BVA9503901 DOCKET NO. 90-25 070 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a shell fragment wound, right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from August 1966 to August 1968. He served in Viet Nam from February 1967 to February 1968. Service connection for residuals of a shell fragment wound, right lower leg was denied by the Board of Veterans Appeals (the Board) in January 1989. This case was before the Board in January and October 1991 when it was remanded for additional development. The case has been returned to the Board, by the Department of Veterans Affairs (VA) Newark, New Jersey, Regional Office (RO) for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the evidence of records shows that his shell fragment wound injury in service was to his right leg and not his left, that the current right leg disability is directly related to the injury in service, and that he has provided new and material evidence to reopen his claim for service connection for residuals of shrapnel wound, right lower extremity. 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 submitted to reopen a claim for service connection for residuals of a shell fragment wound, right lower extremity. FINDINGS OF FACT 1. The Board, in a decision in January 1989 denied entitlement to service connection for residuals of a shell fragment wound, right lower leg, and interosseous ganglion of the right distal tibia. 2. Evidence submitted since the January 1989 decision does not show injury , right lower extremity during service or that myxoma of the right tibia, diagnosed after service, is related in any manner to service; the recently submitted evidence does not offer a reasonable possibility that it would change the outcome when considered with the previous evidence of record. CONCLUSIONS OF LAW 1. The decision of the Board in January 1989 denying service connection for residuals of a shell fragment wound, right lower leg is final. 38 U.S.C.A. §§ 5107(a), 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1994). 2. Evidence submitted since the January 1989 denial is not new and material, and the veteran's claim for new and material evidence to reopen a claim for entitlement to service connection for residuals of a shell fragment wound, right lower extremity is not reopened. 38 U.S.C.A. §§ 5107(a), 5108, (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Veterans Appeals (the Court), in Glynn v. Brown, 6 Vet.App. 623 (1994), held that in cases of a reopened claim, the Board must consider the evidence submitted since the last final denial of the claim on the merits. In this case, the last final denial of the claim for service connection for residuals of a shell fragment wound , right lower extremity on the merits, was in January 1989. Therefore, the Board will consider all of the evidence submitted since that time. To reopen a claim following a final decision, the veteran must submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.104, 3.160 (1994). New and material evidence means evidence not previously submitted which bears directly and substantially upon a 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) (1994). The Court has stated that the evidence must be relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171 (1991). [w]hen a veteran seeks to reopen his or her claim under [38 U.S.C.A.] section 5108, the BVA must conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous BVA decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of the other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). In the January 1989 decision, the Board reviewed the veteran's service medical records, records of VA and private treatment for the veteran in the 1980's, and the veteran's hearing testimony in December 1987. Based on the evidence of record, the Board found that while a shell fragment wound of the left lower leg was noted in the service medical records, a shell fragment wound of the right lower leg was not demonstrated in service or thereafter. The Board concluded that the postoperative residuals of the right distal tibia were not related to service. Service connection for residuals of a shell fragment wound, right lower leg was denied. Medical evidence received since January 1989 consists of VA medical records from 1987 to 1993; a statement from Sister M. Mahon, dated in July 1988; a statement from W. Pedowitz, M.D., dated in May 1989; the veteran's enlisted qualifications records; records from private physicians, showing treatment for the veteran from 1980 to 1987 and in 1993; and excerpts from medical texts discussing myxoma. Essentially, the private and VA clinical records show recent treatment for right lower extremity disability. The clinical records do not address the etiology of the right lower extremity disability. The medical text article on myxoma does not offer a medical opinion as to etiology of the veteran's post-service myxoma. The July 1988 statement from Sister M. [redacted] was to the effect that when the veteran returned home from Viet Nam, he displayed to his family evidence of injury sustained in Viet Nam, and that the injury was to the shin and lower area of his right leg. Competent lay testimony is limited to that which the witness has actually observed, and is within the realm of his/her personal knowledge. Lay testimony is not competent to prove a matter requiring medical expertise, and is competent only when it regards the symptoms or features of an injury or illness. Layno v. Brown, 6 Vet.App. 465 (1994). While Sister [redacted] recalls that she saw evidence of an injury to the right shin, she does not possess the medical expertise to identified the nature of that injury. The May 1989 statement from W. Pedowitz, M.D. reported treatment of the veteran in 1986 and 1987, and that it seemed that the veteran's distal tibial problem was a direct result of shrapnel injuries and war wounds. Dr. Pedowitz opined that the interosseous ganglion of the bone developed subsequent to the trauma in service and was know to form after trauma, and everything related to the leg was the result of the service injury. It appears that the physician's opinion regarding the etiology of the right leg impairment was based on self-serving statements made by the veteran and are not based on an independent review of the service medical records. Statements of private physician's of the veteran's medical history, related by the veteran, as to remote events are of inherently much lesser probative value than contemporaneous clinical records. Harder v. Brown, 5 Vet.App. 183, 188 (1993). There is no evidence that during service an injury to the right leg occurred. When examined by the VA in November 1992, the history of the injury, right lower extremity, as reported by the veteran, was that his right boot was hit by a piece of shrapnel that did not penetrate. He had no problems at that time, acutely or afterwards, until about 1986. The VA examiner in November 1992 concluded that the veteran had a myxoma of the right distal tibia in 1987, that he did not find medical textual material that related a myxoma to trauma, and that he did not think the myxoma was due to any minimal trauma, as described by the veteran, 20 years after the event. The examiner also noted that reflex sympathetic dystrophy, also diagnosed for the right lower extremity, was secondary to the surgery for the myxoma. In regard to the history as provided by the veteran in November 1992, the Board notes that in his original application for disability benefits in September 1986, he reported hospital treatment for shrapnel wound of the right leg in February 1968. When examined by the VA in November 1986 he reported that the shell fragment wounds were essentially burns from a shell burst, involving the left face, chest and right leg. In hearing testimony in December 1987 the veteran reported a bleeding burn wound to the right shin in service. A VA anesthesiologist, in June 1993, reported that the veteran's right leg condition dated back to an injury he received while on active military service. Again, the presumption of credibility does not arise. It does not appear that the anesthesiologist had reviewed that veteran's service medical records. Having reviewed the evidence associated with the claims folder since the 1989 Board decision, it is concluded that this evidence while new, in that it has not been previously considered by the Board, is not material to the claim and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) 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. Cox v. Brown, 5 Vet.App. 95 (1993). "Service connection for residuals of a shell fragment wound, right lower extremity requires objective evidence establishing injury of the right lower extremity during service, continuity of symptomatology after service, or credible supporting evidence of a link between the right lower extremity disability first manifested in the mid 1980's, and the claimed injury in service." 38 C.F.R. § 3.303(a)(b)(d) (1994). The veteran has not submitted any evidence showing injury to the right lower extremity in service, and in fact has made contradictory statements concerning the nature of the shell fragment wound to the right leg. He has never submitted any medical evidence showing a relationship between the post-service myxoma and service, and he is not shown to possess the medical expertise to determine the etiology of his various medical symptoms or their relationship to service, and his claims of medical causation are of limited probative value. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, new and material evidence sufficient for reopening the claim for service connection for residuals of a shell fragment wound, right lower extremity has not been presented. 38 U.S.C.A., § 5108; 38 C.F.R. §§ 3.156, 20.1105. In conclusion, the additional evidence contains no confirmatory or objective proof that the veteran sustained a shell fragment wound of the right lower leg during service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303. To conclude, in the absence of new and material evidence, this claim may not be reopened. ORDER New and material evidence not having been submitted to reopen the claim for service connection for residuals of a shell fragment wound, right lower extremity; the appeal is denied. RENÉE M. PELLETIER 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.