BVA9508153 DOCKET NO. 93-15 131 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the April 5, 1982, rating decision, in view of the denial of entitlement to service connection for duodenal ulcer, constituted clear and unmistakable error. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for duodenal ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1960 to October 1962. The claims file contains a report of a rating decision dated in April 1982 denying, in relevant part, entitlement to service connection for duodenal ulcer. The veteran was notified of the above determination and of his right to appeal by letter dated in April 1982. The veteran did not file a notice of disagreement with the above determination. The current appeal arose from a March 1991 ration decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO continued the prior denial of entitlement to service connection for duodenal ulcer. The case has been forwarded to the Board of Veterans Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed clear and unmistakable error in its April 5, 1982, rating decision by denying entitlement to service connection for his duodenal ulcer. He argues that he was found to have a duodenal ulcer only 15 days after the one year period following service. The appellant states that a duodenal ulcer could not possibly have developed during so short a period of time. He argues that he was treated for his ulcer at a private hospital emergency room in Nacogdaches, Texas, soon after service, but efforts to obtain such treatment reports have been unsuccessful because the hospital no longer exists. 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 the preponderance of evidence is against findings that the RO committed clear and unmistakable error in its April 4, 1982, rating decision, when it denied entitlement to service connection for duodenal ulcer; or that new and material evidence has been submitted to reopen a claim of entitlement to service connection for duodenal ulcer. FINDINGS OF FACT 1. The service medical records show that the veteran was treated for epigastric pain in January 1961, was not found to have any gastrointestinal abnormalities and denied a history of gastrointestinal symptomatology when examined for separation from service in October 1962. 2. The April 5, 1982 rating decision wherein the RO denied entitlement to service connection for duodenal ulcer on the basis of none being shown by the evidence of record constituted a reasonable exercise of rating judgment based on the evidence then of record. 3. The veteran did not appeal the April 5, 1982, rating decision of the RO. 4. Additional evidence submitted since the April 5, 1982, rating decision consists of later dated VA records showing a history of treatment for gastrointestinal symptomatology, and correspondence from a private physician noting treatment of the veteran for gastrointestinal symptomatology diagnosed as an ulcer more than one year after service. 5. The additional evidence submitted since the April 5, 1982, rating decision, when viewed in light of all the evidence of record, does not raise a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. The RO, in issuing the April 5, 1982, rating decision, wherein it denied entitlement to service connection for duodenal ulcer, did not commit clear and unmistakable error. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), 3.307, 3.309 (1994). 2. The rating decision of the RO in April 1982, denying the veteran's claim of entitlement to service connection for duodenal ulcer, is final. 38 U.S.C.A. §§ 5107, 7105; 38 C.F.R. § 3.104(a). 3. Evidence received since the RO denied entitlement to service connection for duodenal ulcer is not new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether the April 5, 1982, rating decision, in view of the denial of entitlement to service connection for duodenal ulcer, constituted clear and unmistakable error. The Board initially notes that the unappealed rating decision of April 5, 1982, is final in the absence of clear and unmistakable error and would serve as a bar for a grant of entitlement to service connection for duodenal ulcer in the absence of new and material evidence sufficient to reopen the claim. In determining whether there was clear and unmistakable error in this decision, it is not sufficient that the Board would have decided the case differently; rather, it must be shown that there was no reasonable basis for the conclusions reached in the decision. In this regard it is necessary for the Board to evaluate the evidence reviewed by the RO in reaching the April 5, 1982, rating decision. In so doing, the Board finds service medical records showed that in January 1961, the veteran was treated for pain in the epigastrium two hours before eating which was relieved by eating. A physical examination was negative for any abnormalities. The examiner noted a possible ulcer history. When examined for separation from service in October 1962, the veteran denied a history of gastrointestinal symptomatology. The general medical examination for separation from service was negative for any gastrointestinal abnormalities. Additional evidence of record prior to the April 5, 1982, rating decision by the RO consisted of a VA hospital discharge summary pertaining to treatment of the veteran in September 1976. A physical examination disclosed the abdomen was tender to palpation in the right upper quadrant and epigastric region. The liver appeared slightly enlarged about 2 or 3 centimeters below the right costal margin. The purpose of the hospitalization was detoxification of the appellant for acute and chronic alcoholism. It was on the basis of the above discussed evidence that the RO determined entitlement to service connection for duodenal ulcer was not warranted. The Board finds that the RO exercised reasonable rating judgment in reaching its determination. Duodenal ulcer was neither shown in service or post service. There existed no basis upon which to predicate a favorable determination as duodenal ulcer was not shown to exist. It well to note at this time that when the veteran was separated from service he denied a history of any gastrointestinal symptomatology No gastrointestinal complaints were expressed at separation from service and no gastrointestinal abnormalities were found. The evidentiary record does not show manifestations of ulcer disease during the first post service year to warrant a grant of service connection on a presumptive basis. In other words, the appellant was not having symptoms of ulcer disease let alone ulcer disease that was mild with recurring symptoms once or twice yearly during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1155, 5107 (West 1991); 38 C.F.R. 3.307, 3.309, 4.114, Diagnostic Code 7305 (1994). The veteran has contended on appeal that he was treated shortly after separation from service in a private hospital emergency room in Nacogdaches, Texas; however, those records are no longer obtainable as the subject hospital was torn down. The Board observes that the veteran did not claim treatment at such an institution when he filed his original claim for compensation for duodenal ulcer in 1982. At that time he submitted a statement showing treatment at private medical centers several years after service which would not have supported his claim for service connection on a presumptive basis. He did note that he was treated during the first post service year in 1963 by one J. Carroll Clement, M.D., whose statements are on file and discussed below. It is interesting to note that Dr. Clement's correspondence does not show the veteran reported a history of chronic gastrointestinal symptomatology dating back to the presumptive period. Dr. Clement's correspondence only notes treatment for gastrointestinal symptomatology in October 1963. For purposes of service connection on a presumptive basis, a duodenal ulcer must be not only present but also must be manifested to a degree of 10 percent during the one year period following release from service. What this means is that the ulcer could have been present but it was not symptomatic. It is the judgment of the Board that the April 5, 1982, rating decision whereby the RO denied entitlement to service connection for duodenal ulcer did not constitute clear and unmistakable error. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107, 7105; 38 C.F.R. §§ 3.104(a), 3.105(a), 3.307, 3.309. II. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for duodenal ulcer. The Board notes that the veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist the appellant as mandated by 38 U.S.C.A. § 5107(a). The evidence which was of record at the time of the RO's April 1982 rating decision will be summarized below. As the Board noted earlier, the veteran was treated in January 1961 for epigastric pain two hours before eating. Such pain was relieved by eating and it was noted there was a possible ulcer history. No gastrointestinal abnormalities were found on the separation examination at which time the veteran denied a history of gastrointestinal problems. When hospitalized in 1976 by VA for detoxification due to acute and chronic alcoholism, the veteran's abdomen was found to be tender to palpation in the right upper quadrant and epigastric region. The liver also appeared slightly enlarged. The additional evidence which has been submitted since the April 1982 rating decision will be summarized below. When hospitalized by VA in February 1983 for continuous alcohol abuse, the veteran reported a history of pancreatitis and stomach surgery for treatment of his ulcers. A June 1986 VA hospital discharge summary noted an abdominal surgical scar. An old operative scar in the epigastrium from a previous total gastrectomy for ulcer was noted when the appellant was hospitalized by VA during September and October 1990 for treatment of alcohol withdrawal syndrome. Status post subtotal gastrectomy with Billroth II anastomosis in 1969 was noted as a discharge diagnosis when the veteran was hospitalized by VA for treatment of alcohol dependence from late 1990 to early 1991. During the current admission he expressed gastrointestinal complaints. His gastrointestinal complaints were worked up with x-ray and esophagoduodenoscopy which revealed a bile reflux esophagitis and a bile reflux gastritis. In a February 1991 letter, J. Carroll Clement, M.D., advised he had copied clinical entries from his medical treatment reports as follows: "31 Oct.-1963, 'Thinks he has ulcer, medication started'." "1-6-64. X-ray ulcer, 'penetrating type ulcer base, cap pyloric canal'." Submitted in May 1991 were copies of a private hospitalization of the appellant during September and October 1990, showing the veteran underwent a subtotal gastrectomy for duodenal ulcer. In his September 1992 letter, Dr. Clement advised that he saw the veteran for treatment of a peptic ulcer on October 31, 1963, and started medication. He noted that ulcers did not develop overnight. In his opinion the veteran had had trouble with his ulcer for two or three years. Dr. Clement provided no basis for his opinion. He cited no symptoms in his medical records. After a review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the RO's previous decision in April 1982 denying entitlement to service connection for duodenal ulcer remains final. "New and material evidence" means "evidence not previously submitted...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). The additional evidence constituting additional VA hospital treatment reports and correspondence from a private physician are in part new in the sense that they are not cumulative of prior evidence already of record. In this regard, the Board notes that radiographic evidence of a peptic ulcer was initially reported in January 1964. Complaints of symptomatology relating thereto and eventually found to be reflective of peptic ulcer disease were initially reported approximately two weeks subsequent to the one year period following separation from active service. Actual surgery for peptic ulcer disease did not take place until 1969. It is interesting to note the veteran's private physician has expressed the opinion that peptic ulcer initially seen on x-ray more than one year following service had to have been in existence two or three years prior to actual diagnosis. The opinion is not supported by the evidence of record. In this regard, the Board observes that the veteran had been separated from service for little more than a year prior to seeking medical treatment for gastrointestinal symptomatology. When the veteran was separated from service he denied a history of any gastrointestinal symptomatology. No gastrointestinal complaints were expressed at separation from service and no gastrointestinal abnormalities were found. The additional evidence associated with the claims file subsequent to the April 1982 rating decision by the RO denying entitlement to service connection for duodenal ulcer taken collectively is not "material" because there is no reasonable possibility that when it is considered in the context of all the evidence, both new and old, it would change the outcome of the April 1982 rating decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board observes that the additional evidence has in effect reinforced the previous evidence of record by showing that the veteran does not currently have duodenal ulcer which was incurred in or aggravated by active service, nor disabling to a compensable degree during the first post service year. The additional evidence in no way refutes the RO's conclusion in April 1982 that service connection is not warranted for duodenal ulcer. ORDER The claim that the RO's rating decision of April 1982 denying entitlement to service connection for duodenal ulcer constituted clear and unmistakable error is denied. New and material evidence not having been submitted to reopen a claim of entitlement to service connection for duodenal ulcer, the benefit requested on appeal is denied. BRUCE KANNEE 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.