BVA9505248 DOCKET NO. 93-11 076 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for the residuals of hepatitis. 2. Entitlement to service connection for heart disease secondary to hepatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from August 1942 to January 1946. In August 1965, the appellant filed a claim for service connection for jaundice. By rating decision dated October 1965, service connection for residuals of hepatitis was denied, and the appellant was notified of that decision in that same month. The appellant submitted additional evidence in January 1966. In a rating decision dated March 1966, which included review of all the evidence of record, service connection for hepatitis was denied. The appellant submitted a notice of disagreement and was provided with a Statement of the Case in May 1966. By rating decision dated January 1967, the March 1966 denial of service connection for hepatitis was confirmed. No substantive appeal was filed, and the March 1966 rating decision, the last decision on the merits, became final in March 1967. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the appellant's request to reopen a claim for service connection for residuals of hepatitis and denied service connection for heart disease. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his hepatitis, first incurred in service in 1945, is chronic. He further contends that hepatitis caused his heart disease. The appellant's representative contends that there is no objective medical evidence to support the RO's determination that the appellant's coronary artery disease is not secondary to acute hepatitis suffered in service. The representative further asserts that the appellant has not been afforded a VA examination in many years. 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 no new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis. It is also the decision of the Board that the appellant has not submitted a well-grounded claim of service connection for heart disease as secondary to service-connected hepatitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. The last final decision on the merits denying the appellant's claim of entitlement to service connection for the residuals of hepatitis was the rating decision issued in March 1966. That decision became final in March 1967 in the absence of timely perfection of the appeal. 3. The evidence associated with the file since the March 1966 decision shows that the appellant's liver function is normal, no abnormality of the liver has been noted on physical examination, the appellant has not been treated for hepatitis since 1965 and has not been diagnosed as having acute or chronic hepatitis since 1965, and the appellant is not currently being treated for a liver condition. This new evidence raises no reasonable possibility of changing the outcome of the case, since it establishes that the appellant has no current disability due to hepatitis incurred in service. 4. There is no medical evidence or opinion in any way relating the appellant's current heart condition to a history of hepatitis in service, and his claim that hepatitis incurred in service caused his heart disease is not plausible. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted since a March 1966 rating decision denying entitlement to service connection for residuals of hepatitis, and the claim is therefore not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for heart disease secondary to a liver condition. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The March 1966 rating decision denying the appellant's claim for service connection for hepatitis became final when the appellant failed to perfect a substantive appeal after filing a notice of disagreement and being provided with a Statement of the Case. 38 U.S.C.A. § 7105. However, if new and material evidence is presented or secured, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. In order to determine whether the appellant has submitted new and material evidence to reopen his claim for service connection for hepatitis, the Board has reviewed the evidence of record since the last final determination of the merits, a March 1966 rating decision. Glynn v. Brown, 6 Vet.App. 523 (1994). The credibility of the evidence submitted since the prior denial is presumed for the purposes of determining whether the claim may be reopened. Justus v. Principi, 3 Vet.App. 510 (1992). The appellant contends that he has chronic hepatitis as a result of suffering hepatitis during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. The appellant further contends that a chronic liver condition incurred in service has resulted in disabling heart disease. Disability which is proximately due to or the result of a service-connected condition is also service connected. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310(a) (1994). When a veteran seeks to reopen a final decision disallowing a claim, the Board conducts a two-step analysis to determine whether new and material evidence has been presented as defined in § 5108. See 38 C.F.R. §§ 3.104(a), 3.156(a) (1994); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance is new and material when viewed in the context of all the evidence, both old and new, presuming the credibility of the new evidence. Justus v. Principi, 3 Vet.App. 510, 513 (1992); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has been submitted, then the claim must be reopened and reconsidered based on all of the evidence, both old and new. However, if no new and material evidence is submitted, the claim is not reopened and no further analysis is required. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). "New" evidence is evidence which is not merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is relevant and probative of the issue at hand. Id. Evidence, in order to be new and material, must raise a reasonable possibility that when viewed in conjunction with all evidence, both old and new, the new evidence would change the outcome of review of the claim. Id. at 174. In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). This presumption is made only for the purpose of determining whether the case should be reopened. Id. The evidence of record at the time of the 1966 denial of service connection for hepatis consisted of service medical records from the appellant's 1942 to 1946 service, a separation examination dated January 1946, private clinical records of 1965 along with an August 1965 statement from T.H. Wortham, M.D., VA examinations conducted in August 1965 and in February 1966, and a statement from C. Yulan Washburn, M.D., dated January 1966. The service medical records show that the appellant was treated for acute infectious hepatitis in June and July 1945. His record noted no recurrence of hepatitis or of a liver condition. The appellant's 1945 treatment for "yellow jaundice" was noted on the separation examination performed in January 1946, but no abnormality was found on physical examination. The service medical records also reflect treatment for nasopharyngitis in 1943 and 1944 and for Vincent's angina in December 1943. Vincent's angina is a painful ulceration of the oropharynx and throat caused by acute necrotizing gingivitis, an infection due to Treponema vincentii, a spiral-shaped bacterium. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1836, 82, 1749 (27th ed. 1988). Private treatment records of 1965 show questionable jaundice in August, and a statement from Dr. Wortham in August 1965 refers to a recent episode of jaundice. In his January 1966 statement, Dr. Washburn indicated that he treated the appellant in 1965 for hepatitis, and that the appellant was jaundiced and his liver was enlarged, causing pain. On VA examination in August 1965, the examiner found no signs of jaundice or liver enlargement, and noted that the appellant's right upper quadrant tenderness was more typical of cholecystitis than of hepatitis. No abnormality of the liver was noted following laboratory testing of liver function. The appellant was examined again in February 1966. At that time, the examiner found some tenderness on palpation of the liver, but noted no signs of jaundice, and noted no abnormalities of the liver following laboratory tests of liver function. The examiner found no residuals of infectious hepatitis. Thus, the evidence of record at the time of the March 1966 denial of service connection for hepatitis consisted of a physician's statement that the appellant had been treated for hepatitis approximately 20 years after service discharge, with no evidence of chronicity or continuity of that condition since service, no notation of abnormality at service discharge, and two VA examinations with no findings of acute or chronic hepatitis or other liver condition. Evidence received since the 1966 rating decision denying service connection for hepatitis includes statements from Dr. Wortham in July 1966 referring to findings of slight jaundice in August 1965 and from Dr. Washburn in August 1966 referring to stomach sickness and vomiting in 1966, clinical records from hospitalizations twice in 1966 for anxiety reaction, from May to August 1967 for psychiatric complaints, from March to May 1968 and in February 1969 for hypertension, in August 1969 for nausea and vomiting, and in May 1990 for chest pain, and outpatient treatment records dated June 1966, 1977, 1978, and 1991, as well as records of VA examinations conducted in October 1966, July 1968, April 1969, and May 1975. This evidence is "new" in that it provides clinical information which has not been considered before. However, none of this evidence is "material" because it does not raise a reasonable possibility of changing the outcome of the decision on the claim. The new evidence, as a matter of fact, establishes that the appellant currently has no liver abnormality, either on physical or laboratory examination, and has no medically-diagnosed liver condition or disability. The appellant has not provided credible medical opinion that he has chronic hepatitis or residual disability due to a past history of hepatitis. The "new" evidence is not material because it does not create a reasonable possibility that the appellant has disability due to hepatitis incurred in service, and the claim cannot be reopened. Colvin v. Derwinski, 1 Vet.App. 171 (1991). A VA outpatient treatment record dated August 1991 clearly indicates that on that date the appellant first informed the physician who was treating him for heart disease about his history of hepatitis in the military. The physician found no hepatomegaly on physical exam and noted that liver function tests were within normal limits. The discharge summary from the appellant's May 1990 hospitalization reflects treatment for acute myocardial infarction, hypertension, and congestive heart failure. The discharge summary from that hospitalization reflects detailed physical examination, a brief stay in an intensive coronary care unit, and extensive diagnostic testing. No physical findings of liver abnormality, no abnormal results of laboratory tests reflecting definite liver dysfunction, and no diagnoses reflecting a liver condition or a liver disability are reported in the summary of that hospitalization. The medical evidence from 1966 to 1990 fails to disclose a credible diagnosis of hepatitis or of any other liver condition. Dr. Wortham and Dr. Washburn have referred to hepatitis and/or jaundice, but Dr. Wortham's July 1966 statement referring to jaundice in August 1965 is not confirmed by the actual clinical record of the date of treatment, which clinical record was before the RO at the time of the March 1966 decision. Dr Washburn's statement was equivocal concerning hepatitis, and neither physician included any laboratory studies indicating liver dysfunction. Further, liver function studies on VA hospitalization in 1967 and on several occasions thereafter were within normal limits. Hospitalization summaries from July 1968, February 1969, and August 1969, like the May 1990 hospitalization, reflect that the appellant received no treatment for hepatitis or a liver condition while hospitalized and no diagnoses of hepatitis or other liver conditions were noted. The August 1969 hospital summary specifically notes that the liver profile, among other laboratory diagnostic test results, was within normal limits. Similarly, VA examinations dated July 1968, April 1969, and May 1975, contain no abnormal findings related to the liver and do not reflect diagnosis of acute or chronic hepatitis. A letter submitted from J. Garrett Kinley, M.D., dated April 1975, indicates that the appellant was suffering from hypertension, arteriosclerotic heart disease with angina pectoris, and degenerative disc disease. Outpatient and home care records dated 1977 and 1978 describe disabilities due to numerous general medical conditions, but do not describe disability due to hepatitis or a past history of hepatitis and contain no notations that the appellant was treated for hepatitis or a liver condition. The appellant has presented no medical evidence establishing that he has a current disability due to hepatitis incurred in service. The appellant's allegation alone, without any medical evidence establishing that the appellant has a current disability due to a liver condition or medical evidence linking a current liver disability to hepatitis incurred in service, is not material evidence to allow his claim for service connection to be reopened. Because the appellant has failed to present any evidence of the medical diagnosis or disability on which he bases his claim, other than his own unsupported lay allegation, no duty to assist him to develop factual evidence to reopen his claim arises, and there is no duty to provide a VA examination. See Grottveit v. Brown, 5 Vet.App. 91 (1993); Gowen v. Derwinski, 3 Vet.App. 286 (1992). Because the appellant has failed to provide new and material evidence to reopen his claim of entitlement to service connection for hepatitis, his claim of entitlement to service connection for heart disease secondary to hepatitis is not well-grounded either as a matter of law or as a matter of fact. 38 C.F.R. § 3.310(a) provides that a disability which is proximately due to or the result of a service-connected condition is also service connected. However, the appellant has not been granted service- connection for hepatitis, so he is not, as a matter of law, entitled to service connection for heart disease on the basis that heart disease resulted from hepatitis, even if medical evidence were to establish that the appellant's heart disease resulted from hepatitis, as he contends. 38 C.F.R. § 3.310(a) (1994). The appellant has also failed to provide the minimum of evidence required for a well-grounded claim of entitlement to service connection for heart disease secondary to hepatitis. 38 U.S.C.A. § 5107; Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The appellant's contention that his heart disease was caused by hepatitis incurred in service is a question of medical etiology. Where the determinative issue involves medical etiology, competent medical evidence is required for a well-grounded claim. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit, 5 Vet.App. at 93. The appellant has presented no medical opinion suggesting that hepatitis was etiologically related to development of his heart disease. The appellant has presented no medical literature supporting the possibility of an etiologic relationship between hepatitis and later development of heart disease. The appellant has not submitted any other competent medical evidence supporting his contention as to the etiology of his heart disease. The medical evidence of record reflects that the appellant developed serious heart disability in the absence of any findings of acute or chronic hepatitis or residuals of hepatitis. Where the appellant has failed to submit any medical evidence supporting the alleged medical etiology, his claim of entitlement to service connection for heart disease resulting from hepatitis incurred in service is not well-grounded and must be dismissed. ORDER New and material evidence to reopen a claim of entitlement to service connection for the residuals of hepatitis has not been submitted. The claim is not reopened. The claim for entitlement to service connection for heart disease secondary to hepatitis is not well-grounded, and the claim is dismissed. 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.