Citation Nr: 0002267 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-10 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for allergic reaction. REPRESENTATION Appellant represented by: Army and Air Force Mutual Aid Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran had active service from June 1962 to September 1986. FINDINGS OF FACT 1. In a decision of January 1997, the Board denied entitlement to service connection for allergic reaction on the basis that there was no competent medical evidence of record showing a nexus between a current disability and any incident or manifestation during the veteran's period of active service. 2. Additional evidence received since the January 1997 Board decision, when considered alone or in conjunction with all of the evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the veteran's claim. CONCLUSIONS OF LAW 1. A decision by the Board in January 1997, denying entitlement to service connection for allergic reaction, is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1999). 2. The veteran has not submitted new and material evidence to reopen the claim of entitlement to service connection for allergic reaction, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 20.1105, 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a January 1997 decision, the Board denied the veteran's claim of entitlement to service connection for allergic reaction on the basis that he had not submitted medical evidence of a nexus between a current skin disorder and an injury or disease during service. The veteran has attempted to reopen his claim for service connection, and his case is once again before the Board for appellate review. However, because the January 1997 Board decision is final, the veteran's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). Consideration of whether new and material evidence has been submitted is required before the merits of a claim can be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether a claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New and material evidence" means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of prior evidence 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). In the recent case of Winters v. West 12 Vet. App. 203 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West 12 Vet. App. 209 (1999) (en banc), held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, VA may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In this case, since the January 1997 final adjudication, the additional evidence relating to the claim of service connection for allergic reaction includes a statement from Colonel W.H.E., received in August 1997, indicating that the veteran had an extreme reaction to a sumac, which was thought to be poison ivy, while he was on active duty. Colonel E. further stated that, in the fall of 1977, the veteran developed a severe rash that extended across his stomach, down both of his legs and covering both arms. Colonel E.'s statement is, the Board finds, "new", as it was not previously of record, but it is not "material", because, as a layman, he is not qualified to offer an opinion on a question of medical causation, see Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992), and, indeed, his statement does not address the medical issue of the etiology of the veteran's current disability. As such, his statement lacks probative value on the issue of whether a current allergic skin disorder is related to an incident or manifestation during the veteran's period of active service. The additional evidence also includes medical records from the Grand Rapids, Michigan, VA Medical Center dated from 1989 to 1998, which contain multiple notations dated between 1990 and 1998 describing the treatment the veteran received for various skin problems, characterized as residual eruptions, rashes with blisters, multiple lipomas, and intradermal nevus. The skin problems were found on various body parts, including the upper and lower extremities, the hands, the back and abdomen, and the head. The VA treatment records are not new, because medical evidence which was of record at the time of the Board's January 1997 decision showed that the veteran had a current, postservice skin disorder. Finally, the additional evidence includes various statements by the veteran, made in correspondence and during a December 1997 personal hearing at the RO, indicating that: he was first treated for a skin reaction to poison ivy in 1977 or 1978, which lasted between 3 and 4 months; he did not have any additional skin reactions between 1980 and 1986; after service, in 1991 or 1992, he once again developed a skin reaction after being exposed to sumac, which is the generic term for poison ivy type plants; and he continues to suffer from an allergic reaction. The veteran's statements are essentially cumulative of statements he made prior to the Board's January 1997 decision and are thus not new. The Board concludes that the veteran has not submitted new and material evidence which would allow a reopening of his claim. Essentially, what was missing at the time of the January 1997 Board decision, and what continues to be missing, is competent medical evidence indicating that there is a nexus or link between the veteran's current skin disorder and symptomatology manifested during active service. As such, the Board finds that the additional evidence submitted, when considered alone or in conjunction with all of the evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As the additional evidence submitted is not "new and material" as contemplated by law, it does not provide a basis to reopen the veteran's claim of service connection for allergic reaction. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for allergic reaction, the appeal is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals