Citation Nr: 9837779	
Decision Date: 12/29/98    Archive Date: 01/05/99

DOCKET NO.  97-19 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted 
sufficient to reopen a claim for entitlement to service 
connection for a nervous condition.

2.  Entitlement to service connection for Klinefelter’s 
Syndrome (47, XXY).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The veteran had active military service for a period of 23 
days, from November 11, 1967, to December 8, 1967.

This matter came before the Board of Veterans’ Appeals 
(hereinafter the Board) on appeal from a February 1997 rating 
decision of the Department of Veterans Affairs (VA) Regional 
Office (RO), in St. Petersburg, Florida.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran has merely expressed disagreement with the RO’s 
decision; he has not proffered any reasons as to why he 
disagrees with said decision.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), 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 the veteran has not presented 
any new and material evidence sufficient to reopen his claim 
for entitlement to service connection for a nervous 
condition.  It is also the decision of the Board that the 
veteran’s claim for entitlement to service connection for 
Klinefelter’s Syndrome (47, XXY) must be dismissed for lack 
of entitlement under the law.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran’s appeal has been obtained by the 
agency of original jurisdiction.

2.  The RO denied entitlement to service connection for a 
nervous condition in May 1976; the claimant did not perfect 
an appeal.  

3.  Additional evidence proffered by the veteran since May 
1976 include medical records and written statements.  This 
evidence does not demonstrate that the veteran had a nervous 
condition while in service.  Also, the evidence does not show 
any type of relationship between the veteran’s limited 
military experiences and any psychiatric condition from which 
he later suffered.

4.  The evidence submitted is not relevant and probative, and 
is not sufficient to reopen the claim for entitlement for 
service connection for a nervous condition.

5.  The veteran has been diagnosed as having Klinefelter’s 
Syndrome (47, XXY), a genetic disorder.


CONCLUSIONS OF LAW

1.  Evidence received since the originating agency denied 
entitlement to service connection for a nervous condition in 
1976 is not new and material, and the veteran’s claim for 
that benefit has not been reopened.  38 U.S.C.A. §§ 1110, 
1131, 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. 
§§ 3.104(a), 3.156(a), 20.1100, 20.1105 (1998).

2.  The claim for entitlement to service connection for 
Klinefelter’s Syndrome (47, XXY) is dismissed for lack of 
entitlement under the law.  38 U.S.C.A. §§ 1101, 1110, 1112, 
1113, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 
3.307, 3.308, 3.309 (1998); Sabonis v. Brown, 6 Vet. App. 426 
(1994).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence - Nervous Condition

The veteran served on active duty for twenty-three days.  
During his limited service, he was found to be suffering from 
acute anxiety, hyperventilation, chronic bed wetting, 
insomnia, crying spells, anorexia, severe homesickness, and 
poor performance.  He was discharged from the US Air Force 
because he “failed to meet the minimum acceptable 
standards”.  Letter from MG G. B. Greene, Jr., December 8, 
1967.  

Nine years later, the veteran applied for VA benefits.  He 
claimed he suffered from a nervous condition while in 
service.  Upon reviewing the records, the RO concluded that 
evidence did not support his claim and it was denied.  VA 
Form 21-6796, Rating Decision, May 5, 1976.  The veteran then 
began an appeal of that decision but later withdrew his 
appeal.  Thus, the May 1976 decision became final.

In 1997, the veteran sought to reopen his claim.  To support 
his contentions, he submitted copies of private medical 
records and provided limited statements to the RO.  Although 
the RO noted that the records that were submitted were new, 
it also concluded that said records were duplicative and not 
material because they did not establish that the veteran had 
a psychiatric condition while in service.  Thus, the 
veteran’s claim was denied and he appealed to the Board for 
review.  VA Form 21-6796, Rating Decision, February 18, 1997.  

New and material claims must be well-grounded.  “‘New and 
material evidence’ is, by its nature, well-grounded, i.e., 
evidence that, if believed, would provide a ‘reasonable 
possibility’ that the outcome would be changed.”  Gobber v. 
Derwinski, 2 Vet. App. 470, 472 (1992).  Since medical 
records have come before the VA that have not been previously 
considered, the possibility is raised of a change in the 
outcome of the final decision.  38 U.S.C.A. § 5107 (West 1991 
& Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78 (1990); 
Moray v. Brown, 5 Vet. App. 211 (1993).  Hence, the appellant 
has proffered a well-grounded claim.  The facts relevant to 
this appeal have been properly developed and the obligation 
of the VA to assist the veteran in the development of the 
claim has been satisfied.  Id

Pursuant to 38 U.S.C.A. § 5108 (West 1991 & Supp. 1998), the 
Secretary must reopen a previously and finally disallowed 
claim when “new and material evidence” is presented or 
secured with respect to that claim.  See 38 U.S.C.A. 
§ 7104(b) (West 1991 & Supp. 1998); Stauton v. Brown, 5 Vet. 
App. 563, 566 (1993).  New and material evidence means 
evidence not previously submitted to agency decision makers 
that bears directly and substantially upon the specific 
matter under consideration, which is neither cumulative or 
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) (1998).  

That is, on claims to reopen previously and finally 
disallowed claims, the VA must conduct a two-part 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.”   “New evidence” is evidence that is not 
“merely cumulative” of other evidence on the record.  
Evidence is “material” where it is “relevant to and 
probative of the issue at hand” and where it is 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.”   38 C.F.R. § 3.156(a) (1998); Sklar v. 
Brown, 5 Vet. App. 140, 145 (1993); Cox v. Brown, 5 Vet. App. 
95, 98 (1993).

If the Board determines that the evidence is “new and 
material”, the claim must be reopened and the merits 
evaluated in light of all of the evidence, both new and old.  
Manio, 1 Vet. App. at 145.  If new and material evidence has 
not been submitted, the Board need not address the merits of 
the claim.  Sanchez v. Derwinski, 2 Vet. App. 330 (1992).  
For the limited purpose of determining whether to reopen a 
claim, the Board must accept the new evidence as credible and 
entitled to full weight.  Justus v. Principi, 3 Vet. App. 510 
(1992).  This presumption no longer attaches in the 
adjudication that follows reopening.  Id.  Duplicates of old 
records submitted in support of an application to reopen a 
claim are not new and material.  Morton v. Principi, 3 Vet. 
App. 508 (1992).

The claim folder contains scant material that would indicate 
that the veteran has presented sufficient evidence to reopen 
his claim.  The file contains his service medical records and 
private medical records; but these records were previously 
considered by the VA.  These same files do not establish that 
the veteran had a nervous condition while in service.  

Moreover, while the veteran has submitted statements claiming 
that he suffered from a mental condition in service, medical 
evidence corroborating his claim has not been submitted.  
Medical evidence establishing that the veteran currently 
suffers from a psychiatric disability has not proffered 
despite claims to the contrary by the veteran.  Thus, the 
veteran has relied upon his own opinion as to medical 
matters.  Because the determinative issue in this matter 
involves medical etiology and the diagnosis of a condition, 
the veteran’s lay testimony is not in and of itself 
sufficient to establish the relationship between the 
veteran’s military service and any condition from which he 
may, or may not, now suffer.  See Grottveit v. Brown, 5 Vet. 
App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 
(1992).  Accordingly, such statements will not be sufficient 
to reopen the claim.

The Board therefore finds that while the information 
presented to VA may be new, it is not material.  The 
presented contentions have been made previously and were 
considered by the VA in connection with the previous final RO 
decision.  The data provided does not raise a reasonable 
possibility that the outcome of the previously denied claims 
might be changed.  Therefore, the veteran’s claim for 
entitlement to service connection for a nervous condition has 
not been reopened.  

II.  Service Connection - Klinefelter’s Syndrome (47, XXY)

The veteran has been diagnosed as having Klinefelter’s 
Syndrome (47, XXY) which is a genetic disorder caused by the 
presence of an extra X chromosome.  Klinefelter Syndrome and 
Associates (visited Dec. 21, 1998) http://www.genetic.org/ks.  
[The Board has considered whether it should provide the 
veteran with notice and an opportunity to respond to the 
above reference relating to Klinefelter’s Syndrome (47, XXY) 
before entering a final decision.  The reference is merely to 
provide a definition of the terms in question.  The Board is 
not relying on this definition as a basis for deciding this 
appeal.  Consequently, the Board believes there is no need to 
provide the veteran with notice and an opportunity to respond 
to the reference relating to Klinefelter’s Syndrome (47, XXY) 
prior to entering a final decision.

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998).  However, 
congenital or developmental defects, personality disorders 
and mental deficiency, as such, are not diseases or injuries 
within the meaning of applicable legislation.  38 C.F.R. § 
3.303(c) (1998).   Klinefelter’s Syndrome is a congenital 
defect.  As such, regardless of the character or quality of 
any evidence that the veteran could submit, this condition is 
not recognized as a disability under the terms of the VA 
Schedule for Rating Disabilities.  In other words, because 
the veteran’s condition is not a disability that has been 
recognized as a chronic disorder for VA compensation 
purposes, there is no legal basis upon which to warrant a 
grant of entitlement to service connection for Klinefelter’s 
Syndrome (47, XXY).  38 U.S.C.A. §§ 1110, 1131, 5107 (West 
1991 & Supp. 1998); 38 C.F.R. §§ 3.303(c), 4.9 (1998). 

In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United 
States Court of Veterans Appeals (the Court) reiterated its 
position previously reported in King v. Brown, 5 Vet. App. 
19, 21 (1993) and Tirpak v. Derwinski, 2 Vet. App. 609, 610-
11 (1992).  That is, per 38 U.S.C.A. § 5107(a) (West 1991), 
the appellant has the burden of submitting evidence 
sufficient to justify a belief by a fair and impartial 
individual that the claim is well-grounded.  The Sabonis 
decision further dictated that when there is a lack of 
entitlement under the law or an absence of legal merit, the 
claim should be dismissed.  Moreover, the action of Board 
should be terminated immediately concerning that issue.  See 
also Giancaterino v. Brown, 7 Vet. App. 555, 561 (1995) 
(construing Sabonis, supra), and Florentino v. Brown, 7 Vet. 
App. 369 (1995).  Since there is no possible legal 
entitlement, the issue on appeal is dismissed. 



ORDER

1.  New and material evidence has not been submitted in 
support of this claim for service connection for a nervous 
condition, and the claim has not been reopened.  The benefit 
sought on appeal is denied.

2.  The claim for entitlement to service connection for 
Klinefelter’s Syndrome (47, XXY) is dismissed.




		
	JACK W. BLASINGAME
	Member, Board of Veterans’ Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1998), 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, 102 Stat. 4105, 4122 (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.



  From Evans v. Brown, 9 Vet. App. 273 (1996), “. . . the first step of the Manio two-step process involves 
three questions.  Question 1:  Is the newly presented evidence “new” (that is, not of record at the time of the 
last final disallowance of the claim and not merely cumulative of other evidence that was then of record, see 
Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn, Cox, and Colvin, all supra)?  Question 2:  Is it 
“probative” of “the issue[s] at hand” (Cox and Colvin, both supra)(that is, each issue which was a specified 
basis for the last final disallowance (see Struck, supra))?  Question 3:  If it is new and probative, then, in 
light of all of the evidence of record, is there a reasonable possibility that the outcome of the claim on the 
merits would be changed (see ibid.)?  As Blackburn indicated, affirmative answers to both questions 2 and 3 
- involving the probative nature of the “new” evidence and the reasonable possibility of outcome change, 
respectively - are required in order for “new” evidence to be “material” . . . . Blackburn, 8 Vet. App. at 102.”  
  “. . . evidence is “probative” when it “tend[s] to prove, or actually prov[es] an issue”.  BLACK’S LAW 
DICTIONARY 1203 (6th ed. 1990). . . Hence, in order to warrant reopening a previously and finally disallowed 
claim, the newly presented or secured evidence must be not cumulative of evidence of record at the time of 
the last prior final disallowance and must tend to prove the merits of the claim as to each essential element 
that was a specified basis for that last final disallowance of the claim.”  Evans v. Brown, 9 Vet. App. 273 
(1996).
  See also O.G.C. Precedent 82-90, 56 Fed. Reg. 45711 (1990) (previously issued as General Counsel 
Opinion Op. 1-85), which states that service connection may be granted for diseases, but not defects, of 
congenital, familial or developmental origin.
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