Citation Nr: 0001689 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-06 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for primary sclerosing cholangitis (PSC), claimed as secondary to radiation exposure and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from February 1960 to February 1962. Initially, the Board of Veterans' Appeals (Board) notes that during the pendency of this appeal, the Board sought and obtained an opinion concerning a question involved in the veteran's appeal, and furnished a copy of the opinion letter to the veteran's representative in October 1999. In October 1999, the Board further advised the veteran's representative that while the Board was providing 60 days in which he and the appellant could submit additional evidence if they chose to do so, if they wished to waive the 60 day period, a statement to this effect at the bottom of the last page of the letter was to be signed and returned to the Board. As this statement was signed and received by the Board in October 1999, the Board finds that the issue on appeal is now ready for appellate consideration. FINDINGS OF FACT 1. A claim for service connection for PSC, claimed as secondary to radiation exposure, was denied by an August 1994 rating decision which was not appealed. 2. The evidence submitted since the August 1994 rating decision pertinent to the claim for service connection for PSC, claimed as secondary to radiation exposure, bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and is, by itself or in combination with other evidence, so significant that it must be considered in order to finally decide the merits of the claim. 3. PSC was not shown in active service; PSC, first shown years after service, is not related to service. CONCLUSIONS OF LAW 1. The August 1994 rating decision which denied service connection for PSC, claimed as secondary to radiation exposure, is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. § 20.1103 (1994). 2. New and material evidence has been submitted since the August 1994 rating decision, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.156 (1999). 3. PSC, claimed as secondary to radiation exposure, was not incurred in or aggravated by active service, nor may PSC be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303(d), 3.307, 3.309, 3.311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background Following notification of an initial review and adverse determination by the regional office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In Evans v. Brown, 9 Vet. App. 273, 285 (1996), the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") held that "in order to reopen a previously and finally disallowed claim . . . there must be 'new and material evidence presented or secured' . . . since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, a disease which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (1999). Where a veteran served 90 days or more during a period of war and cirrhosis of the liver becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The regulations provide service connection for specific diseases for radiation exposed veterans as a result of participation in a radiation-risk activity. The diseases referred to in the regulation are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of salivary gland, and cancer of the urinary tract. 38 C.F.R. § 3.309(d) (1999). In all other claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period under 38 C.F.R. § 3.307 or § 3.309, and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and the nature of the radiation dose or doses. 38 C.F.R. § 3.311(a) (1999). "Radiogenic disease" includes the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer and parathyroid adenoma. 38 C.F.R. § 3.311(b)(2) (1999). A veteran is not foreclosed from establishing service connection on a direct basis, based solely on exposure to ionizing radiation, if the disability is not specifically listed under 38 C.F.R. §§ 3,309(d) or 3.311. See Combee v. Principi, 34 F. 3d 1039 (1994). Service medical records dated in March 1960 indicate that the veteran was to obtain an appointment with the dermatology clinic as a result of severe acne vulgaris of the back. In June 1960, the veteran received additional treatment for acne vulgaris of the back, and in September 1960, dermatological consultation revealed severe acne of the back and that the veteran was to have X-ray therapy. A service hospital summary from November 1960 reflects that examination of the back at this time revealed chronic severe acne lesions, and it was noted that the veteran had had this condition for some time, and that he had been receiving periodic X-ray therapy to this area at the hospital. The diagnosis included acne vulgaris, posterior chest, severe. In February 1961, it was noted that the veteran continued to have symptoms of acne on his back for which treatment was to be continued. Pustular acne of the back was again noted in a hospital summary dated in April 1961. Service medical records further reflect that in May 1961, the veteran complained of persistent acne of the back, and it was noted that he had had Kynex, X-ray, and the "usual" therapy. It was indicated that the veteran would now be placed on antogenous vaccine. Thereafter, service records do not mention any additional X-ray therapy to the veteran's back and there is no indication as to the dose of radiation the veteran was exposed to in the earlier therapy sessions. There was no diagnosis of acne vulgaris at the time of the veteran's separation examination in January 1962. However, in his original application for compensation filed in February 1962, the veteran claimed service connection for severe acne of the back. Department of Veterans Affairs (VA) medical examination in February 1962 revealed that the veteran complained that the acne on his back would not go away. A special dermatological examination at this time indicated that the veteran reported that his acne condition worsened during the service, especially in the summer of 1960. The veteran further reported that during the service, he received a great deal of treatment for his acne, including considerable X-ray treatment in addition to many local medications, internal antibiotics, and even an autogenous vaccine. The veteran noted that he still had this condition and that it had spread from the back to the shoulders. Examination revealed considerable scarring and evidence of severe acne of the past on the back. There still was a moderate acne with comedones, papules, and pustules found scattered over the entire back, and this was found to a lesser extent on the chest and to a mild extent on the shoulders. The face was noted to have only minimal involvement with acne. The diagnosis was acne vulgaris, back, severe, chronic, shoulders, chest, face, milder. A June 1962 rating decision denied service connection for acne on the basis that the veteran had acne prior to service, and that its progression in service had not been shown to be any more than would have occurred in the normal course of the disease. A VA hospital summary for the period of June to August 1967 reflects that the veteran reported a history of having a right kidney stone removed in March 1967, and that one week prior to this admission, he again experienced hematuria and dull right costovertebral angle tenderness and ache. Examination at the time of admission was found to be entirely normal except for a scar on the right flank. An intravenous pyelogram (IVP) was interpreted to reveal a stone in the left lower pole, right lower pole, of the right ureter with delay of function and then pointing of the stone on the right. Calcium and phosphorus studies revealed elevated calcium and lowered phosphorus levels repeatedly. In June 1967, the veteran underwent a right ureterolithotomy and pelviotomy with T Tube intubation of the upper ureter, and in July 1967, the tube was removed. Thereafter, due to continued elevated calcium and lowered phosphorus, the veteran was explored for parathyroid adenoma on August 1, 1967, that was located below the thyroid on the right side, measuring 5 by 10 millimeters in size. This was removed and there were no complications postoperatively until August 6, 1967, at which time the veteran developed a high temperature. A stone was determined to have moved down into his ureter, and with treatment the stone was passed spontaneously. It was believed that the veteran had developed a post-calculous pyelonephritis and antibiotics were continued. Thereafter, the veteran's condition gradually improved. The diagnoses included hyperthyroidism, right ureteral and right renal stones, left renal stones, parathyroid adenoma, and atrophy of another parathyroid gland. A VA hospital summary from May 1969 reflects that following the excision of a parathyroid tumor from near the lower pole of the thyroid gland on the right extending to the mediastinum, the veteran passed several calculi in August 1967. At that time, the veteran reported that an IVP revealed new calculi on the left, and that in August 1968, another IVP revealed negative findings. Since that time, the veteran reported recurrent intermittent right flank pain with recurrent hematuria. An IVP at this time revealed a left upper pole renal calculus but otherwise negative findings. The plan was to treat the veteran's urinary tract infection with antibiotics even with a renal calculus. It was noted that his renal calculus would be followed at 6 month to yearly intervals. VA hospital records from October 1979 reveal that the veteran underwent the excision of two sebaceous cysts on the upper back which were reportedly recurrent and examples of severe acne of the upper back status post multiple radiation treatments to the area. The operative record indicates that the veteran's skin was noted to be very fibrotic and avascular, possibly secondary to radiation. A VA hospital summary for the period if October to November 1988 reflects that the veteran was admitted at this time with a two week history of increasing epigastric pain, progressive jaundice, darkening of urine, 22 pound weight loss over the previous six months, and marginal fevers with chills. Examination of the abdomen revealed that it was diffusely tender with right upper quadrant guarding but no peritoneal signs. Ultrasound on the day of admission revealed questionable stones to the right hepatic duct with proximal dilatation, but no common duct dilatation. On October 18, 1988, the veteran underwent a cholecystectomy, intraoperative cholangiogram, common duct resection, Roux-Y hepaticojejunostomy, and liver biopsy. Additionally, a U- tube was placed percutaneously through the liver exiting through the left hepatic duct entering the jejunal loop and exiting several centimeters distal to the anastomosis and exiting percutaneously. A JP tube was placed at the juncture of the superior surface of the liver and the U-tube. The veteran was discharged with the U-tube in place. The diagnoses included sclerosing cholangitis, borderline hypertension, status post resection of the parathyroid adenoma, 16 years earlier, and nephrolithiasis, secondary to hypercalcemia. VA medical records for the period of October 1988 to January 1991 reflect that in March 1989, it was noted that the veteran was recovering from biliary surgery in approximately November 1989, and that he had tubes in his liver that were due to be removed in May 1989. At the end of March 1989, it was indicated that the veteran had a history of sclerosing cholangitis status post U-tube placement with hepaticojejunostomy, cholecystectomy and common bile duct (CBD) exploration in October 1988. At this time, the veteran's main complaint was a feeling of lethargy since March 1989. The assessment was lethargy likely secondary to some depression, although possibly a manifestation of resolving viral infection. Throughout the remainder of 1989, the veteran continued to experience symptoms of fatigue and the veteran underwent revision of the U-tube in August 1989. In December 1989, the assessment was likely intermittent obstructive cholangitis secondary to right hepatic stricture. VA medical records in 1990 continue to reflect that the veteran experienced malaise and lethargy, and that he underwent the changing of the Omaya reservoir over the biliary stent in January 1990. A cholangiogram in June 1990 was interpreted to reveal no change in the veteran's biliary stent and choledochojejunostomy with a biliary stent through the left hepatic system extending into the small bowel. A small area of stricturing or extrinsic compression was also seen on a branch of the right biliary system, and there was left nephrolithiasis. In August 1990, it was noted that the veteran continued to suffer from fatigue, weakness and lethargy, and the veteran reported a history of sclerosing cholangitis, the first episode of which reportedly occurred in October 1988. At this time, the veteran was informed that these symptoms were part of the chronic nature of PSC. A private medical statement from Dr. C. W., dated in March 1991, notes that the veteran carried a diagnosis of sclerosing cholangitis, and that this was a progressive and nontreatable liver condition, in which the bile ducts of the liver become inflamed and scarred. With time, it was noted that the patient develops chronic and unrelieved biliary obstruction, and that at present, the only successful treatment of this condition was liver transplantation. VA medical records for the period of March 1991 to December 1992 reflect that in March 1991, a cholangiogram was interpreted to reveal an impression of mild changes consistent with sclerosing cholangitis, that the biliary catheter remained patent, and that there was no significant change from June 1990. A June 1991 abdominal ultrasound was interpreted to reveal an impression of a somewhat echogenic liver suggesting fatty infiltration, or in the right setting, a cirrhosis, mild splenomegaly, and no biliary dilatation with biliary stent in place. In August 1991, the veteran's biliary stent was replaced. Throughout 1992, the veteran's symptoms related to his PSC were noted to be unchanged. In a claim dated in December 1992, the veteran stated that he had PSC and that he believed it was caused by radiation exposure. In this regard, he noted that while in service, he had been exposed to radiation therapy for the acne on his back, and that he received radiation two to three times a week for two and a half months. He went on to note that the entire torso from the neck to the thighs was exposed to the treatments, and he believed the treatment was excessive and resulted in a deterioration of his physical condition. In March 1967, he started demonstrating symptoms which were related to the over exposure of radiation, consisting of renal calculi for which he had surgery at that time and again in June 1967. In August 1967, he had exploratory surgery for a hyperparathyroid, which he submitted was clearly related to radiation exposure. Since that time, his condition had worsened, and he indicated that a physician who had treated him in October 1988 indicated to the veteran that he believed his condition was consistent with overexposure to radiation. In support of his December 1992 claim, the veteran also provided copies of various articles which he contended supported his claim that his PSC was related to his radiation exposure during service. The articles addressed the management of gastrointestinal (GI) injury associated with acute radiation syndrome, the relationship between hypercalcemia and bile flow and biliary calcium secretion, therapeutic radiation and hyperthyroidism, fundamentals of radiobiology, an overview of the biological effects of ionizing radiation, and the effects of exposure to low levels of ionizing radiation. VA medical records for the period of January to October 1993 reflect that during 1993, the veteran continued to complain of symptoms associated with his PSC. Radiological examination of the abdomen in August 1993 revealed biliary gas which was also found on the study from 1989. VA radiological consultation in January 1994 indicated that the veteran was claiming service connection for hyperparathyroidism, renal calculi and PSC as secondary to alleged X-ray therapy for acne of the back in service. It was noted that service medical records provided no evidence as to the amount or duration of any such treatment. The radiological examiner indicated that review of the medical record revealed two statements taken from the veteran in 1960 of having received radiation therapy to his back for acne, over a two to three month period. Nowhere in the chart, other than by the veteran's statement, was there documentation of such therapy. From this basis and relying on the veteran's statements, the examiner believed that it was not readily apparent how much radiation therapy both in terms of dosages and frequency, the veteran had received. This examiner was referring the claim to the radiation physicist who he believed to be the most appropriate individual to evaluate the issue of radiation induced pathology. The January 1994 VA medical physicist reviewed the veteran's file in order to find evidence of the relationship between radiation therapy doses and his claimed conditions. However, in order to judge such a condition, the examiner noted that it was very important to have the exact radiation dosages and the frequencies of such therapies. From the information given in the file, the examiner did not find that it was clear how much radiation dosage the veteran received and the times of the therapies. Accordingly, it was difficult for him to establish a relationship between the radiation therapy and the claimed condition. VA endocrine consultation in April 1994 revealed a history of X-ray therapy to the back and neck for acne in 1960. It was further noted that the veteran had problems with nephrolithiasis in 1966, and that there was a diagnosis of parathyroid adenoma for which there was a subsequent exploration. No distinct nodules were found on examination. The assessment included normal thyroid and history of parathyroid adenoma. VA GI clinical consultation in July 1994 revealed that the examiner had followed the veteran's case in the VA GI clinic, and that the veteran's history was positive for PSC. The examiner further commented that there was no evidence to suggest that X-ray therapy could cause PSC, and that the cause of PSC was unknown. At the time of an August 1994 rating decision, which originally denied service connection for PSC, claimed as secondary to radiation exposure, the RO determined that the service medical records were negative for evidence of any complaints or treatment for PSC and that the condition was not one which might be considered service-connected based on radiation exposure. Consequently, the RO denied service connection for this disorder. The veteran did not appeal this decision and it became the last final denial under Evans v. Brown, supra. Service connection for hyerparathyroid and renal calculi as secondary to radiation exposure was deferred pending Chief Benefits Director review, which was to be requested following the completion of necessary development. Since the August 1994 rating decision, additional pertinent evidence has been received as to the issue of service connection for sclerosing cholangitis, which consists of additional VA outpatient records, hearing testimony from January 1999, an article regarding the expansion of radiogenic diseases for VA purposes, a VA medical opinion as to the issue of a relationship between hyperparathyroidism, renal calculi and radiation exposure, December 1998 private opinions from Dr. G., and September 1999 opinions from Dr. M. VA outpatient records for the period of September 1994 to December 1996 reflect that in December 1994, the veteran complained of abdominal pain which was found to possibly be related to the veteran's previous abdominal surgery. It was not believed to represent his underlying PSC. In March 1995, the veteran complained of general malaise and abdominal discomfort, and the diagnosis was PSC. In April 1995, it was determined that there was no evidence of progression of the veteran's PSC. In February 1996, the veteran complained of pain and redness in the area of his biliary stent. At the end of September 1996, the veteran again complained of malaise but no abdominal pain. In August 1995, the veteran provided additional information in support of his claim, which included an article that noted the expansion of the list of radiation-caused diseases for VA purposes. In a VA memorandum from the Chief Public Health and Environmental Hazards Officer, dated in December 1996, it was noted that the veteran had received X-ray therapy for his back in military service in 1960, and was subsequently found to have kidney stones due to a parathyroid adenoma which was removed in 1967. It was further noted that the case was reviewed by the Chief, Radiation Oncology Service, Mountain Home VA Medical Center, who commented that the literature showed that as little as 32 ionizing radiation units (RADS) to the parathyroid could cause adenomas as early as within three years. Therefore, it was this examiner's opinion that even though the total dose and the exact location of radiation were not available from the records, it was likely that the radiation was the cause of the parathyroid in the veteran. The Chief Public Health and Environmental Hazards Office concurred with this opinion. In a letter to the RO, dated in December 1996, the Compensation and Pension Service further noted that service connection for the adenoma and its complications to include kidney stones was warranted. In a private medical report, dated in December 1998, Dr. G. indicated that he was writing this letter in support of the veteran's appeal in regards to the health effects suffered by the veteran after having sustained radiation therapy in the early 1960's. He further indicated that he had extensive background in working with radiation-related health problems and offered the following opinions to a reasonable medical certainty. Although noted to be incomplete due to inadequate maintenance, the available records were noted by Dr. G. to reveal that "considerable X-ray treatment was given, as well as many local medications, internal antibiotics and even an autogenous vaccine was made" with the purpose of abating a rather aggressive case of acne vulgaris that affected the veteran's back, shoulders, chest and face. (Special dermatologic examination VARO, Nashville 3, Tennessee, March 20, 1962 medical record of F. G. W., M.D.) The treating physician at that time was noted to be Colonel J. T. C., Munsen Army Hospital, Fort Leavenworth, Kansas. Dr. G. noted that there was also an entry in the records from Colonel J. T. C. that confirmed that on May 22, 1961, the veteran had "persistent acne of the back, has had Kynex, X-ray and usual therapy. Will now get an autogenous vaccine." Although there were no records maintained detailing the specific doses that the veteran received, Dr. G. indicated that based on the history he had received, the veteran received approximately 12 X-ray treatments in two separate courses of therapy for the acne. He further noted that at the time the veteran received the therapy, the intensity of the dose was sufficient to have actually caused first and second degree burns to his back, neck and shoulders. Subsequent to this treatment, Dr. G. indicated that the veteran had experienced a number of medical problems that, to a reasonable medical certainty, were causally related to those treatments. The causal relationship was confirmed and endorsed by the documents of the Department of Veterans Affairs in relation to Section 3.311 claims based on exposure to ionizing radiation. Specifically, on August 1, 1967, the veteran underwent the surgical excision of a parathyroid adenoma, which had been established to be causally related to radiation in that general area of the body involving the thymus and thyroid. As a secondary consequence of his hyperparathyroidism, which was what led to the excisional biopsy, Dr. G. opined that the veteran experienced both biliary lithiasis and renal lithiasis, and in fact, it was these conditions that ultimately led to the recognition of the hyperparathyroidism. Dr. G. went on to indicate that subsequent to having been surgerized for removal of the stones from his urinary tract, as well as from his biliary tract, the veteran had gone on to develop sclerosing cholangitis. Dr. G. believed that it was a reasonable medical certainty that this condition, as well, was directly related to hyperparathyroidism, which in turn, was a consequence of the radiation therapy that he received. Dr. G. submitted that the veteran had been suffering with the complications of sclerosing cholangitis for the balance of his life and in October 1998, he underwent the most recent series of surgeries on his biliary tract relating to the continuing adverse effects of the sclerosing cholangitis, a disease that, in general, was known to be associated with a shortened life span. Dr. G. concluded that the causal links in this case were well within the range of reasonable medical certainty and, for this reason, he believed that the veteran was entitled to a favorable judgment in regard to his claim in this matter. In a December 1998 addendum to his report, Dr. G. noted that in an article published in the Archives of Internal Medicine, Volume 149, August 1989, titled "Therapeutic Radiation and Hyperparathyroidism," a case controlled study in Rochester, Minnesota by C. M. B., M. P. H., et al., the association between primary hyperparathyroidism and prior therapeutic radiation exposure, at least for women in this population, had been confirmed. Dr. G. also noted an article titled, "Radio Pathology of Organs and Tissues," by W. A., et al., published in 1991 by S.-V., in which it was stated that in cases of radiation effects to the skin involving significant deep penetrating radiation, a very hard, wood-like plaque would develop as much as three centimeters thick which was palpable under the intensely pigmented skin. In the addendum, Dr. G. went on to note that the significance of these articles to the veteran had to do with the fact that at the time of the removal of the sebaceous cyst, it was noted by the surgeon involved that this tissue during the procedure was found to be extremely fibrotic, and the finding of fibrotic tissue in the veteran's back certainly supported the notion that, although under most normal circumstances, radiation therapy for acne would have involved low energy radiation that should not have involved much penetration, if it were not penetrating, it would not have caused this kind of fibrosis. In addition, Dr. G. noted that subsequent surgeries for sebaceous cysts as late as 1979 supported the claim that the radiation received by the veteran was in doses that were significantly higher and more penetrating than would have been expected and that this, in turn, would explain why treatment to the skin on the back would result in a parathyroid adenoma development with the associated hypercalcemic complications of renal and biliary lithiasis. Dr. G. went on to comment that the biliary lithiasis led to and contributed to the development of the veteran's PSC which was his disabling condition, and that given the fact that there were no records as to the specific doses used, there was no way of disproving an appropriate claim that the veteran was overdosed at the time of treatment, and that the overdosing led to the development of a fibrotic skin condition, the parathyroid adenoma, and other sequelae. At the veteran's hearing before a traveling member of the Board in January 1999, the veteran agreed that the only issue on appeal was whether new and material evidence had been submitted to reopen a claim for service connection for PSC (transcript (T.) at p. 2). The veteran underwent X-ray therapy treatment for acne on his back during service in 1960 (T. at p. 4). Treatment lasted over a two week period at the rate of every two days, and the process was repeated over another two week period (T. at p. 4). Sclerosing cholangitis first manifested itself in severe form in 1988, although the veteran noted that it might have been there as much as one to three years earlier (T. at p. 5). The veteran began to have parathyroid problems in 1967, at which time he was continually developing kidney stones (T. at pp. 5-6). No doctor other than Dr. G. had provided a written opinion that there was a relationship between his radiation exposure in service and PSC (T. at p. 6). At the time of his surgery, one doctor had indicated that there was a possibility of a relationship (T. at p. 6). The veteran believed that the literature indicated that radiation and parathyroid affected the immune system, and that this caused his PSC (T. at p. 6). The veteran described the manner in which he was placed on a table and given the X-rays during service (T. at pp. 7-8). The veteran indicated that he had not been given more than two cycles of radiation treatments (T. at p. 8). The veteran also maintained that the development of fibrotic tissue in the area of the radiation treatments was evidence that he had received excessive radiation (T. at pp. 9-10). The veteran further noted that he had recently underwent the removal of some stones from the biliary and that there was something there that could not be removed (T. at p. 11). A July 1999 letter from the Board to Dr. M. requested that this examiner review the entire claims file and provide an opinion as to the degree of medical probability that there was a causal relationship between the veteran's PSC and exposure to radiation during service. Dr. M. was also requested to render an opinion as to the degree of medical probability that there was a causal relationship between the veteran's parathyroid adenoma and/or renal calculi and the veteran's development of PSC. In his medical report, dated in September 1999, Dr. M. initially noted his review of the medical charts in this case and his consultation of textbooks on gastroenterology, hepatology, general medicine, and endocrinology. Furthermore, he indicated that a "MEDLINE" search was conducted on the association of sclerosing cholangitis and radiation exposure. Dr. M. then noted the veteran's history in this matter, which included radiation therapy every other day for two week periods on two occasions, with the actual dosages and type of radiation unavailable and the assumption that the radiation was applied to the back, shoulders, face and chest. Dr. M. also noted that in 1967, the veteran suffered from recurrent kidney stones and there was a diagnosis of hyperparathyroidism, for which the veteran underwent surgical exploration and a parathyroid adenoma was removed. Records subsequent to this point were noted to demonstrate no evidence of hypercalcemia. Thereafter, Dr. M. indicated that the veteran underwent removal of two sebaceous cysts in 1979, at which time the surgeon noted that the skin on the veteran's back was very fibrotic and avascular possibly secondary to his radiation therapy. In 1988, the veteran then developed the onset of liver disease with fatigue and jaundice, which was accompanied by lever function study abnormalities. At this time, the veteran underwent a cholecystectomy, splenectomy and subsequently, hepaticojejunostomy with a Roux en Y anastomosis. The veteran was also noted to have undergone a colonoscopy which revealed no evidence endoscopically or pathologically of ulcerative colitis, which was often associated with PSC. There were also laboratory studies from 1992 which showed that the veteran had positive antibodies to anti-smooth muscle, and also brush border indicative of autoimmunity. In Dr. M.'s review of the records, there was no evidence of liver or biliary tract disease at the time of diagnosis and treatment of the hyperparathyroidism. Dr. M. observed that the etiology of PSC was unknown. PSC was believed to have an immunologic basis in that approximately 70 percent of patients had associated ulcerative colitis which was another autoimmune-linked disease. Secondary biliary sclerosis could be associated with other diseases that caused obstruction of the biliary system, including common bile duct stones, chronic pancreatitis, and certain parasitic infections. Dr. M. went on to comment that the relationship of hyperparathyroidism and biliary tract disease, including gallstones, was debatable. Hyperparathyroidism as a risk factor for cholelithiasis was not mentioned in any of the textbooks of medicine, gastroenterology, hepatology, or endocrinology that he reviewed. He noted that there were "reports in the literature of both positive (Octachiurica Scandinavia 1974; 140: 618-625), and negative associations (Gut 1977; 18: 543-546) of hyperparathyroidism and gallstone disease." Reference was also made to the opinion of Dr. G. that hypercalcemia could be a cause of biliary tract disease by increasing bile lithogenicity, in response to which Dr. M. indicated that there was some experimental evidence for this. However, Dr. M. noted that in the veteran's case, correction of his hyperparathyroidism and hypercalcemia occurred some 20 years before the onset of liver disease. In the opinion of Dr. M., the possibility that hyperparathyroidism/hypercalcemia was associated with increased gallstone disease appeared to be a tenuous link at best, and not well established. Furthermore, he was skeptical again that his hyperparathyroidism/hypercalcemia which was corrected remote from his liver disease was an etiologic factor for the sclerosing cholangitis ("MEDLINE" search). Dr. M. could find no information in the literature on the association between radiation therapy and PSC. He recognized that the etiology of PSC was unknown. Histologically, PSC was characterized by excessive fibrosis, and radiation enteritis was also associated with fibrosis. However, he believed that the link between the two had not been established. Furthermore, if the veteran was treated with deeply penetrating form of radiation therapy which could have accounted for his liver disease, he would have expected symptoms of acute radiation sickness, which were not apparent on review of the veteran's medical records. He therefore concluded that a relationship between the veteran's radiation treatment for acne and the development of sclerosing cholangitis was speculative. Finally, Dr. M. noted that the VA had determined that parathyroid adenoma was a radiogenic disease, and there had been some documentation in the literature on the association between radiation therapy and parathyroid adenomas. While this was noted to be outside of his expertise, in his opinion, a causal relationship between the veteran's parathyroid adenoma and hypercalcemia and his subsequent development of PSC some 20 years hence was remote. II. Analysis Whether New and Material Evidence has been Submitted to Reopen the Claim While this case has been in appellate status, the United States Court of Appeals for the Federal Circuit entered a decision in Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the Court in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Id. at 1357, 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" (Id. at 1357, 1360), and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, the Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Id. at 1359 [hereafter Colvin definition]. The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimant's than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted will have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1363. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. In this case, the RO provided the appellant with the provisions of 38 C.F.R. § 3.156(a) in the January 1998 statement of the case. Moreover, the Board has reviewed the evidence received since the August 1994 rating decision and, as indicated below, has found that the private medical opinions of Dr. G. are sufficient to reopen the veteran's claim for service connection for sclerosing cholangitis, claimed as secondary to radiation exposure. Accordingly, the Board finds that the claimant has been provided the governing regulatory definition of "new and material evidence," that the RO's adjudication of the claim was consistent with that definition, that this evidence qualifies as "new and material evidence" under this definition, and that it is therefore not prejudicial for the Board to proceed with the adjudication of this claim. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has considered the evidence and contentions received since the August 1994 rating decision and finds that it most importantly consists of the December 1998 medical opinions from Dr. G. that the veteran's sclerosing cholangitis was the probable result of the veteran's hyperparathyroidism and/or radiation exposure in the military. Consequently, the Board finds that the additional evidence and material of record in this case bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and by itself or in combination with other evidence, is so significant that it must be considered in order to fairly decide the merits of the claim. For the limited purpose of determining whether a claim is well grounded, the evidence submitted by and on behalf of the claimant must be presumed to be credible. King v. Brown, 5 Vet. App. 19 (1993). In this case, the opinion of Dr. G. that the veteran's sclerosing cholangitis was the probable result of the veteran's hyperparathyroidism and/or radiation exposure in the military is sufficient to make the veteran's claim well grounded. The Board notes that in a merits determination, however, no such presumption of credibility attaches. Decision on the Merits The veteran waived consideration by the agency of original jurisdiction of the report by Dr. G. as well as the medical texts submitted in support of the claim. He exercised his right to a hearing. Likewise, the opinion of the independent medical expert has been reviewed by the appellant and his representative in accordance with the governing regulatory procedures. No further argument or evidence was submitted by or on behalf of the claimant. While the issue considered by the RO was whether new and material evidence had been submitted to reopen the claim for service connection, the substantive arguments advanced by and on behalf of the claimant have gone not simply to that procedural question, but have also directly addressed the merits of the claim at length. In light of these actions, the Board concludes that it is not prejudicial error for the Board to address the merits of claim without further remand to the RO. Bernard, supra. The Board would further observe that there no doubt that the veteran has advanced this claim in good faith and, as the referral to the independent medial expert indicates, the Board by no means regards the claim as frivolous. Ultimately, however, the Board is tasked by law to resolve the claim not on the strength of the veteran's subjective belief in the merit of his claim, but on the weighing and evaluation of the objective evidence of record. The Board first notes that PSC is not among the disorders identified by the Secretary for presumptive service connection under 38 C.F.R. §§ 3.309(d) and/or 3.311. Thus, the Board initially finds that the veteran is not entitled to presumptive service connection for his claimed disability under 38 C.F.R. §§ 3.309(d) and/or 3.311. As was previously noted, however, pursuant to Combee v. Principi, supra, the veteran is not foreclosed from establishing service connection on a direct basis, based solely on exposure to ionizing radiation, if the disability is not specifically listed under 38 C.F.R. §§ 3.309(d) or 3.311. In this regard, the veteran must provide competent evidence of a nexus between his current disorders and service. With respect to the issue of the probative value of the veteran's nexus evidence, the Board notes the opinions of Dr. G. that as a secondary consequence of the veteran's hyperparathyroidism, the veteran experienced both biliary lithiasis and renal lithiasis, and in fact, it was these conditions that ultimately led to the recognition of the hyperparathyroidism, and that subsequent to having been surgerized for removal of the stones from his urinary tract, as well as from his biliary tract, the veteran had gone on to develop sclerosing cholangitis. Dr. G. believed that it was a reasonable medical certainty that this condition, as well, was directly related to hyperparathyroidism, which in turn, was a consequence of the radiation therapy that he received during service. Dr. G. went on to opine in his December 1998 addendum report that subsequent surgeries for sebaceous cysts as late as 1979 supported the claim that the radiation received by the veteran was in doses that were significantly higher and more penetrating than would have been expected and that this, in turn, would explain why treatment to the skin on the back would result in a parathyroid adenoma development with the associated hypercalcemia complications of renal and biliary lithiasis. Dr. G. went on to comment that the biliary lithiasis led to and contributed to the development of the veteran's PSC which was his disabling condition, and that given the fact that there were no records as to the specific doses used, there was no way of disproving an appropriate claim that the veteran was overdosed at the time of treatment, and that the overdosing led to the development of a fibrotic skin condition, the parathyroid adenoma, and other sequelae. The Board's review of Dr. G.'s opinions reflects that Dr. G. places significant reliance on a critical fact which is not demonstrated in the record. More specifically, the Board's review of the evidence reflects that while the veteran experienced elevated calcium levels at the time of his initial treatment for hyperparathyroidism and renal stones during the period of 1967 to 1969, there was no diagnosis of hypercalcemia and/or biliary stones, much less sclerosing cholangitis or liver disease. In addition, the record reflects an initial finding of biliary lithiasis in 1988. Thus, when Dr. G. premises his opinion that as a secondary consequence of the veteran's hyperparathyroidism, the veteran experienced both biliary lithiasis and renal lithiasis, that it was these conditions that ultimately led to the recognition of the hyperparathyroidism, and that treatment to the skin on the back would result in a parathyroid adenoma development with the associated hypercalcemic complications of renal and biliary lithiasis, he is drawing a connection between manifested symptoms that have been shown by the record to be approximately 20 years apart. On the other hand, the Board finds that the more recent September 1999 medical opinion of Dr. M. was based on a more thorough and accurate analysis of all of the evidence of record. For example, Dr. M. accurately reported that in 1967, the veteran suffered from recurrent kidney stones and there was a diagnosis of hyperparathyroidism, for which the veteran underwent surgical exploration and a parathyroid adenoma was removed. He further correctly noted that records subsequent to this point were noted to demonstrate no evidence of hypercalcemia. Therefore, Dr. M.'s review of the veteran's records led to the appropriate conclusion that there was no evidence of liver or biliary tract disease at the time of diagnosis and treatment of the hyperparathyroidism in the late 1960's, and that the veteran did not experience the onset of liver disease with fatigue and jaundice, until 1988. Thus, when Dr. M. opined that the existence of a relationship between hyperparathyroidism and biliary tract disease, including gallstones, was a tenuous link at best, and not well established, and that he was skeptical that the veteran's hyperparathyroidism/hypercalcemia which was corrected remote from his liver disease was an etiologic factor for the sclerosing cholangitis, the Board finds this opinion to be supported by a more accurate reading of the evidence of record. Moreover, the Board notes that Dr. M. also squarely takes on Dr. G.'s assertion that hypercalcemia could be a cause of biliary tract disease by increasing bile lithogenicity, when he again noted that the correction of the veteran's hyperparathyroidism and hypercalcemia occurred some 20 years before the onset of liver disease. Furthermore, Dr. M. determined that if the veteran was treated with a deeply penetrating form of radiation therapy which could have accounted for his liver disease, he would have expected symptoms of acute radiation sickness, which were not apparent on review of the veteran's medical records. He therefore concluded that a relationship between the veteran's radiation treatment for acne and the development of sclerosing cholangitis was speculative, and the Board is in agreement with this conclusion. The Board further agrees with Dr. M.'s opinion that a causal relationship between the veteran's parathyroid adenoma and hypercalcemia and his subsequent development of PSC some 20 years hence was equally remote. The Board notes that it continues to find that the opinions of Dr. G. and the previous articles provided by the veteran were sufficient to render the veteran's claim on appeal well grounded under 38 U.S.C.A. § 5107(a). However, on the merits, the Board has determined that the articles themselves are too general and inconclusive by themselves to be accorded significant weight, that the veteran's assertions as to a relationship between radiation exposure and/or his hyperparathyroidism in the late 1960's and his PSC are deserving of only minimal weight, and that the opinions of Dr. G., although of greater evidentiary weight than the veteran's opinions and assertions, were fundamentally based on the incorrect premise that the veteran experienced biliary lithiasis and other symptoms representative of PSC or liver disease in the late 1960's, and are, therefore, also of minimal probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Curry v. Brown, 7 Vet. App. 58, 68 (1994). Consequently, the Board must find that, as between the recollections of the veteran and the nexus opinions in support of the claim, and the more contemporaneous clinical records during the period of 1967 to 1969 and opinions based on a more accurate premise, much the greater probative weight must be assigned to the latter. On the merits, the clear weight of the more probative evidence is against the claim, and thus the benefit of the doubt doctrine is not for application. Parenthetically, the Board notes that it has also considered the issue of entitlement to service connection for cirrhosis of the liver on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309, but finds that there has not yet been a clear diagnosis of this disorder (a June 1991 ultrasound's findings were indicated to be suggestive of cirrhosis), and that in any event, there is no nexus evidence linking such a disorder to service or a period of one year following active duty. ORDER The claim for service connection for PSC, claimed as secondary to radiation exposure, is denied. Richard B. Frank Member, Board of Veterans' Appeals