Citation Nr: 0004539 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-08 828 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous stomach, now claimed as irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from September 1954 to May 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the RO that denied an application to reopen a previously denied claim of service connection for a nervous stomach. By a February 6, 1996, rating action, the RO denied the veteran's claim of service connection for a nervous stomach. On February 13, 1996, the RO notified the veteran of that decision, but he did not initiate an appeal within the one- year period allowed and, as a result, the denial became final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has made it clear that the Board has a duty to address the new and material evidence issue regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167 (1996). Consequently, the decision that follows begins with a determination on the question of whether the previously denied claim should be reopened. FINDINGS OF FACT 1. Service connection for a nervous stomach was denied by the RO on February 6, 1996. The veteran was notified of the denial on February 13, 1996, but he did not initiate an appeal of the denial. 2. Certain evidence received since the February 1996 denial bears directly and substantially upon the issue at hand and is so significant that it must be considered to decide fairly the merits of the veteran's claim. 3. A nervous stomach, claimed as IBS, did not have its onset during military service or until several years after the veteran's separation from service; it is not otherwise attributable to the veteran's period of military service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of service connection for a nervous stomach has been submitted. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. Service connection for a nervous stomach, claimed as IBS, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's current claim of service connection for a nervous stomach claimed as IBS is not his first such claim. Service connection for a nervous stomach was denied by a February 6, 1996, RO decision. The veteran was notified of the denial by letter of February 13, 1996, but did not initiate an appeal within the one-year period allowed and, as a result, the denial became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1995). As a result, the Board may now consider the veteran's claim of service connection on the merits only if "new and material evidence" has been presented or secured since the February 1996 denial. 38 U.S.C.A. § 5108 (West 1991); Manio v. Derwinski, 1 Vet. App. 144, 145-46 (1991). (For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).) The regulations define new and material evidence as follows: 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) (1999). In addressing whether new and material evidence has been presented, the Board initially notes that a previously used test for "materiality" adopted by the Court in the case of Colvin v. Derwinski, 1 Vet. App. 171 (1991) was recently invalidated. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the United States Court of Appeals for the Federal Circuit indicated that the Colvin test for "materiality" made it more difficult for claimants to submit new and material evidence than did the test found in 38 C.F.R. § 3.156, and thus the Court overruled Colvin in this respect. Therefore, the ruling in Hodge must be considered as easing the appellant's evidentiary burden when seeking to reopen a previously and finally denied claim. Hodge, supra. The Court in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), held that Hodge requires the replacement of a two-step approach to handling applications to reopen as outlined in Manio v. Derwinski with a three-step approach. See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). Under this three-step approach, the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, the Secretary must determine whether, based upon all of the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). Third, if the claim is well grounded, then the Secretary may proceed to evaluate the merits of the claim, but only after ensuring the duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Elkins, supra. The Board has reviewed the entire record, particularly evidence associated with the claims folder since the February 1996 RO denial, and finds that new and material evidence has indeed been presented. The evidence available at the time of the February 1996 denial included an illegible copy of the veteran's enlistment examination report, dental records, and an April 1958 separation examination report. These records are negative for any complaints of, treatment for, or diagnoses suggesting any stomach disability. The veteran submitted his application to reopen his claim of service connection for a nervous stomach on February 28, 1997. The additional evidence received since the February 1996 RO denial includes numerous lay statements from family members and a co-worker, attesting to his stomach symptoms and problems during and since service. These lay statements collectively indicate that the veteran had complained about and was treated for his stomach during service, and that he had received treatment shortly after he was discharged from service. In addition, voluminous private and VA treatment reports, dated from February 1981 to December 1997, show that the veteran had received treatment for various medical illnesses including gastrointestinal problems such as radiation proctitis and irritable bowel disease. What is different about the newly received evidence is that it now includes a VA diagnosis of irritable bowel disease and private treatment records reflecting treatment for such disability. This evidence is new and material as defined by 38 C.F.R. § 3.156(a). It short, it tends to support the veteran's claim in a manner different from the evidence previously of record. Consequently, these treatment records bear directly and substantially upon the issue at hand, and are neither duplicative nor cumulative, and are so significant that they must be considered in order to decide fairly the merits of the underlying claim. 38 C.F.R. § 3.156(a). In other words, the VA treatment reports tend to provide probative information beyond what was known previously. Accordingly, the Board concludes that the veteran has submitted new and material evidence. Given that new and material evidence has been presented under 38 C.F.R. § 3.156(a), the Board must now determine whether the claim of service connection for a nervous stomach claimed as IBS is well grounded. Elkins, supra. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits 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. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The Court has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); 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 at 1468. The veteran claims that he has a nervous stomach, claimed as IBS, which began during service. He maintains that he has consistently suffered from IBS-related symptoms, such as diarrhea, since his separation from service. In support of his claim, lay statements have been received from a co-worker and family members, including a sister, who is registered nurse, to the effect that he has suffered from IBS since service. Initially, the Board notes that a majority of the veteran's service medical records are not available. The Court has held that where "service medical records are presumed destroyed . . . the BVA's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA also has a heightened duty to assist the veteran in the development of evidence favorable to his claim. Nevertheless, the absence of service medical records does not lower the legal standard for proving a service connection claim. Rather, it increases the Board's duty to consider the evidence (and the benefit-of-the-doubt rule, if applicable). The record includes an illegible enlistment examination report, dental records, and a May 1958 separation examination report, but these records are negative for any complaint of, treatment for, or diagnoses suggesting any stomach disability. Because a majority of the veteran's service medical records are missing, the Board will assume that the veteran had stomach complaints in service, just as he had stated. Nevertheless, the veteran must still present competent medical evidence of both currently disability and relationship between that disability and service. Private treatment reports mainly from Geisinger Medical Center, dated from February 1981 to December 1997, show that in May 1996, the veteran was consulted for chronic diarrhea. It was noted that, approximately seven years earlier, the veteran underwent a flexible sigmoidoscopy due to symptoms of IBS. The physician opined that there was a history of rectal urgency that occurred after receiving radiation therapy. It was suspected that the veteran had radiation proctitis. A differential diagnosis included inflammatory bowel disease, lactose intolerance. A June 1996 examination report shows that the veteran's diarrhea and rectal bleeding were suspected to be the result of radiation proctitis. The physician opined that the differential diagnosis included a distal colonic neoplastic lesion, inflammatory bowel disease. A July 1996 hospital discharge summary includes diagnoses of diarrhea and rectal bleeding secondary to radiation proctitis. In August 1996, it was noted that the veteran had a history of IBS, which caused intermittent loose stools, but that the veteran's diarrhea worsened after he started receiving radiation therapy. The physician opined that it was his impression that the veteran's diarrhea and rectal urgency were due to radiation proctitis, and that the physician did not believe that the veteran had inflammatory bowel disease. In September 1996, the impression was radiation proctitis. In October 1996, under the assessment/plan, the physician suspected radiation proctitis and possibly IBS. At an August 1997 VA examination, the veteran gave a history of diarrhea for 40 years. It was noted that, with extensive work up in the past, the veteran had a diagnosis of IBS. It was noted that the last evaluation included a colonoscopy that revealed radiation proctitis. The assessment was a long history of diarrhea, compatible with irritable bowel disease. A December 1997 VA outpatient treatment report shows that the physician concluded that the diagnosis was irritable bowel disease and radiation proctitis. The veteran submitted numerous lay statements from a co- worker and family members, in February 1997 and in September 1998, indicating that he had had stomach problems since discharge from service. One of the lay statements was from the veteran's sister, a registered nurse. She indicated that she remembered that the veteran had written her a letter, about eight months prior to separation from service, informing her that he was being treated for a stomach problem. The sister noted that, when the veteran returned home from service in May 1958, she had recommended several doctors and that the veteran had arranged to see them. She noted that, after several tests and taking medications, the doctors decided that the veteran had a stomach dysfunction and probably would have it for the rest of his life. She recalled that the veteran's symptoms were abdominal pain, diarrhea, constipation and gas, all caused by muscle spasms in the walls of his stomach and bowel. She noted that, years later, the new name for the veteran's stomach problem was IBS. She further noted that the veteran definitely started having IBS while in service. At a teleconference hearing in January 1999, the veteran testified that he was treated during service for his stomach problems, which he described then as anxiety and a nervous stomach. He testified that he had had the problem when he underwent his separation examination but did not file a claim because he was going to be married shortly thereafter and did not want to be held over in service. He also indicated that, after service, four different physicians treated him for his stomach; however, these doctors were either deceased or could not be located. He testified that he had had prostrate cancer, and that the radiation treatment more or less doubled his stomach problem. In September 1999, a July 1998 Social Security Administration (SSA) decision was received. SSA determined that the veteran had the following severe impairments: left medial epicondylitis, cervical spine degenerative disc distress, prostrate cancer, gout, hypertension, and right eye blindness. Among the evidence received from SSA was the veteran's Title II application, filed in November 1996. In his claim, the veteran provided a very detailed list of all his treating physicians since April 1981, when he underwent open heart surgery bypass. The veteran indicated that he had first received treatment for gastrointestinal problems in May 1996, when he listed the attending physician from Geisinger Medical Center. Private treatment records associated with the SSA decision includes correspondence from private physicians in May 1992 and November 1993, which shows that the veteran had undergone coronary artery bypass surgery in 1981. In December 1994, the veteran completed radiotherapy treatment in the management of adenocarcinoma of the prostate, which he had undergone since October 1994. It was noted that he had tolerated the treatments quite well with the expected reactions of mild loose bowel movements and fatigue. In a September 1996 patient questionnaire, the veteran reported significant medical problems due to heart/valve implant, hypertension, and gout; he did not mention any gastrointestinal problems. In July 1997, the veteran reported that he had intermittent loose bowel movements. In September 1997, the veteran denied any bowel or bladder control dysfunction problems. Based on a review of the record, the Board finds that the veteran's claim is well grounded. The veteran's testimony, combined with evidence of current disability, and numerous lay statements including his sister as to the continuity of observable symptoms, is in the Board's view, sufficient to make "plausible" the claim of service connection for a stomach disability claimed as IBS. 38 U.S.C.A. § 5107(a) (West 1991); Savage v. Gober, 10 Vet. App. 489 (1997). The Board, however, finds that the preponderance of the evidence is against the veteran's claim. Although the veteran's sister is a registered nurse, and is therefore competent to provide opinions relative to matters within her area of training and expertise, the Board finds that her statements pertaining to the veteran's IBS are outweighed by other medical evidence of record. As noted above, private physicians have offered opinions regarding the etiology of the veteran's stomach disability, but there is no indication that any of them have related such disability to service. Indeed, the salient point to be made is that these examiners have attributed the veteran's diarrhea to radiation proctitis or irritable bowel disease, neither of which have been attributed to the veteran's period of military service. As these physicians have treated the veteran, and detailed the rationale underlying their conclusions, these opinions are entitled to significant probative weight. Additionally, the Board gives significant weight to the fact that IBS was not diagnosed until many years after the veteran's separation from service. Although the veteran's sister has provided an etiological opinion, in order for her opinion to be given probative value beyond that of a lay person's, there must be evidence of actual expertise with respect to the pertinent subject matter, and evidence that she actually participated in the treatment of the subject disability. Black v. Brown, 10 Vet. App. 279, 284 (1997) (opinion of the veteran's wife, a registered nurse, was not a qualified opinion when there was no evidence that she had special knowledge of cardiology and that she participated in the veteran's treatment). Here, the record does not show that the veteran's sister, while medically trained, has any expertise or special knowledge in the area of gastroenterology sufficient to establish the expertise to diagnosis IBS or provide a medical nexus opinion. Moreover, the record does not show that she actually participated in the treatment of IBS other than recommending physicians to the veteran. For all of these reasons, the Board finds that the sister's statement is outweighed by other evidentiary points made in the record, including the absence of a diagnosis for so many years after service. The points made in extensive treatment records prepared since 1981, the comprehensive nature of the reports from private physicians documenting the veteran's illnesses since 1981, the 38-year gap between the veteran's separation from service until there is medical evidence of gastrointestinal problems, and the veteran's own reported history as documented in his claim for SSA benefits in 1996, lead the Board to conclude that the evidence against the claim outweighs the evidence favoring the veteran's claim. The Board has taken into consideration the veteran's numerous written statements, RO testimony, and lay statements, indicating that the veteran's stomach disability claimed as IBS is directly due to his period of military service. While they are competent to provide information regarding the symptoms he currently experiences and has experienced since his separation from military service, there is no indication that they are competent to diagnose a gastrointestinal disability or to comment upon its etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu, 2 Vet. App. at 495. In light of the foregoing, it is the Board's conclusion that the greater weight of the evidence is against the claim of entitlement to service connection for a nervous stomach claimed as IBS. Although some of the evidence appears to support the veteran's assertion that there may be a relationship between his current stomach/IBS disability and those he claims to have experienced in service, for the reasons set out above, the preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). ORDER Service connection for a nervous stomach claimed as IBS is denied. MARK F. HALSEY Member, Board of Veterans' Appeals