veteran has produced in conjunction with his attempt to reopen his claim is neither new nor material, the claim cannot be reopened. 38 U.S.C.A. 5108, 7104 (West 1991); 38 C.F.R. 3.156(a) (1993) ORDER New and material evidence not having been submitted, the claim for service connection for McArdle's disease is not reopened. JOAQUIN AGUAYO-PERELES 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.