BVA9506397 DOCKET NO. 93-10 809 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether the application to reopen a claim of entitlement to service connection for a psychiatric disorder is well grounded. 2. Whether the application to reopen a claim of entitlement to service connection for a gastrointestinal disorder is well grounded. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from July 1951 to May 1953. The Board of Veterans' Appeals (Board) denied entitlement to service connection for a psychiatric disorder in July 1967, September 1970, September 1973, and December 1988. The Board found, among other things, that a chronic psychiatric disorder was not shown in active service but initially demonstrated thereafter, and that evidence submitted in attempts to reopen the previously denied claims did not alter the factual basis upon which previous denials were predicated. The Board denied entitlement to service connection for a chronic gastrointestinal disorder in September 1978. The Board found, among other things, that epigastric complaints expressed in service were due to infectious hepatitis for which service connection was granted, a chronic gastrointestinal disorder was not present during service or at the time of discharge, and ulcer disease was not present within one year from the date of discharge from service. The current appeal arose from a January 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO determined that new and material evidence had not been submitted to reopen previously denied claims of entitlement to service connection for psychiatric and gastrointestinal disorders. The case has been forwarded to the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence to substantiate his claims for grants of entitlement to service connection for psychiatric and gastrointestinal disorders. 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 the veteran has not presented evidence of well grounded applications to reopen previously denied claims of entitlement to service connection for psychiatric and gastrointestinal disorders. FINDINGS OF FACT 1. The application to reopen a claim of entitlement to service connection for a psychiatric disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The application to reopen a claim of entitlement to service connection for a gastrointestinal disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The application to reopen a claim of entitlement to service connection for a psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The application to reopen a claim of entitlement to service connection for a gastrointestinal disorder is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered in this case is whether the veteran has submitted well grounded applications to reopen claims of entitlement to service connection for psychiatric and gastrointestinal disorders. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claims are well grounded; that is, that the claims are plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his applications to reopen previously denied claims of entitlement to service connection for psychiatric and gastrointestinal disorders are not well grounded, and that his appeal should be dismissed. In this regard, the Board notes that service connection may be granted for any disease or injury if it is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107. Psychosis and peptic ulcer disease, if not shown during service, may be presumed to have been incurred in service if these disorders are shown to be disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When a claim has been disallowed by the Board, that claim may not thereafter be reopened absent the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. "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, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992)) 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, 98 (1993). Where the determinative issues involve causation or a medical diagnosis, competent medical evidence to the effect that the claims are possible or plausible is required. Murphy. A claimant does not meet this burden by merely presenting his lay opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders the veteran's claims not well grounded. Turning to the veteran's application to reopen a claim of entitlement to service connection for a psychiatric disorder, the Board observes that the evidence of record and considered by the Board prior to its last denial of entitlement to service connection for a psychiatric disorder in December 1988 consisted of service medical records, hearing testimony, VA and non-VA examination and treatment reports and statements and correspondence, and a sworn statement from family members. The service medical records were negative for any chronic psychiatric abnormalities. A VA psychiatric examination conducted in September 1953 concluded in a diagnosis of anxiety reaction, chronic. A May 1966 RO hearing transcript shows the veteran testified that he had nervous symptomatology and received treatment in service while hospitalized for hepatitis, but he did not report on sick call nervous symptoms, nor did he receive any treatment after service. Schizophrenic reaction was diagnosed when the veteran was privately hospitalized from May to July 1966. At a January 1967 RO hearing there was presented testimony by service comrades who provided their knowledge and observations of the veteran's behavior in service which they considered to be abnormal. The veteran was reported to have been under the treatment of a private physician for anxiety state for six months in a March 1967 statement. A private attorney had also submitted a statement in March 1967. A May 1968 statement from a private physician noted that the veteran had been under his treatment for schizophrenic reaction, undifferentiated type. A July 1968 statement from another private physician noted that the veteran had been examined for psychiatric symptomatology diagnosed as schizophrenic reaction, chronic, undifferentiated type. A March 1969 VA psychiatric examination concluded in a diagnosis of schizophrenic reaction, undifferentiated type. Correspondence dated in 1970 and 1971 from a private physician shows the veteran had been treated for a psychophysiologic gastrointestinal reaction and chronic anxiety. Also previously considered was testimony taken at RO hearings conducted in 1971 and 1972, and an employment statement filed by the appellant. A June 1984 VA psychiatric examination concluded in diagnoses of post-traumatic stress disorder, chronic; and major depression, single episode with melancholia. An October 1984 VA psychiatric examination concluded in a diagnosis of major depressive disorder with depressive features, chronic. Correspondence from a private psychiatrist in October 1987 noted that the veteran had been diagnosed with chronic anxiety disorder in 1953, and that since his disability was considered chronic in nature, it had to have been in existence for two years, therefore during service. The evidence obtained since the December 1988 Board decision consists of VA psychotherapy reports dated during the early 1990's pertaining to treatment of the claimant's symptoms. These treatment reports provide no evidence to link the veteran's post service reported psychiatric disorder to service. A well grounded application to reopen a claim must be supported by evidence, not merely allegations. Tirpak. The veteran has not submitted competent medical evidence demonstrating incurrence or aggravation of a chronic psychiatric disorder coincident with active service. Grottveit. The appellant has submitted no cognizable evidence showing that his application to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder is plausible or capable of substantiation, especially in light of evidence previously of record. Consequently, his claim is not well grounded and must be dismissed. 38 U.S.C.A. § 5107(a). Turning to the veteran's application to reopen a claim of entitlement to service connection for a gastrointestinal disorder, the Board observes that the evidence of record prior to the Board's September 1978 decision consisted of the service medical records which did not show evidence of a chronic gastrointestinal disorder, and any gastrointestinal complaints therein were related to hepatitis for which service connection was granted. The September 1953 VA gastrointestinal examination concluded in a notation that no gastrointestinal disease was found. A May 1954 examination report pursuant to a claim for hospital treatment shows the veteran complained of abdominal pain and was diagnosed with spastic colitis. A December 1956 VA examination report concluded in a notation that there were no abnormal findings of the gastrointestinal systems. An April 1974 private hospitalization report and upper gastrointestinal x-ray disclosed reflux esophagitis, a sliding hiatus hernia, and chronic duodenal ulcer. The veteran gave a history of gastrointestinal symptomatology when hospitalized by VA in November 1975. A November 1976 VA hospital report shows a duodenal ulcer was to be ruled out. A November 1976 upper gastrointestinal x-ray taken at a private hospital disclosed no abnormalities of the esophagus, stomach, or duodenum. A May 1977 VA examination report included an upper gastrointestinal x-ray which revealed a hiatal hernia of the sliding type, with an associated gastroesophageal reflux. The duodenal bulb was deformed and an ulcer was not identified. The evidence obtained subsequent to the September 1978 Board decision consists of a copy of a 1979 private hospital report noting the veteran had chronic peptic ulcer disease, hiatus hernia with reflux and secondary peptic esophagitis, secondary flatulence, dyspepsia, and secondary chronic enterocolitis. An October 1984 VA gastrointestinal examination concluded in relevant diagnoses of hiatal hernia and duodenal ulcer disease. VA treatment reports dated in the early 1990's include references to gastrointestinal pathology. As the Board noted earlier, a well grounded application to reopen a previously denied claim must be supported by evidence, not merely allegations. Tirpak. The appellant has not submitted competent medical evidence demonstrating a link between post service reported chronic gastrointestinal pathology and service. Grottveit. The veteran has submitted no cognizable evidence showing that his application to reopen the previously denied claim of service connection for a gastrointestinal disorder is plausible or capable of substantiation, particularly with respect to evidence previously of record. Accordingly, his application to reopen is not well grounded and must be dismissed. 38 U.S.C.A. § 5107(a). Finally, the Board recognizes that the veteran's applications to reopen are being disposed of in a manner different from that utilized by the RO. The Board must therefore consider whether the appellant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's applications to reopen and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. The Board observes that the RO disposed of the appellant's applications to reopen on the merits. In assuming that the applications to reopen were well grounded, the RO accorded him greater consideration than his applications to reopen in fact warranted under the circumstances. To remand this case to the RO for consideration of the issue of whether the appellant's applications to reopen are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). ORDER The application to reopen a claim of entitlement to service connection for a psychiatric disorder is dismissed. The application to reopen a claim of entitlement to service connection for a gastrointestinal disorder is dismissed. ALBERT D. TUTERA 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.