Wilson v. Derwinski

FARLEY, Associate Judge, filed the opinion of the Court in which HOLDA-WAY, Associate Judge, joined. STEIN-BERG, Associate Judge, also joined and filed a concurring opinion. FARLEY, Associate Judge: Appellant William F. Wilson seeks review of a June 7, 1990, Board of Veterans’ Appeal (BVA or Board) decision denying service connection for a back disability. We hold that appellant failed to submit sufficient new and material evidence to warrant the reopening of a claim which was the subject of a final denial. It is not clear whether the BVA intended to reopen appellant’s claim despite the absence of new and material evidence, but any error which may have occurred was necessarily harmless in view of the BVA’s ultimate denial. The decision of the BVA is affirmed. Therefore, the denial of service connection for a back disability is affirmed. I. Appellant served in the Army from March 11, 1943, until November 6, 1945. Appellant’s induction examination is negative for any spinal abnormalities. R. at 7484 8. While in service, appellant sought treatment for a “backache”. A November 1943 orthopedic consultation reflects that, prior to service, appellant had been involved in two automobile accidents; the examiner’s impression was “chr[onic] trauma during adolescence”. R. at 9. The 1945 discharge examination indicates evidence of a lacerated back and no defects of the musculoskel-etal system. R. at 26. Prior to the BVA decision giving rise to this appeal, appellant’s claim for service connection had been denied in three prior BVA decisions. In a 1969 decision, the Board found that appellant’s back disability existed prior to service and that there had been no aggravation of appellant’s condition in service. R. at 78 (William F. Wilson, BVA 69-08695 (Aug. 26 1969)). Subsequent BVA decisions in 1972 and 1979 affirmed the denial of appellant’s claim for service connection based upon the conclusions that the evidence submitted by the veteran did not create a new factual basis sufficient to establish service connection. R. at 92 (William F. Wilson, BVA 71-19234 (Jan. 4, 1972)); R. at 172 (William F. Wilson, BVA 78-20699 (Mar. 15, 1979)). In 1989, appellant again sought to reopen his claim by submitting medical progress notes from a Veterans’ Administration (VA) (now the Department of Veterans Affairs) orthopedic clinic dated April 14, 1988, October 3, 1988, and March 20, 1989 (R. at 195, 182, 184), that reflect treatment for back pain. A May 24, 1989, VA Regional Office (RO) rating decision determined the reports were cumulative and “insufficient to rebut the pre-service existence of the veteran’s back condition and also were insufficient to show that the veteran’s back disability was aggravated during active duty.” R. at 203. In its decision of June 7, 1990, the BVA affirmed the 1989 RO rating decision concluding that: new evidence of record consists of records of treatment for the veteran’s back disorder by [VA] many years subsequent to service as well as contentions advanced_ [These records] do not establish the onset in service of a back disorder ... or that a preexisting back disorder worsened during service. William F Wilson, BVA 90-18231, at 4-5 (June 7, 1990). A timely appeal to this Court followed. II. “Except as provided in section 5108 [formerly section 3008] of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be reconsidered.” 38 U.S.C. § 7104(b) (formerly § 4004(b)). Section 5108 provides: “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary [of Veterans Affairs (Secretary)] shall reopen the claim and review the former disposition of the claim.” Thus, only if the evidence submitted by appellant is found to be both “new” and “material”, may the claim be reopened and the entire record reviewed. See Manio v. Derwinski, 1 Vet.App. 140 (1991); Jones v. Derwinski, 1 Vet.App. 210 (1991). In Colvin v. Derwinski, 1 Vet.App. 171 (1991), the Court said that “[n]ew evidence is not that which is merely cumulative of other evidence on the record. Material evidence is relevant and probative of the issue at hand.” Id. at 174 (citations omitted). The Court held that “to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Id. Here, the evidence reflecting treatment for back pain in 1988 and 1989, while new, was not as a matter of law material to the issue of whether appellant’s current disability was service-connected. Because the evidence was not “new” and “material”, there was no basis upon which appellant’s claim could be reopened under 38 U.S.C. § 5108. It is not clear from the BVA decision, which predates our jurisprudence with respect to reopened claims, whether the Board found insufficient basis to reopen the appellant’s claim or rejected it on the merits. While the appropriate course would have been to conclude that [485] there was an insufficient predicate for reopening, any error by the Board was harmless in view of its ultimate denial of the claim. See Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991). III. Upon consideration the briefs of appellant and the Secretary, and the record on appeal, it is the holding of the Court that appellant’s newly submitted evidence was not material to the issue of service connection for a back disability. Appellant has not demonstrated that the Board of Veterans’ Appeals committed either factual or legal error which would warrant reversal. Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). Accordingly, the BVA decision of June 7, 1990, is AFFIRMED.