BVA9500968 DOCKET NO. 93-02 957 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a stomach disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for chest pain. 4. Entitlement to service connection for residuals of eye burns. 5. Entitlement to an increased (compensable) rating for hemorrhoids. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD B. Anderson, Counsel INTRODUCTION The appellant had verified active service from February 1942 to November 1945 and from December 1945 to January 1958. This appeal arises from a March 1992 rating decision of the Winston-Salem, North Carolina, Regional Office (RO). In that decision, entitlement to service connection for a stomach disorder, chest pain, hypertension and residuals of eye burns, and entitlement to a compensable evaluation for residuals of hemorrhoidectomy were denied. CONTENTIONS OF APPELLANT ON APPEAL The appellant's primary argument is that all disabilities at issue were documented in his active duty medical records and that service connection should be granted for the claimed conditions. In addition, he believes that a higher, compensable rating should be granted for his hemorrhoids due to the fact that he always has to purchase medications from local drug stores for treatment of this condition. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for a stomach disability and hypertension and against the claim for a compensable rating for residuals of hemorrhoidectomy. Also, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for service connection for chest pain and residuals of eye burns are well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. Service connection for a gastric ulcer was denied by a rating decision in May 1946; a written notice to the appellant that service connection had been denied for "stomach trouble" was sent to the appellant that month. 3. Service connection for disease of the stomach was denied by a rating decision in January 1963; written notification was sent to the appellant that month. 4. The 1946 and 1963 rating decisions were not appealed. 5. The appellant requested that the claim for service connection for a stomach disorder be reopened in February 1992. 6. Additional evidence since received, when viewed in the context of all of the evidence, does not present a reasonable possibility of changing the outcome. 7. The service medical records show no recorded complaints, clinical findings, diagnosis, or treatment of hypertension, chest pain or eye burns. 8. An elevated blood pressure reading, 152/90, was first manifested in April 1989; intermittently elevated blood pressure readings have been since recorded. 9. A disability of chest pain or residuals of eye burns is not documented in the evidence of record. 10. The current presence of hemorrhoids is not clinically documented. CONCLUSIONS OF LAW 1. Evidence received since the rating decision of January 1963 denied service connection for stomach disease is not material, and the appellant's claim for service connection is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. Hypertension was not incurred or aggravated in the appellant's service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). 3. The appellant has not submitted evidence of well-grounded claims to establish service connection for chest pain and residuals of eye burns. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a compensable evaluation for residuals of hemorrhoidectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4 and Diagnostic Code 7336 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant has presented claims to establish service connection for a stomach disability and hypertension and a claim to establish entitlement to a compensable evaluation for residuals of hemorrhoidectomy which are plausible. The Board is satisfied that all relevant facts have been properly developed. There is no indication that there are additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with their duty to assist mandated by 38 U.S.C.A. § 5107. I. Stomach Disability Service connection for a gastric ulcer was denied by a rating decision dated in May 1946, and service connection for disease of the stomach was denied by a rating decision dated in January 1963. The appellant was notified in writing on each occasion, but he did not appeal the determinations. In February 1992, he requested that the claim be reopened. Since the claim had been denied previously, the Board must consider whether new and material evidence has been presented to reopen the claim. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. "New and material evidence" means evidence not previously submitted to agency decisionmakers 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). Evidence added to the record since 1963 includes multiple reports of examination and treatment of the appellant by the Department of Veterans Affairs (VA) on an inpatient and outpatient basis. These records essentially date from 1977 to recent times. In general, these records indicate that the appellant had a problem with alcoholic liver cirrhosis in 1977, underwent surgery for renal cell carcinoma in 1978, had evidence of viral gastroenteritis on an outpatient basis in 1983, and was treated for upper gastrointestinal bleeding, probably related to aspirin use, and was noted to have a small sliding, hiatal hernia in 1981. A chronic stomach disability per se was not documented and, in any event, the additional evidence does not relate to the appellant's active service which terminated in 1958. It is our judgment that the additional evidence is not material; when viewed in the context of all of the evidence, it does not present a reasonable possibility that it could change the outcome by providing a basis for service-connecting a stomach disability. The pertinent evidence still shows that a suspected gastric ulcer in service was ruled out by the service department in 1944, that the appellant had a single episode of indigestion in 1955, and that no chronic stomach disability was thereafter documented or was present at the time of service discharge examination in December 1957. Consequently, the prior denial decisions remain final and the claim is not reopened. II. Hypertension The appellant claims that hypertension was documented in his active duty medical records. The law provides that service connection may be granted for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110 and 1131. Where a veteran served ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The service medical records show that all recorded blood pressure readings were within normal limits and that the appellant's sitting blood pressure was 112/70 at the time of his final service discharge examination. His blood pressure was 110/76 on initial examination by VA in November 1962. Ensuing blood pressure readings as recorded primarily on outpatient clinic visits throughout the 1970's and most of the 1980's were within normal limits. A blood pressure reading of 152/90 was recorded in April 1989. Subsequent blood pressure readings had been only intermittently elevated. Even assuming that essential hypertension has been diagnosed and that the earliest manifestation thereof was noted in 1989, it must be concluded that essential hypertension was not present during the appellant's active service or manifested to a compensable degree within one year thereafter. III. Chest Pain and Eye Burns The appellant asserts that chest pain and residuals of eye burns were documented in his active duty medical records. This is incorrect as there is no reference to these disorders in the service medical records. The threshold question to be answered is whether the appellant has presented evidence of well-grounded claims; that is, ones which are plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Grivois v. Brown, 6 Vet.App. 136, 140 (1994). The service medical records show no recorded complaints, clinical findings, diagnosis, or treatment of chest pain or residuals of eye burns. The post service evidence indicates that the appellant underwent extraction of a left eye cataract in April 1977, but there is no documentation of any residuals of eye burns. Moreover, there is no documentation that the appellant has a disability manifested by chest pain. Consequently, it must be concluded that the appellant has not met the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a). IV. Hemorrhoidectomy Residuals Excision of hemorrhoids was accomplished by the service department in 1952. A history of hemorrhoidectomy was noted at the time of the appellant's service discharge examination in December 1957, however, no hemorrhoids or residuals were clinically noted on examination. On examination by VA in November 1962, the appellant stated that he still had some protrusion of hemorrhoids periodically and some bleeding if he allowed himself to become constipated. Examination of his rectum revealed no evidence of external hemorrhoids, but there appeared to be some mild internal hemorrhoids which had a tendency to protrude. There was no evidence of bleeding at that time. The diagnosis was mild internal hemorrhoids, symptomatic at times. A record of the prior hemorrhoidectomy was noted on examination of the appellant by VA in January 1963. Hemorrhoids were not noted to be present. In his statement in support of claim for a compensable rating for service-connected hemorrhoidectomy residuals, the appellant stated that he had been receiving "constant" medical care from a VA medical facility for this condition, and requested that outpatient medical records for the year 1991 be used in support of the claim. The RO obtained the VA outpatient clinic records dated in 1990 and 1991. These records show that the appellant underwent rectal and prostate examination in May 1990 and again in May 1991. The examinations were within normal limits. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A noncompensable evaluation is warranted for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. Diagnostic Code 7336. Clearly, the postoperative residuals are not nearly so symptomatic as to meet the criteria for a compensable evaluation. ORDER Service connection for a stomach disability is denied. Service connection for hypertension is denied. The appeal of the denial of service connection for chest pain and the residuals of eye burns is dismissed. A compensable rating for residuals of hemorrhoidectomy is denied. LAWRENCE M. SULLIVAN 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.