BVA9500200 DOCKET NO. 90-48 667 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an umbilical hernia. REPRESENTATION Appellant represented by: Larry B. Minton, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had active service from August 1954 to March 1960. This appeal has a long procedural history. The veteran first claimed entitlement to service connection for an umbilical hernia in April 1960. In an October 1960 rating decision, the Shreveport, Louisiana, regional office (RO), denied entitlement to service connection for an umbilical hernia. The RO provided the veteran with written notice of that decision, and of his rights to appeal, in November 1960. The veteran did not appeal. In February 1989, the veteran asked to be evaluated for service connection for a rupture in the navel area in service. The present appeal arises from the November 1989 rating decision of the RO, which by that time the veteran had relocated to New Orleans, Louisiana. In that decision, the RO found that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for an umbilical hernia. The veteran appealed that decision to the Board of Veterans' Appeals (Board). In March 1991, the Board issued a decision that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for an umbilical hernia. In the same decision, the Board denied the veteran's claims on two other issues on appeal, entitlement to service connection for a psychiatric disorder, and entitlement to service connection for a ventral hernia. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (Court). In July 1992, the Court remanded the Board's denial of service connection for an umbilical hernia for consideration consistent with the Court's decision in Manio v. Derwinski, 1 Vet.App. 140 (1991), requiring that all of the evidence, both old and new, be considered in determining whether new and material evidence has been submitted to reopen a previously denied claim. In the same decision, the Court affirmed the Board's denials of service connection for a psychiatric disorder and a ventral hernia. In a February 1993 decision, the Board found that new and material evidence had been submitted to reopen the claim for service connection for an umbilical hernia. The Board then considered the reopened claim on its merits, and denied entitlement to service connection. In a November 1993 order, the Court vacated the Board's February 1993 decision, and granted a joint motion for remand. Subsequent to the Court's November 1993 remand, the veteran's representative submitted an affidavit, dated in February 1994, from [redacted], who reported that he had served with the veteran. In April 1994, the Board remanded the case to the RO for review of the affidavit of Mr. [redacted], and consideration of the claim in light of all of the evidence. In August 1994, the RO issued a rating decision. The RO's decision and September 1994 Supplemental Statement of the Case noted the [redacted] affidavit, but the RO confirmed the earlier denial of the claim. The case was returned to Board and is now before us for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence sufficient to reopen his claim for entitlement to service connection for an umbilical hernia. He contends that an umbilical hernia was incurred in service. He states that in service, when he was lifting and loading containers of wine, he felt a stinging sensation in his abdomen. He asserts that he later noticed that his navel had changed in appearance. He reports that he did not seek medical attention for this in service. He also reports that he did not have a physical examination at the time of his separation from service. He states that a hernia was diagnosed shortly after his separation from service, in a physical examination performed for a prospective employer. 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 files. 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 has been submitted to reopen a claim of entitlement to service connection for an umbilical hernia, and that the preponderance of evidence is against the claim for entitlement to service connection for an umbilical hernia. FINDINGS OF FACT 1. In an unappealed October 1960 rating decision, the RO denied entitlement to service connection for an umbilical hernia. 2. Testimony regarding the onset of an umbilical hernia has been submitted since the October 1960 rating decision. 3. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 4. Physical examination prior to separation from service did not reveal an umbilical hernia. 5. An umbilical hernia diagnosed after separation from service was not related to any incident of service. CONCLUSIONS OF LAW 1. The October 1960 rating decision denying service connection for an umbilical hernia is final. 38 U.S.C.A. § 7105 (West 1991). 2. Evidence pertaining to an umbilical hernia received since an October 1960 rating decision is new and material; the claim for service connection for an umbilical hernia is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 3. An umbilical hernia was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Previous Final Decision As noted above, an October 1960 rating decision denied entitlement to service connection for an umbilical hernia. The RO provided the veteran with written notice of that decision, and of his rights to appeal, in November 1960. As no notice of disagreement was filed within one year of notice of the October 1960 rating decision, that decision became final. 38 U.S.C.A. § 7105 (West 1991). II. New and Material Evidence A final decision on a disallowed claim shall be reopened if new and material evidence with respect to the claim is presented or secured. 38 U.S.C.A. § 5108 (West 1991). The United States Court of Veterans Appeals (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, and which is neither cumulative nor redundant. 38 C.F.R. § 3.156 (1993). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. See Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1992). New evidence is considered material when it is relevant and probative of the issue at hand. There must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). When determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial of the case on the merits, rather than only the evidence submitted since the most recent refusal to reopen the claim for lack of new and material evidence. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). The Court vacated the Board's February 1993 decision on the merits of the claim for service connection for an umbilical hernia; therefore, the last effective final denial of that issue on the merits was the RO's October 1960 rating decision. Therefore, we will consider whether new and material evidence has been submitted since the October 1960 rating decision. The evidence of record prior to the October 1960 rating decision included the veteran's April 1960 claim, his service medical records, an April 1960 report from a private physician, and a May 1960 statement from persons who knew the veteran. In his claim for VA disability compensation, the veteran wrote: I had been noticing a pain in my stomach for three or four years, especially when I would pick up something. I didn't think much about it because the pain was not severe enough to send me to sick call. After my discharge from the Air Force I went to a local physician, Dr. Harry M. Brian, to get a routine medical examination to apply for a job that had been promised me. The doctor's examination revealed that I have an umbilical hernia, and that it had been in existence for several months or longer. Dr. Brian said that the only way to correct the condition is by surgery. The veteran's service medical records include the reports of several medical examinations. The report of an August 1954 examination noted an appendectomy scar. The report of a September 1954 examination noted apparent shortening of the right leg, and no other defects. The report of an August 1957 examination did not note any defects, but listed a history of childhood mumps and chicken pox, an appendectomy in 1948, and a mole surgically removed from the right lower quadrant of the abdomen in 1948, with no complications and no sequelae. The report of a February 1960 examination noted a 3½ inch surgical scar in the right lower quadrant of the abdomen, described as well-healed and nonsymptomatic. The examination report stated that the veteran was being considered for action under AFR 39-17 due to being unfit for military service. The report also stated that there were no physical or mental defects found upon examination sufficient to warrant separation under the provisions of AFM 35-4. The remainder of the veteran's service medical records consisted of dental records and records of treatment for flu symptoms and other short term complaints. There is no record of treatment or complaints of a hernia, rupture, or abdominal strain. An April 1960 report from Harry M. Brian, M.D., certified that Dr. Brian had examined the veteran, and that during a routine physical he had discovered an umbilical hernia. Dr. Brian reported that surgery was required to correct the hernia. In May 1960, the RO received a statement signed by [redacted] and [redacted]. The [redacted]s wrote that they had known the veteran for about five years. They reported that they had heard him complain numerous times about a pain in his abdomen. They wrote that they did not know that he had a hernia until he went to Dr. Brian for a physical. They noted that the Air Force had given the veteran several physicals but had not found the hernia. They stated that they did not know exactly when the veteran was hurt, but that they did know that he had complained many times of pain in his abdomen. Several items of evidence have been added to the claims file since the October 1960 rating decision. Records of medical treatment of the veteran from 1981 forward were submitted. The veteran had a hearing on his appeal at the RO in June 1990. His testimony included his account of the claimed onset of his umbilical hernia in service, manifested by a stinging sensation in his belly when he was loading containers of wine, and by a change in the appearance of his navel. An affidavit, dated in February 1994, from [redacted], was also added to the claims file. Mr. [redacted] attested that he served with the veteran in the Air Force, and that he was working alongside the veteran when they were loading commodities onto airplanes, and when the veteran strained and injured himself while lifting and loading crates. At the time of the October 1960 rating decision, there was no medical finding of an umbilical hernia during service, and no evidence of record with regard to how the hernia found after service in April 1960 might have been incurred. The veteran's hearing testimony and the affidavit of Mr. [redacted] were presented as evidence that the hernia can be attributed to a particular occasion in service, when the veteran was loading containers of wine onto an airplane. This evidence is both new to the record, and material to the issue of whether an umbilical hernia was incurred in service. As new and material evidence has been submitted, the claim for service connection for an umbilical hernia is reopened, and will be reviewed on its merits. III. Service Connection for an Umbilical Hernia The Board notes that the veteran's claim for service connection for an umbilical hernia is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1993). The veteran does not contend that he had a preexisting hernia that was aggravated during service; and examination of the veteran at entrance into service did not reveal a hernia or other abdominal defects besides an appendectomy scar. In his April 1960 claim, the veteran reported that he had been having pain in his stomach for three or four years, especially when lifting objects. At that time, he did not attribute that pain or the hernia to any particular incident or injury in service. Many years later, in his 1990 hearing testimony, the veteran contended that on the day that he was departing from temporary duty in France, he was assigned to load bottles of champagne packed in aluminum and plywood containers. He reported that when he picked up one of the containers, he felt something sting in his belly. He also reported that he noticed that his navel looked different from before, "tucked out" instead of "tucked in." He stated that it had not looked that way before, and was not sore before. He reported that after that incident he served for about eighteen more months until he was separated from service. The credibility of the veteran's 1990 account of events in service is weakened by its inconsistency with his statements in 1960. In 1960, he reported some abdominal discomfort over a three or four year period, which would extend back to 1956 or 1957. He did not relate onset of the pain to any particular incident. In 1990, he remembered a particular event to which he attributed his umbilical hernia. He stated that the strain while loading wine occurred about eighteen months before his March 1960 separation from service, which would be the later part of 1958. Where accounts of events during service differ, it would be expected that the veteran's memory would be more accurate in 1960, soon after those events took place, than his recollections thirty years later. In his hearing testimony, the veteran acknowledged that he did not go to sick call after feeling the stinging sensation, or after noticing a change in the appearance of his navel. He reported that he did not seek medical attention for his abdomen or umbilical area at any time during the remainder of service, because he did not think that there was a problem with it. He reported that even after he was out of service, he was still lifting heavy objects, including picking up the front ends of automobiles with the motors in them. The lack of any mention of a hernia in the service medical records leaves a gap in objective evidence to support that a hernia was incurred in service. In his hearing, the veteran testified that he had not had a physical examination prior to separation from service, or at any other time in service except at induction in 1954. The service medical records, however, document two service examinations in 1954, one in 1957, and an examination in February 1960, a few weeks before the veteran's separation from service in March 1960. While the February 1960 examination report specifically noted a well-healed 3½ inch surgical scar in the right lower quadrant of the veteran's abdomen; the report did not mention an umbilical hernia or any disorder or complaint involving the umbilical area of the abdomen. Although the veteran testified that the incident involving lifting crates of wine occurred approximately eighteen months before his separation from service, the February 1960 examination report does not indicate that there was any evidence of an umbilical hernia a few weeks before separation. The report from Dr. Brian indicates that Dr. Brian diagnosed an umbilical hernia in April 1960. However, Dr. Brian's report did not address when the hernia was first manifested. As to the history of the condition, he wrote only, "Discovered during routine physical." In his hearing testimony, the veteran reported he did not have any problems with the umbilical hernia until he had surgery involving his gallbladder and pancreas, many years after service. The claims file contains medical records dated from 1981 to 1988 that documented surgery and other treatment for disorders of the gall bladder and pancreas. These records also reported that he had a small umbilical hernia in 1981 that was slightly tender but not protruding. In 1985 he had a surgical repair of a ventral hernia, and an incisional hernia was identified in 1988. These records show that the veteran underwent a number of abdominal surgeries many years after service, but they do not assist in establishing when the veteran's umbilical hernia first arose. The May 1960 statement from [redacted] and [redacted] provides evidence that the veteran had complained to others about pain in his abdomen. The [redacted]s stated that they did not know when the veteran was hurt, however, and that they did not know that the veteran had a hernia until Dr. Brian examined him. The [redacted]s' statement does not show that a hernia was present in service. [redacted] provided an affidavit in 1994. Mr. [redacted] stated that he worked alongside the veteran loading commodities into airplanes, both before and after the veteran was injured. He stated that the veteran strained and injured himself while lifting and loading crates onto an airplane. He stated that the veteran's ability to work was severely reduced after the strain and injury he sustained while lifting the crates onto the plane. Mr. [redacted]'s statement supports the veteran's 1990 account of injuring himself in service while lifting crates. Mr. [redacted] did not claim knowledge of the type or extent of injury that the veteran sustained. Mr. [redacted]'s statement that the veteran's ability to work was reduced after the injury differs from the veteran's account of events after the claimed strain from lifting. In his hearing, the veteran testified that during his remaining eighteen months in service, he did not think that the strain had resulted in any serious harm. When asked whether he continued to lift heavy objects during that period, he answered that he did so even after he was out of service. The veteran also stated that about two years before his separation from service, after being refused leave to attend his father's funeral, he decided not to continue performing his assigned tasks. Taking into consideration all of the evidence, both old and new, the preponderance of the evidence is against a finding that an umbilical hernia was present during service. The veteran and Mr. [redacted] both reported that the veteran experienced some type of strain when lifting crates, but there is no medical evidence that such a strain produced an umbilical hernia during service. An examination a few weeks before separation noted an abdominal surgical scar but did not note any other abdominal defects or complaints. An umbilical hernia was not shown by objective evidence until after the veteran's separation from service. We find that the evidence for and against the presence of an umbilical hernia during service is not so evenly balanced as to create a doubt as to that issue. 38 U.S.C.A. § 5107 (West 1991). As the preponderance of the evidence is against a finding that an umbilical hernia was incurred in service, service connection is denied. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for an umbilical hernia. Entitlement to service connection for an umbilical hernia is denied. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME 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.