Bartow v. Derwinski

2 Vet. App. 657, 1992 U.S. Vet. App. LEXIS 213, 1992 WL 181268
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 31, 1992
DocketNo. 91-598
StatusPublished

This text of 2 Vet. App. 657 (Bartow v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartow v. Derwinski, 2 Vet. App. 657, 1992 U.S. Vet. App. LEXIS 213, 1992 WL 181268 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, veteran William A. Bar-tow, appeals from a December 11, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying disability compensation based on secondary service connection for lung disease, heart disease, a back disorder, and Crohn’s disease, and denying entitlement to a rating for a service-connected upper respiratory disability higher than 10%. William A. Bartow, BVA 90-41785, at 9 (Dec. 11, 1990). The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The BVA decision will be affirmed in part and vacated and remanded in part.

The veteran served on active duty in the United States Army from October 1942 to February 1946. R. at 1. While in the service, he developed an upper respiratory disability. Service connection is currently in effect for bilateral maxillary sinusitis with allergic rhinitis and chronic pharyngitis, evaluated as 10% disabling. R. at 140-41.

A.

Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). In considering claims to reopen previously and finally disallowed claims, the BVA must conduct a two-step analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (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, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). Evidence is “new” if it is not “merely cumulative” of evidence already in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is “material” if “relevant and probative” and if there is “a reasonable possibility that the evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Godwin v. Derwinski, 1 Vet.App. 419, 424 (1991); Colvin, supra.

With respect to the veteran’s attempts to reopen his claims for service connection for lung disease, heart disease, a back disorder, and Crohn’s disease, the Board did not utilize the two-part test outlined in Manio. Instead it applied “[a] preVJRÁ [Veterans’ Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988) ] regulation which required that if new and material evidence is submitted then the claim may be granted only if that new evidence provides a ‘new factual basis for allowing the claim’.” Jones, 1 Vet.App. at 214; 38 C.F.R. § 19.194 (1990). Throughout its decision, the Board repeatedly utilized this “new factual basis” standard for its findings of fact and legal conclusions. This is not the standard by which to evaluate whether to reopen claims. See 38 U.S.C. §§ 7104(a), (b), 5108 (formerly [660]*660§§ 4004, 3008); Jones, supra; Colvin, 1 Vet.App. at 174; Manio, 1 Vet.App. at 145.

Although the Board erred by failing to apply the proper test for reopening claims, its error was harmless since these claims should not have been reopened. See 38 U.S.C. § 7261(b) (formerly § 4061); Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1991); Godwin, 1 Vet.App. at 425; Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991). The determination as to whether evidence is “new and material” is a question of law, which, under 38 U.S.C. § 7261(a)(1), this Court reviews de novo. See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. Accordingly, for the reasons set forth below the Court holds that the veteran has not submitted new and material evidence to reopen his previously denied claims as to the four conditions.

Secondary service connection for lung disease was denied in prior final BVA decisions in May 1969, April 1971, May 1981, and May 1988. R. at 55, 62, 92, 106. The new evidence submitted with respect to this claim, a Veterans’ Administration (now Department of Veterans Affairs) (VA) outpatient (OP) record dated December 1988, showed that the veteran’s lungs were clear. R. at 119-20.. This evidence is not probative, and, thus, when it is viewed in the context of the evidence previously considered by the Board there does not arise a reasonable possibility that the outcome of the prior final BVA decision would be different. Therefore, the evidence is not material and does not justify reopening the claim.

Secondary service connection for heart disease also was denied in prior final BVA decisions in May 1969, February 1977, May 1981, and May 1988. R. at 55, 88, 92, 106. The only new evidence submitted in support of this claim is the aforementioned VAOP record. R. at 119-20. This medical record shows no positive evidence of heart disease; thus, this evidence is not probative; nor does it raise a reasonable possibility that the outcome would be different if the claim were reviewed in light of this evidence. Consequently, it, too, does not warrant a reopening of the claim.

In prior final BVA decisions dated May 1969, April 1971, March 1976, May 1981, and May 1988, the Board denied service connection for the veteran’s back disability. R. at 55, 62, 83, 92, 106. The Board concluded that his back disability had not been incurred in service and that the veteran’s scoliosis was a developmental defect not aggravated by service. R. at 60, 67-68, 86-87, 99-100, 114-15. In his attempt to reopen this claim, the veteran presented a physician’s report which diagnosed several back conditions. R. at 124. Although the report is not merely cumulative of evidence previously considered, it, too, fails to establish a connection between the veteran’s current back disability and his period of service. This evidence, therefore, also is not probative and, when viewed in conjunction with evidence considered previously, could not reasonably change the outcome of the prior final BVA decisions. It, thus, is not material.

Service connection for Crohn’s disease was considered and denied by the Board in its May 1988 final decision. R. at 106. Evidence submitted by the veteran and considered and discussed at that time by the Board, including a letter, dated February 1985, from Dr. Joe A. Dean, a private physician (R. at 103), indicated that the disease had developed many years after the veteran had been separated from service. A letter, dated December 1985, from another private physician, Dr. R.B. Shaw, submitted in this effort to reopen the claim, simply confirms that the veteran’s Crohn’s disease was diagnosed in 1974. R. at 138.

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Murphy v. Derwinski
1 Vet. App. 78 (Veterans Claims, 1990)
Green v. Derwinski
1 Vet. App. 121 (Veterans Claims, 1991)
Manio v. Derwinski
1 Vet. App. 140 (Veterans Claims, 1991)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
Jones v. Derwinski
1 Vet. App. 210 (Veterans Claims, 1991)
Thompson v. Derwinski
1 Vet. App. 251 (Veterans Claims, 1991)
EF v. Derwinski
1 Vet. App. 324 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Moore v. Derwinski
1 Vet. App. 401 (Veterans Claims, 1991)
Godwin v. Derwinski
1 Vet. App. 419 (Veterans Claims, 1991)
Parker v. Derwinski
1 Vet. App. 522 (Veterans Claims, 1991)
Wilson v. Derwinski
2 Vet. App. 16 (Veterans Claims, 1991)
Kehoskie v. Derwinski
2 Vet. App. 31 (Veterans Claims, 1991)
Masors v. Derwinski
2 Vet. App. 181 (Veterans Claims, 1992)

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Bluebook (online)
2 Vet. App. 657, 1992 U.S. Vet. App. LEXIS 213, 1992 WL 181268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartow-v-derwinski-cavc-1992.