BVA9504977 DOCKET NO. 93-10 857 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for status postgastrectomy for ulcer disease. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to service connection for peripheral vascular disease, claimed as a leg disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from November 1942 to March 1946 and from January to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from action of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO) which denied the veteran's attempt to reopen a claim for service connection for a "stomach disorder" and denied service connection for a psychiatric disability and peripheral vascular disease, claimed as a leg disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had bad pain in his stomach and in his legs while on board a ship during his World War II service. He saw the ship's doctor many times, and after service he went to Dr. Abbott and to Maryview hospital. He had an operation to remove part of his stomach after he hemorrhaged in 1948. Dr. Abbott told him he had ulcers years before he hemorrhaged as ulcers do not come on right away. He has had problems with his legs since service. He also had problems with his nerves in service and still gets very nervous and shaky. 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 new and material evidence to reopen the claim for service connection for status postgastrectomy has been presented and the claim is reopened, but that the preponderance of the evidence is against allowance of the claim. It is also the decision of the Board that the preponderance of the evidence is against the claims for service connection for peripheral vascular disease, claimed as a leg disorder, and service connection for a psychiatric disability. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. New, relevant evidence has been submitted to reopen the veteran's claim for service connection for a stomach disorder. 3. A chronic stomach disorder was not shown in service and a gastric ulcer was first shown more than 3 1/2 years after discharge from the veteran's first period of service and prior to his second period of service. 4. His status postgastrectomy did not increase in severity during his second period of service. 5. A chronic leg disorder was not shown in service, and peripheral vascular disease was first shown many years after service. 6. A chronic psychiatric disability was not shown in service, and the veteran's current complaints of nervousness are not due to a chronic, acquired psychiatric disability which had its onset in service. CONCLUSION OF LAW 1. New and material evidence to reopen a claim for service connection for status postgastrectomy for ulcer disease, a stomach disorder, has been received and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). 2. Status postgastrectomy for ulcer disease, or a chronic stomach disorder, was not incurred in or aggravated by service, nor may ulcer disease be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1153, 5107 (West (1991); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (1994). 3. Peripheral vascular disease, claimed as a leg disorder, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 4. A chronic acquired psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented claims which are "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication of additional available evidence which would be relevant to the veteran's claims. Records of treatment in the years proximate to service have been either obtained or requested. Records of more recent treatment have not been obtained, but the veteran does not allege that they would provide any relevant information concerning the onset of his disabilities in service. Such records would be from far too remote a time to the period in question, and the Board finds that it is not necessary to remand this case for essentially cumulative records. For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303 (1994). There are some disabilities, including ulcer disease, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Status Post Gastrectomy for Ulcer Disease The RO denied service connection for a stomach condition in a rating decision of September 1950. The veteran did not appeal that decision, and the decision is final. 38 C.F.R. § 3.104(a). However, that decision may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. "New" evidence is "evidence which is not . . . merely cumulative of other evidence on the record." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "Material" evidence is evidence that "is relevant and probative of the issue at hand." Id. Further, to be new and material, evidence must, when taken together with all the evidence of record, create a reasonable possibility that the outcome would be changed. Id.; see Manio v. Derwinski, 1 Vet.App. 140 (1991). In this case, since the 1950 decision, the veteran has had another period of service, and additional service medical records have been associated with the claims folder. Additional records from Maryview Hospital dated in 1948, proximate to the period in question, have also been made a part of the record. The Board finds that these records are not cumulative or redundant and that they are probative of the issue presented. Therefore, the claim for service connection for the veteran's gastrointestinal disorder is reopened. The Board also concludes that because the RO in the statement of the case provided the laws and regulations pertaining to service connection and essentially considered this issue on a de novo basis and because the veteran was afforded an opportunity to present his testimony on the substantive merits of the issue at his personal hearing in April 1992, there will be no prejudice to the veteran in proceeding with a de novo review of the issue as is required when the claim has been reopened. Bernard v. Brown, 4 Vet.App. 384 (1993). Service medical records for the first period of service reveal that the veteran was treated in March 1943 for complaints of stomach trouble and dizzy spells. It was reported that he had vague stomach pains which he was unable to describe in any detail and which apparently had no particular cause. After examination it was felt that his complaints were mostly imaginary and connected with his dislike of his duty assignment and that his dizzy spells were probably homesickness. The diagnosis was no disease. His March 1946 separation examination was negative for any relevant gastrointestinal disability. Records from Maryview Hospital reveal that he was treated there in April 1948 for acute influenza. The clinical records of this treatment contain no complaints, history or findings of gastrointestinal disease, including ulcer disease. On a Naval Reserve reenlistment examination in February 1949 the veteran denied having or ever having had frequent or severe indigestion and stomach or intestinal trouble. The veteran was hospitalized at Maryview Hospital in February and March 1950 during which he underwent resection of the stomach for gastric ulcer. Chronic hypertrophic gastritis was also diagnosed. He was hospitalized at a VA facility in July 1950 for repair of an incisional hernia in the upper abdomen. On an examination for Reserve purposes in November 1950 he reported having had a subtotal gastrectomy in February and that he was currently asymptomatic. On a service enlistment examination in January 1954 the veteran provided a history of operations for stomach ulcer in 1947 with no trouble of any kind since. A Board of Medical Survey in February 1954 related a history of the veteran's developing epigastric pain five years previously after which a duodenal ulcer was demonstrated on upper gastrointestinal X-rays. Two years later he experienced a gastric hemorrhage and underwent partial gastrectomy. He had had occasional epigastric pain and vomiting since that time. The Board found that this was an unacceptable defect and recommended discharge from service. It also noted that there was no evidence of any permanent aggravation of the condition by his short period of service. The veteran was examined by a private physician in March 1954 for complaints of vague abdominal pain which he attributed to a recurrence of an abdominal hernia. Physical examination was negative. Subsequent VA and private treatment records show no specific complaints or treatment for ulcer disease or residuals of the subtotal gastrectomy although history was given of a subtotal gastrectomy in 1947 or 1948. At his hearing in April 1992 the veteran testified that he had burning stomach pain for which he was given Maalox in service. He also had vomiting and blood in his stool in service and in 1948 had a rectal hemorrhage and underwent gastrectomy in Maryview Hospital in 1948. A review of the evidence shows only one episode of vague abdominal complaints in service. Contrary to his current assertions of chronic stomach trouble since service, the record contemporaneous and proximate to service clearly shows that he did not have chronic gastrointestinal problems in service or from service to 1950 when he underwent subtotal gastrectomy. There was no indication of such problems on his 1946 separation examination, and his treatment at Maryview Hospital in 1948 (by Dr. Abbott) was clearly not for ulcer disease. Those clinical record do not show gastrointestinal complaints, and the treatment was for acute influenza, not ulcer disease. He again denied stomach problems on an examination in February 1949, and ulcer disease was first shown in 1950, more than 3 1/2 years after service discharge in 1946. The veteran has asserted that doctors told him his ulcer could not have started right away, at the time of treatment, and that he had the problem in service and right after service. However, there is no medical evidence relating his ulcer disease to service. Moreover, it is recognized that ulcer disease may develop over a period of time and that onset may precede symptomatic manifestations. It is on this basis that the laws and regulations provide a one-year presumptive period for ulcer disease; that is, service connection will be granted if the disease is manifested to a degree of 10 percent within one year of service discharge. However, here there is no manifestation of chronic gastrointestinal symptoms for more than 3 years after service, and it would be speculative to relate the onset of ulcer disease to his period of service after so long a period of time. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). With regard to his second period of service, there is nothing in the record to indicate any increase in severity of the basic pathology of his postoperative ulcer disease during his service in 1954. It was apparently decided within 3 weeks after entry into that period of service that his subtotal gastrectomy was an unacceptable defect and he was discharged from service. It was specifically found that there was no aggravation of the disability during service, and this Board finds no indication otherwise. The medical evidence contemporaneous and proximate to service far outweighs the veteran's recollections many years after service, including his testimony at his personal hearing, and the preponderance of the evidence is against the veteran's claim for service connection for a gastrointestinal disability. There is no doubt, and, therefore, can be no resolution of doubt in his favor. Psychiatric Disorder As noted above, service medical records showed complaints of stomach trouble and dizzy spells which were felt to be related to dislike for his duty assignment and to homesickness in March 1943. It was noted that there was no evidence of psychotic behavior, and the diagnosis was no disease. The service separation examination was negative for any acquired psychiatric disorder. On Reserve examinations in February 1949 and November 1950 he denied having or ever having had depression or nervous trouble of any sort. A document pertaining to VA hospitalization in March 1953 noted a diagnosis of psychophysiological gastrointestinal reaction manifested by nausea and vomiting. A February 1954 report of a Board of Medical Survey noted that in addition to having ulcer disease, the veteran had an inadequate and immature personality. The veteran was examined by a private physician in March 1954 for complaints of vague abdominal pain. The diagnosis was mild anxiety reaction. During VA hospitalization in July 1977 for alcohol abuse, there was no reference to an acquired psychiatric disorder, and grossly normal psyche and personality traits were noted on VA examination in June 1979. Subsequent VA and private medical records including a report of VA hospitalization in August and September 1991 make no reference to a chronic acquired psychiatric disorder. At his personal hearing in April 1992 the veteran testified that he gets very nervous and has to stop what he is doing. He gets shaky and dizzy and loses his breath. The doctor told him his stomach condition could make him nervous. A review of the evidence does not show a chronic acquired psychiatric disorder in service. Although there were complaints of vague stomach pains and dizziness on one occasion, there were no findings of a chronic psychiatric disorder. The veteran denied any such symptoms on examinations in 1949 and 1950, and there is no medical evidence suggesting the onset of a chronic psychiatric disability during his first period of service. A psychophysiological gastrointestinal reaction was found in 1953, approximately 7 years after service and prior to his second period of service. With regard to his second period of service, the Board of Medical Survey found him to have an inadequate and immature personality, but a personality disorder or trait is not is not a disease or injury within the meaning of applicable VA legislation. 38 C.F.R. § 3.303(c). That is, it is not a service-connectable disability. Although a private physician diagnosed a mild anxiety reaction shortly after the veteran's discharge from service in March 1953, he did not indicate a chronic psychiatric disorder and did not relate such disorder to the veteran's periods of service. There is no subsequent medical indication of a chronic anxiety reaction, and the veteran's vague complaints of nervousness are not necessarily diagnostic of chronic psychoneurotic disorder as opposed to a personality disorder as found during his second period of service. In any event, the onset of "nervousness" is not shown in service. The Board has considered the veteran's testimony to the effect that the doctor told him that his stomach condition would cause him to be nervous. However, since service connection is not established for a stomach disability, there is no basis to service connect any associated psychiatric disability. Again, the preponderance of the evidence is against this claim. Peripheral Vascular Disease, Claimed as a Leg Disorder Service medical records are devoid of complaints, treatment or findings of a leg or peripheral vascular disorder. A March 1970 VA outpatient treatment record shows treatment for a right leg injury. On VA examination in June 1979 there were no complaints referrable to the legs, and on examination, peripheral pulses were normal and there were no varicose veins. Calcification of the abdominal aorta and iliac arteries was shown on X-ray studies. During VA hospitalization in August and September 1991 it was noted that he was a known case of peripheral vascular disease, with aortoiliac occlusive disease and superficial femoral artery occlusive disease, and that he suffered from bilateral claudication symptoms. At his personal hearing in April 1992 the veteran testified that he had aching, pain and cramps in his legs in service, and although he went to sick bay for treatment, they did not write this in the records. He got treatment from his private medical doctor after service and in 1986 had bypass surgery in a VA hospital. However, the Board notes that he denied ever having any lameness on Reserve examinations in 1949 and 1950 and specifically denied having or ever having had cramps in his legs on enlistment examination in January 1954. The earliest evidence of peripheral vascular disease is that of the X-ray findings on VA examination in June 1979, more than 33 years after his first discharge from service and more than 25 years after his second discharge from service. This is too remote from service to be related thereto, and there is no medical evidnce or opinion suggesting such a relationship. The veteran's testimony and statements are not competent evidence of such relationship since he does not possess the medical expertise to render an opinion on medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). While he is competent to describe symptoms, his account of symptoms continuing since service is contradicted by the medical evidence proximate to his periods of service. This medical evidence far outweighs his current recollections, and the preponderance of the evidence is against the claim. ORDER Service connection for status postgastrectomy for ulcer disease, a psychiatric disorder and peripheral vascular disease, claimed as a leg disorder, is denied. HOLLY E. MOEHLMANN 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.