BVA9506279 DOCKET NO. 93-10 869 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a stomach disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from October 1962 to October 1966. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claims of entitlement to service connection for skin and stomach disorders. He asserts that both of these disabilities began during his active military service and that he has continued to experience symptoms of the disorders since his separation from active duty. He further maintains that his present skin and stomach disorders are the result of the symptoms for which he was treated during service. Consequently, the veteran contends that he has submitted new and material evidence sufficient to reopen his claims of entitlement to service connection for skin and stomach disorders. 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 new and material evidence has been submitted to reopen the claims for service connection for skin and stomach disorders. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In a rating decision of October 1984, the RO denied the veteran's claims of entitlement to service connection for skin and stomach disorders; an appeal was not perfected. 3. The evidence submitted since the RO's 1984 decision, when viewed in the context of all of the evidence of record, relates to the question of continuity of symptomatology of the veteran's skin and stomach disorders since his separation from service and, thereby, raises a reasonable possibility of changing the outcome of the 1984 decision. CONCLUSIONS OF LAW 1. The decision of the RO in October 1984 denying the veteran's claims of entitlement to service connection for skin and stomach disorders is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1994). 2. Since the RO's October 1984 decision, new and material evidence has been received, and the veteran's claims of entitlement to service connection for skin and stomach disorders are reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board of Veterans' Appeals (Board) notes that the veteran's claims of entitlement to service connection for skin and stomach disorders are well-grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.159 (1994). In an October 1984 rating decision, the RO denied service connection for skin and stomach disorders. At the time of the 1984 decision, the RO reviewed the veteran's contentions as well as the service medical records and post-service VA outpatient treatment reports. In particular, the RO considered the veteran's contentions that he began having skin and stomach problems during service and that the skin and stomach trouble which he was experiencing at the time of the 1984 rating decision resulted from these in-service episodes. According to the service medical records, the enlistment examination was negative for any complaints of, treatment for, or findings of a skin or a stomach disorder. However, with regard to the veteran's stomach condition, in November 1962, approximately one month after his enlistment into active duty, he indicated that he had abdominal pain for approximately one year but that he had no abdominal pain at that time. The following day, the veteran sought treatment for complaints of pain in the upper right quadrant of the abdomen. Physical examination was negative. The veteran was treated in February 1964 for vague stomach pain after eating. No vomiting was noted, and the veteran's abdomen was found to be soft and to have no masses. The veteran claimed in May 1964 that military food made him sick to his stomach. In December 1964, the veteran again sought treatment for complaints of abdominal pain. The veteran was treated twice in January 1965 for complaints of right upper quadrant abdominal pain after eating or smelling food. No vomiting was noted on the examination report. Physical examination showed epigastric pain. The diagnosis was duodenitis. In the following month, the veteran was treated several times for continued pain. The veteran reported that the attacks of pain had no relation to time or meals and were not alleviated by medications. According to X-rays taken in February 1965, the veteran's upper gastrointestinal series was normal. His abdomen was found to be within normal limits, and he was given medication. In March 1965, the veteran requested and was given for three weeks separate rations because he did not want to eat in the mess hall. In June 1966, the veteran was treated for complaints of abdominal pain. The veteran reported that this pain had lasted one day. Gastritis symptoms were noted on the medical report. In the following month, the veteran was treated twice for nausea. Tenderness of the abdomen was noted. Gastroenteritis was diagnosed. With regard to the veteran's skin condition during service, the service medical records indicate that in August 1963 he was treated for complaints of irritation in the groin. Acne was diagnosed, and the veteran was given lotion and referred to the dermatology clinic. From August 1963 to February 1964, the veteran was treated at least once a month for papular and comedo acne. In February 1964, the veteran was treated at the dermatology clinic and was found to be doing well with respect to his acne. In December 1964, the dermatology clinic again found that the veteran was doing very well with respect to his acne. The separation examination, which was conducted in September 1966, failed to note any findings of a skin or a stomach disorder. On the Report of Medical History, which the veteran completed at the time of the separation examination, he reported that he had experienced stomach, liver, or intestinal trouble. The military physician conducting this examination noted on the Report of Medical History that the veteran had reported that he had had a "nervous" stomach all of his life and that he had experienced pain in his abdomen since entering service in 1962. However, the physician also noted that no disease was found. According to the post-service VA outpatient treatment records considered by the RO at the time of the October 1984 decision, the first evidence of complaints of, treatment for, or findings of a skin disorder is a medical report dated in June 1983, at which time the diagnosis of maculopapular rash of unknown etiology was made. The first evidence of a stomach disorder at the time of the October 1984 decision is a medical report dated in December 1983, at which time findings of a soft right upper quadrant cholecystectomy scar and abdominal pain of undetermined etiology were noted. In February 1984, the diagnosis of functional bowel disease was made. Based on this evidence, the RO concluded in the October 1984 rating decision that the in-service episodes of skin rashes and abdominal pain resolved without residuals by the time the veteran was discharged from service. In the rating decision, the RO noted that the first medical evidence of complaints of, treatment for, or findings of skin and stomach disorders occurred in 1983, approximately 17 years after the veteran's separation from service. The RO concluded that there was no evidence of continuity of symptomatology between the in-service episodes of skin rashes and abdominal pain and the post-service findings of skin and stomach disorders. Consequently, the RO denied service connection for skin and stomach disorders on the basis that the conditions noted during service were not chronic and that there was no evidence relating either of these conditions to the skin and stomach problems noted at that time. The veteran was notified of this decision in the same month. He filed a notice of disagreement at the RO in December 1984. However, he failed to file a substantive appeal after he was furnished a statement of the case in September 1985. Because a timely appeal was not made, the RO's October 1984 decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1994). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened, and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The United States Court of Veterans Appeals (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566 (1993). With regard to petitions to reopen previously and finally disallowed claims, the VA must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the VA must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that "new evidence" is evidence that is not "merely cumulative" of other evidence of record. Id. The Court has also explained that evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. Second, if the VA determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court recently reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, 7 Vet.App. 113 (1994). The Court has also held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Therefore, in the present case, the Board must review, in light of the applicable law, regulations, and Court cases regarding finality, all of the additional evidence submitted since the RO's October 1984 decision. The Court has set forth guidelines regarding the credibility to be accord to the additional evidence submitted in a claim for service connection based on finality. In particular, the Court has held that, in determining the issue of whether the additional evidence submitted is new and material, a question of law, the credibility of the evidence must be presumed. However, this presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the VA, having accepted provisionally for reopening purposes the credibility of the new evidence, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus v. Principi, 3 Vet.App. 510, 512-513 (1992). Recently, however, the Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require the VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, No. 93-338, slip op. at 6 (U.S. Vet. App. Dec. 13, 1994). According to the applicable law and regulations, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1994). Since the RO's October 1984 decision, the veteran has submitted a recent VA general medical examination, post-service VA and private medical records, lay statements, and additional contentions. The Board presumes the credibility of all of this additional evidence submitted since the 1984 decision. See Justus, 3 Vet.App. at 512-513 and Duran, No. 93-338, slip op. at 6. With regard to the veteran's own statements, the Board notes that at the personal hearing conducted before a hearing officer at the RO in August 1992, the veteran testified that he first began having problems with his stomach during service. Hearing transcript at 1-3. He also testified that he developed a skin rash on his face and groin area during service, which was the first time he had experienced such a condition. Id. at 6-7. According to the testimony, the veteran was treated for stomach problems immediately after his separation from service and had gallstones removed sometimes between 1971 and 1973. Id. at 3-6. These statements are essentially the same arguments that the veteran raised at the time of the 1984 rating decision. The veteran, however, now contends that his stomach disorder during service and prior to the gallbladder surgery was due to the gallbladder disorder and that doctors told him so at the time of the gallbladder surgery. Importantly, however, the veteran has also submitted, with regard to the current appeal, 14 lay statements. Most of these letters were written by persons who know the veteran since at least 1969. According to these statements, the veteran has experienced skin and stomach problems since service. The veteran has also submitted, since the RO's 1984 decision, copies of post-service medical treatment records. According to these records, the veteran was treated for complaints of an upset, or nervous, stomach as well as skin problems after separation from service and prior to the first post-service treatment that was documented at the time of the October 1984 decision. One of the private medical statements dated in January 1967 indicates a diagnosis of nervous stomach and acne vulgaris. Consequently, these additional records are relevant and probative to the issue of continuity of symptomatology of these disabilities and, therefore, raise a reasonable possibility that, when viewed in the context of all of the evidence, both new and old, the additional evidence would change the outcome. The additional evidence is new and material in light of the applicable law, regulations and Court decisions and does provide the required evidentiary basis to reopen the veteran's claim. ORDER New and material evidence having been submitted, the appeal to reopen the claims of entitlement to service connection for skin and stomach disabilities is granted. REMAND The Court has held that, when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. A Board decision that a claimant will not be prejudiced by its deciding a question or questions not addressed by the agency of original jurisdiction must be supported by an adequate statement of reasons or bases. Consequently, when the Board decides that new and material evidence has been submitted to reopen a claim of entitlement to service connection for a disability, the de novo issue of entitlement to service connection for that disability may have to be remanded to the RO for adjudication. Bernard v. Brown, 4 Vet.App. 384, 392-395 (1993). The Board believes that the present case should be remanded to the RO for a de novo review of the claims of entitlement to service connection for skin and stomach disorders. In this regard, the Board also notes that further development is necessary before this claim can be adjudicated. A review of all of the medical records included in the claims folder indicates that the veteran has received various diagnoses with regard to his skin disorder over the years. At the VA general medical examination conducted in October 1992, the diagnosis of a skin condition, folliculosis, similar to mild acne vulgaris, in remission at the time of the examination, was made. Significantly, however, neither the examiner nor any of the prior physicians who examined the veteran expressed an opinion regarding the etiology of his skin disorder. In other words, the claims file contains no medical opinion as to whether the veteran's current skin disorder is in any way related to, or was caused by, the in-service episodes of skin disorder. Furthermore, with regard to the veteran's stomach disorder, the examiner diagnosed at the October 1992 VA examination status post cholecystectomy, with removal of gallstones, and peptic ulcer disease, never documented. Again, however, neither this examiner nor the other physicians who have examined the veteran discussed whether the cholecystectomy, gallstones, or peptic ulcer disease is in any way related to, or was caused by, the in-service episodes of treatment for abdominal pain. The Court has held that VA decisions must be based on medical evidence rather than on unsubstantiated opinion. If the medical record is insufficient or of doubtful weight or credibility, the RO is free to supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The Board also notes that the enlistment examination did not demonstrate any evidence that the veteran's stomach condition existed prior to service. However, a November 1962 entry in the service medical records indicates that the veteran sought treatment for complaints of abdominal pain after being on active duty for only one month. Significantly, at that time, the veteran stated that he had had abdominal pain for approximately one year. Moreover, at the separation examination, the veteran reported to the examiner that he had experienced a "nervous" stomach all of his life. The claims folder does not contain any evidence of treatment for abdominal pain before entry into active service. The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his skin and stomach disorders since 1992. In addition, the veteran should be requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his stomach condition prior to his entry into active service. Furthermore, the veteran should also be requested to provide a complete list of all medical personnel and facilities, including the St. Francis Hospital in San Francisco, California (between 1971 and 1973), from which he received treatment for his gallbladder disorder, including gallstone operation. After obtaining the appropriate releases from the veteran where necessary, the health care providers should be contacted and requested to provide all treatment records in their possession pertaining to the veteran. If these records are unavailable, or are duplicates of those already on file, those facts should be annotated in the claims folder. Any available records should be associated with the claims folder. 2. Following the above, the veteran should be accorded a VA dermatology examination to determine the nature, extent, and etiology of any present skin disorder he may have. The report of examination should include a detailed account of all manifestations of any disorder found to be present. All tests deemed necessary should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examination should be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations. The examiner is specifically requested to express an opinion as to whether any skin disorder, including folliculosis and acne vulgaris, found on examination is in any way related to, or was caused by, the in-service episodes of skin disorder. The examiner should refer to, and cite, the specific service medical record entries and post-service medical records used as a basis for this opinion. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The specialist should provide complete rationale for all conclusions reached. 3. Thereafter, the veteran should be accorded a VA gastrointestinal examination to determine the nature, extent, and etiology of any present gastrointestinal disorder he may have. The report of examination should include a detailed account of all manifestations of any disorder found to be present. All tests deemed necessary should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examination should be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations. The examiner is specifically requested to express an opinion as to whether any gastrointestinal disorder, including peptic ulcer disease and residuals of the cholecystectomy, found on examination is in any way related to, or was caused by, the in-service episodes of abdominal pain. The examiner should refer to, and cite, the specific service medical record entries and post-service medical records used as a basis for this opinion. In addition, the examiner should also express an opinion as to whether the veteran had any type of stomach disorder prior to his entry into service and, if so, whether there was an increase in the disability during service which was not due to the natural progress of the disease. In answering this question, the examiner should refer to, and cite, the relevant service medical records as well as any applicable preservice medical records obtained pursuant to this remand. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The specialist should provide complete rationale for all conclusions reached. 4. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this Remand. If not, they should be returned for corrective action. 5. Thereafter, the RO should formally adjudicate the issues of entitlement to service connection for skin and stomach disorders. With regard to the claim of entitlement to service connection for a stomach disorder, the RO should consider the Court's holding in Crowe v. Brown, No. 93-550 (U.S. Vet. App. Dec. 20, 1994) and determine whether the presumption of soundness is rebutted by clear and unmistakable evidence that a stomach disorder preexisted service and, if so, whether there was an increase in this disability not due to the natural progress of the disease during service. The review of the claims should be on a de novo basis, without regard to the October 1984 denial of the claims. Following completion of these actions, and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of this REMAND is to obtain clarifying evidence. No action is required of the veteran until further notice is issued. WILLIAM J. REDDY 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).