Citation Nr: 0000651 Decision Date: 01/10/00 Archive Date: 09/08/00 Citation Nr: 0000651 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 95-34 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for a stomach disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active duty from January 1973 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) from a January 1995 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO) which determined that the veteran had not submitted new and material evidence sufficient to reopen his claim for service connection for stomach disorder. The veteran filed a timely appeal, and the case was referred to the Board for resolution. In a decision dated October 19, 1999, the Board reopened the veteran's claim of entitlement to service connection for stomach disorder, on the basis that new and material evidence had been submitted. The Board also found that the claim of entitlement to service connection for stomach disorder was well-grounded. Moreover, the Board remanded the issue of entitlement to service connection for stomach disorder to the RO for further development. However, the Order states that entitlement to service connection for stomach disorder is granted. For the reason explained below, that Board's decision and remand will be vacated in its entirety. VACATUR VA regulations provide that an appellate decision may be vacated by the Board at any time on the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. 20.904 (1999). In November 1999, the Oakland California Regional Office (RO), on the behalf of the veteran, articulated a request to vacate the Board's October 1999 decision. Because the Board issued an incorrect order, the decision is ambiguous. The error should be corrected in such a manner that a fair and fully informed decision may be made on the appeal. In view of the foregoing, the Board's October 19, 1999 decision is hereby vacated. In a separate decision, the Board will address de novo the veteran's appeal on the issue of whether new and material evidence has been submitted to reopen the claim of service connection for stomach disorder. ORDER The Board's decision of October 19, 1999, is hereby vacated. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. ยง 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This vacate decision does not constitute a decision of the Board on the merits of your appeal. Citation Nr: 9929897 Decision Date: 10/19/99 Archive Date: 12/06/99 DOCKET NO. 95-34 411 DATE OCT 19, 1999 On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for stomach disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active duty from January 1973 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) from a January 1995 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). During a July 1999 hearing before a member of the Board, the veteran withdrew his appeal on the issues of entitlement to service connection for a left temporomandibular joint disorder and entitlement to a rating in excess of 30 percent for chronic tension headaches. The Board finds, therefore, that it is without jurisdiction to render a decision on these issues. See Hamilton v. Brown, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if withdrawn); 38 C.F.R. 20.204 (1999) (a claimant may withdraw his substantive appeal at any time before the Board promulgates a decision). FINDINGS OF FACT 1. In April 1993, the RO denied service connection for a stomach disorder. The veteran did not appeal. 2. The evidence received since the RO's October 1993 rating is new and material in that it is sufficiently significant, when viewed in context of all the evidence of record, that it must be considered in order to fairly decide the merits of the case. 3. There is competent evidence that the veteran has a current stomach disability that is related to service. 2 - CONCLUSIONS OF LAW 1. The RO's October 1993 decision denying service connection for a stomach disorder is final. 38 U.S.C.A. 7105 (West 1991); 20 C.F.R. 20.302, 20.1103 (1999). 2. Evidence received since the RO denied entitlement to service connection for a stomach disorder is new and material and the claim is reopened. 38 U.S.C.A. 5108 (West 1991); 38 C.F.R. 3.156 (1999). 3. The claim for service connection for a stomach disorder is well grounded. 38 U.S.C.A. 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A review of the evidence of record discloses that in an October 1993 rating decision, the RO denied service connection for a stomach disorder. The RO determined that the veteran's service records did not show a chronic stomach disorder. The service records showed a diagnosis of gastroesophageal reflux. Additionally, there was no evidence of a chronic stomach disorder shown on a June 1993 VA examination. In a letter dated in June 1994, the veteran was informed that service connection for a stomach disorder was denied. The veteran did not appeal. The evidence of record at the time of the RO's decision was as follows: The service medical records contain several medical examination reports including entrance and separation examination reports along with medical records spanning the veteran's entire military career. The veteran was seen in November 1992 with complaints of burning pain in the upper abdominal when eating spicy foods. The assessment was spicy food induced gastritis and rule out early ulcer. The veteran underwent an upper gastrointestinal series. The stomach was normal. However, - 3 - gastroesophageal reflux was demonstrated. The assessment was gastroesophageal reflux. The veteran's separation examination showed a normal abdomen and viscera evaluation. The veteran was accorded a VA examination in June 1993. At that time, he reported that he had stomach problems after eating spicy foods. He reported that the pain was primarily located in the lower abdomen and not epigastric. On examination, the digestive system was normal. The diagnosis was history of stomach condition. No pathology found. No treatment recommended. The veteran underwent an upper gastrointestinal series which was negative. The evidence received since the RO's October 1993 decision is as follows: In a statement dated in January 1995, M.M., M.D., reported that he examined the veteran for complaints of recurrent episodes of lower abdominal pain. On examination, the abdomen was soft. There was mild tenderness in the epigastrium and left lower quadrant. There was no evidence of rebound, no guarding, and no masses. The opinions included; severe heartburn with poor response to antacids, upper abdominal pain, rule out peptic ulcer, rule out esophagitis and gastroesophageal reflux disease and hiatal hernia, rule out esophageal stricture; rule out nonsteroidal and anti-inflammatory agent induced gastropathy. Medical records from Memorial Medical Center of Jacksonville (MMCJ) dated in January 1995 show that the veteran underwent an upper panendoscopy, biopsy of body and atrium. The impressions were gastritis and rule out helicobacter pylori infection. VA outpatient treatment records dated in January and October 1995 show that the veteran was seen with complaints of heartburn in January. The diagnosis was gastritis. The veteran was seen in October with complaints of lower abdominal pain. On examination, the abdomen was soft with no guarding. The right lower quadrant was tender with mild rebound. - 4 - Private medical records dated from March 1995 to February 1996 show that the veteran was seen and treated for epigastric discomfort. A computed tomography of the stomach taken in December 1995 revealed diffuse fatty infiltration of the liver. There were no other major findings. The veteran was accorded a personal hearing before a hearing officer at the RO in January 1996. At that time, he testified that he had no stomach problems prior to service or at the time of entry into active duty. He reported that he initially experienced stomach pain and heartburn between 1973 and 1976. He reported that he was never hospitalized but sought treatment on several occasions. He reported that he took antacids as well as Mylanta. Following separation from service, extensive testing was performed and he was diagnosed with gastritis later described as helicobacter pylori. An operative report from MMCJ dated in February 1995 shows that the veteran underwent a total colonoscopy to cecum. The opinions were normal colonoscopy from rectum to cecum and abdominal pain, change in bowel habits, cause not determined. In a statement dated in November 1995, R.M.,, reported that the veteran presented with complaints of constant but tolerable epigastric pain and discomfort left side more than right. On examination, the abdomen was firm and there was some mild tenderness on palpation of the epigastric area and the splenic area. The impression was vague abdominal pain was probably musculoskeletal in nature. Private medical records dated in July 1999 show that the veteran underwent an upper gastrointestinal endoscopy. It was noted that the veteran tolerated the procedure well. There were no immediate complications observed. The postoperative diagnosis was distal gastritis with erosion and superficial ulcers. The veteran was accorded a hearing before the undersigned in July 1999. At that time, he testified that he began to experience reflux during service which continued 5 - after his separation. He reported that following his discharge from service he was treated for reflux as well as helicobacter pyloric gastritis. He reported that his medications included Rolaids, Mylanta, Turns, and Pyloric factor. In a statement dated in August 1999, B.B., M.D., reported that he assessed the veteran for his gastrointestinal complaints. He reported that the veteran had chronic gastritis that was confirmed by endoscopy. Dr. B opined that it was as likely as not that there was a relation between the veteran's current stomach disorder and the stomach disorder he experienced during active service. Accompanying the statement was a histopathology report dated in July 1999, in which it was reported that there was no appreciable chronic gastritis, but there was mild fibrosis of the lamina propria, which could be related to previous gastric erosion. Pertinent Law and Regulations Following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. 7105 (West 1991); 38 C.F.R. 3.104(a) (1999). If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. 5108 (West 1991). The veteran has petitioned to reopen a previously denied claim of service connection for a seizure disorder. If new and material evidence is presented or secured with respect to a claim that has been denied, the claim will be reopened, and the claim decided upon the merits. 38 U.S.C.A. 5108; 38 C.F.R. 3.156(a). the Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally denied claim, the VA must reopen the claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). - 6 - A three-step analysis is conducted under 38 U.S.C. 5108. Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material. For purposes of determining whether new and material evidence has been submitted, "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new and material, the Board must reopen the claim and review all the evidence of record to determine the outcome of the claim on the merits. The first step involves two questions: (1) Is the newly presented evidence "new" (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)? (2) Is it "probative" of the issues at hand? Evans v. Brown, 9 Vet. App. 273 (1996). A third requirement for reopening imposed by the Court, that the evidence create a reasonable possibility of changing the outcome, has been invalidated by the United States Court of Appeals for the Federal Circuit. Hodge v. West, 155 F.3d 1356 (Fed Cir 1998). "New and material evidence" means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor 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) (1999). Evidence is new when not merely cumulative of other evidence in the record, and material when relevant and probative of the issue at hand. The Court has set forth guidelines regarding the credibility to be accorded to the additional evidence submitted in a claim for service connection based on finality. These guidelines require that in determining whether the additional evidence is new and material, the credibility of the evidence must be presumed. Justle v. Principi, 3 Vet. App. 510, 512- 13 (1992). The Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require the VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, 7 Vet. App. 216 (1994). - 7 - Second, if the claim is reopened, the VA must immediately determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. 5107 (West 1991). Third, if the claim is well grounded, the claim may be evaluated upon its merits provided the duty to assist contained in 38 U.S.C.A. 5107(b) has been met. Winters v. West, 12 Vet. App. 203 (1999). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d) (1999). New and Material Evidence Service connection for a stomach disorder was denied in October 1993 on the basis that a chronic stomach disorder was not shown in service, and had not been shown since service. The private medical evidence submitted since the prior denial shows that the veteran has a chronic stomach disorder. The July 1999 statement from the veteran's treating physician suggests that the veteran's current stomach disorder and the gastroesophageal reflux experience during service are related. During his July 1999 travel board hearing the veteran reported gastrointestinal problems that began in service and has continued since separation, the Board can infer the veteran was claiming that his stomach disorder began in service and has continued since separation. In determining if evidence is new and material, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the August 1999 statement from the veteran's treating physician is relevant evidence which requires consideration in connection with the - 8 - evidence of record in order to fairly adjudicate the veteran's claim of entitlement to service connection. In light of the foregoing, the Board concludes that the veteran has submitted "new" and "material" evidence sufficient to reopen his claim. Evans v. Brown, 9 Vet. App. 273, 284 (1996); 38 C.F.R. 1.56. Therefore, the veteran's claim for service connection for a stomach disorder is reopened. Well Grounded Claim A person filing a claim for VA benefits has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C. 5107(a); see Carbino v. Gober, 10 Vet.App. 507, 509 (1997). The determination of whether a claim is well grounded is a matter of law that this Court reviews de novo. See 38 U.S.C. 7261(a)(1); Robinette v. Brown, 8 Vet.App. 69, 74 (1995). The Court has held that for a claim to be well grounded, it must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (quoting 38 U.S.C. 5107(a)). A well-grounded claim generally requires (1) medical evidence (diagnosis) of a current disability; (2) medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting the definition of a well- grounded claim set forth in Caluza). Where the determinative issue involves medical causation, competent medical evidence is required for the claim to be well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994). 9 - To establish service connection for a claimed disability, the evidence of record must generally demonstrate that "a particular injury or disease resulting in current disability was incurred coincident with service in the Armed Forces." See, 38 C.F.R. 3.303(a) (emphasis added). Alternatively, service connection may be established under 3.303 (b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. Brewer v. West, 11 Vet. App. 228, 231 (1998); See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). In this case there is competent evidence of a current disability in the form of the diagnosis of chronic gastritis. The service medical records provide competent evidence of an inservice disease or disability. There is also competent evidence, in the form of the private physician's opinion, of a relationship between the current gastritis and service. The August 1999 statement notes that there is a relationship between the veteran's current stomach condition and a stomach disorder he experienced during service. Accordingly, the Board finds that there is competent evidence in support of each of the Caluza elements of a well grounded claim, and that the veteran's claim is well grounded. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for stomach disorder is reopened. Entitlement to service connection for stomach disorder is granted. - 10- REMAND One private physician has expressed the opinion that the veteran has current gastritis, which is as likely as not related to service. However, evidence accompanying that opinion showed that the veteran did not have current gastritis. Moreover, the private physician did not provide any reasoning for his opinion. hi view of the foregoing, it is the opinion of the Board that further development is necessary. This case is REMANDED for the following: 1. The RO should request that the veteran furnish information as to any treatment the veteran has received for a stomach condition since service. The RO should then attempt to secure records of any reported treatment not already part of the claims folder. 2. The RO should then afford the veteran an appropriate gastrointestinal examination in order to determine the nature and extent of any current stomach disability. The examiner should express an opinion as to whether it is at least as likely as not that any current stomach disability is related to a symptoms, disease, or injury in service. The examiner should provide a rationale for any opinion. provided. The examiner should also review the claims folder prior to completing the examination. 3. Thereafter, the RO should ensure that all of the requested development has been completed, and that the examiner has provided the requested opinions. The RO should then readjudicate the claim. If the benefit remains denied, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond. - 11 - Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is advised that the requested examination is necessary to adjudicate his claim and that his failure, without good cause, to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals - 12 -