Citation Nr: 0005797 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-20 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been submitted to reopen a previously disallowed claim of entitlement to service connection for a stomach disability, to include duodenal ulcer disease. 2. Entitlement to service connection for a stomach disability, to include duodenal ulcer disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from May 1956 to September 1959. This case comes before the Board of Veterans' Appeals (Board) by means of a February 1997 rating decision rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that determined that new and material evidence had not been submitted to reopen a previously disallowed claim of entitlement to service connection for a stomach disability, to include duodenal ulcer disease. During the pendency of this appeal, the veteran relocated to Florida. Accordingly, the St. Petersburg, Florida, assumed the role as the agency of original jurisdiction for the present appeal. FINDINGS OF FACT 1. Service connection for a stomach disability was denied by the RO in February 1976. 2. In a May 1994 rating action, the most recent unappealed denial of the veteran's claim, the RO declined to reopen a claim for service connection for a stomach disability, to include duodenal ulcer disease, on the basis of new and material evidence. 3. Evidence contained in a June 1994 statement from the veteran's sister indicates that the veteran had an ulcer since separation from active duty. This statement bears directly on the claim of service connection for a stomach disability to include duodenal ulcer disease and is so significant that it must be considered in order to fairly decide the merits of the claim. 4. A nexus between the veteran's current stomach disability, to include duodenal ulcer, and his active military service is not shown. CONCLUSIONS OF LAW 1. The May 1994 rating decision holding that new and material evidence to reopen the veteran's claim for service connection of a stomach disability, to include duodenal ulcer disease, is final. 38 U.S.C.A. §§ 7104, 7105(c) (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.200, 20.302 (1999). 2. Evidence received since the May 1994 rating decision serves to reopen the veteran's claim for service connection. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). 3. A claim for service connection for a stomach disability, to include duodenal ulcer disease, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence has Been Submitted to Reopen a Previously Disallowed Claim of Entitlement to Service Connection for a Stomach Disability Prior decisions of the Board and the RO are final and may be reopened only upon receipt of additional evidence which, under applicable statutory and regulatory provisions, is both new and material so as to warrant revision of the previous decision. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 1999). "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely redundant and cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1990). When determining whether the veteran has submitted new and material evidence to reopen the claim, consideration must be given to all of the evidence submitted since the last final denial of the claim. Evans v. Brown, 9 Vet.App. 273 (1996); Glynn v. Brown, 6 Vet.App. 523 (1994). New and material evidence means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or 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). The United States Court of Veterans Appeals, now the United States Court of Appeals for Veterans Claims (Court), has held that pursuant to the holding of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), a three-step analysis of appeals of whether new and material evidence has been submitted to reopen a claim is necessary. The Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) (1999) in order to have a finally denied claim reopened under 38 U.S.C. § 5108 (West 1991 & Supp. 1999). Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility pursuant to Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C. § 5107(a) (West 1991 & Supp. 1999). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999); see also Elkins v. West, 12 Vet. App. 209 (1999). In the present case, service connection for a stomach condition was denied by the Newark, New Jersey, RO by means of a February 1976 rating action as a stomach disability was not shown on the veteran's separation examination report. The veteran was informed of this decision and supplied with notice of his appellate rights in February 1976. The record does not show that a Notice of Disagreement to this decision was received within one year subsequent to the date of notice, accordingly, this rating decision is final. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1999), 38 C.F.R. §§ 3.104, 20.302 (a) (1999). Subsequent to the original denial of the veteran's claim for service connection in February 1976, the veteran sought to reopen this claim based on the submission of new and material evidence several times. The most recent unappealed denial of the veteran's claim to reopen his claim for service connection was rendered in May 1994 by the Waco, Texas, RO. The RO determined that the evidence, while showing current treatment for a duodenal ulcer, did not establish that the condition was manifested to a compensable degree within 1 year of the veteran's discharge from active duty or was otherwise related to service. The veteran was notified of this decision and furnished with a copy of his appellate rights in June 1994. In December 1994, he submitted a timely Notice of Disagreement of the May 1994 denial. Subsequently, a Statement of the Case was issued and furnished to him in November 1995. The evidence shows that a substantive appeal was not received until December 1996 at which time the veteran submitted a VA Form 9, Appeal to the Board of Veterans' Appeals. The regulations provide that a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302 (b) (1999). As the veteran's substantive appeal was received more than 1 year after notification of the May 1994 decision and more than 60 days following issuance of the Statement of the Case in November 1995, the May 1994 rating action is final. Therefore, pursuant to the Court's holding in Evans v. Brown, 9 Vet.App. 273 (1996), the Board will consider whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a stomach disability, to include duodenal ulcer, subsequent to the May 1994 rating decision, which is the most recent final denial on that issue. Service connection may be established for a disease or injury incurred in or aggravated by service, resulting in a current disability. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection may also be established for a disease or injury proximately due to or the result of a disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.310 (1999). Therefore, in order to produce evidence which bears directly and substantially upon his claim such that it must be considered to fairly decide the merits of the claim, the veteran should produce evidence which, in conjunction with the evidence already of record, which bears on the question of whether a stomach disability was incurred in or aggravated by his active service or is proximately due to a disease or injury incurred in or aggravated by service. The evidence received subsequent to the May 1994 rating decision consists of private medical records from the Princeton Medical Center, dated in September 1978; a VA Medical Center (VAMC) hospital summary, dated in April 1982; VA outpatient treatment records from May 1991 to August 1997; a VA stomach, duodenum and peritoneal adhesions examination report, dated in November 1999; lay statements from the veteran's relatives; testimony given at a January 1997 hearing before a RO hearing officer; and excerpts from the veteran's service medical records. As stated above, the evidence received subsequent to the May 1994 rating action includes lay statements from the veteran's relatives. Of particular note, is a June 1994 statement from the veteran's sister indicating that the veteran has had ulcers since his discharge from the Air Force. This statement is new as it provides information that was not of record at the time of the May 1994 rating action. Similarly, the evidence is material as it bears directly and substantially on the specific matter of the veteran's claim. The statement collaborates the veteran's contentions and indicates that he has experienced ulcers since separating from active duty. Accordingly, the evidence submitted subsequent to the May 1994 rating decision is sufficient to reopen the veteran's claim for service connection for a stomach disability as it presents evidence that bears directly and substantially upon the specific matter under consideration and is neither cumulative nor redundant. Additionally, the new evidence, in connection with evidence previously assembled is of such significance that it must be considered in order to fairly decide the merits of the appellant's claim. Accordingly, pursuant to 38 C.F.R. § 3.156 (1999) the issue of entitlement to service connection for a stomach disability is reopened. The next question that must be resolved by the Board is whether the claim is well grounded; see Elkins, supra, and Winters, supra. This question will be addressed below. II. Service Connection for a Stomach Disability to Include Duodenal Ulcer Disease Having reopened the veteran's claim of entitlement to service connection for a stomach disability, it is necessary for the Board, to adjudicate his claim based on all the available evidence. See Elkins, supra, and Winters, supra The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). In order to establish a "well grounded" claim for service connection for a particular disability, the veteran needs to provide evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible or meritorious on its own and capable of substantiation. Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). The Board notes that service connection may be established for a current disability that has not been clearly shown in service where there is a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service is shown. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The Board concludes that medical evidence is needed to lend plausible support for the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza. See also Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). As stated previously, the veteran contends that he has a stomach disability, which he attributes to his active duty service. With regard to this claim for service connection, the determinative issues presented are (1) whether the veteran had an injury or disease of the stomach during service; (2) whether he currently has a stomach disability; and if so, (3) whether his current stomach disability is etiologically related to his inservice stomach injury or disease. After a review of the veteran's claims folder, the Board finds that the veteran's contentions are not supported by the evidence. Accordingly, his claim fails. A review of the veteran's service medical records reveals that he had a stomach disorder during active duty. The veteran's examination upon entry into active duty is negative for any stomach disability. Outpatient treatment records show that he complained of stomach cramps in July 1956. Similarly, he was seen in December 1958 with "vague epigastric symptoms." A gastrointestinal (GI) series revealed that the veteran's esophagus appeared normal. The stomach, while assuming a cascade configuration, was otherwise unremarkable. The duodenum showed a fairly small bulb with no evidence of ulceration. The treatment record indicates that the GI was negative for ulcer or spasm. In May 1959, the veteran was seen with complaints of unspecified abdominal pain moving into his throat with no vomiting. No diagnosis was listed on the treatment record. In September 1959, the veteran was afforded a VA separation examination. The examination report does not indicate that he had a stomach disorder at the time of his discharge from active duty. On the contrary, the examining physician noted a history of mild stomach disorder in the past, treated, with no present complications and no sequela. Based on the evidence set forth above, the Board finds that a stomach disorder is shown in service. Additionally, post-service VA and private medical treatment records show that the veteran has a current stomach disorder. The treatment records from the Princeton Medical Center indicate that the veteran obtained treatment for an upper GI bleed secondary to duodenal ulcer. Similarly, the April 1982 VA hospital summary shows hospitalization for duodenal ulcer disease with recurrent bleeding. VA outpatient treatment records show continuing treatment for a recurrent duodenal ulcer. In addition, the VA examination report of November 1999 shows a diagnosis of chronic duodenal ulcer. Accordingly, the Board finds that the evidence shows that the veteran has a current stomach disability, diagnosed as duodenal ulcer disease. As set forth above, a well-grounded claim also requires a nexus, or link, between the veteran's current stomach disability and his inservice stomach disorder. The evidence does not show a link, established by medical evidence, between any current stomach disability and his active military service. While the veteran had a stomach disorder during active service, service medical records show that he did not have a stomach ulcer. The first post-service clinical medical evidence of a duodenal ulcer or any other stomach disability is in found in a September 1978 report from the Princeton Medical Center showing treatment for an upper GI bleed secondary to a duodenal ulcer. The Board notes that the veteran has at various times related his contentions to his medical providers who have recorded his contentions as medical history. In particular, a June 1994 VA outpatient treatment record and the November 1999 VA examination report indicate a history of gastrointestinal symptoms since 1956. However, as these reports merely recite the veteran's general contention that service connection should be granted for his stomach disability rather than an independent medical opinion, they will not serve to reopen the veteran's claim. The Board is not required to accept doctors' statements that are based upon the veteran's recitation of medical history. Godfrey v. Brown, 8 Vet. App. 113 (1995), see also, Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Brown, 5 Vet. App. 474, 478 (1993). The Board notes the veteran's contentions raised in his claims statements and at his personal hearing that his current stomach disability, specifically his duodenal ulcer, is related to his service and is a current manifestation of a stomach disorder noted in service. Similarly, the veteran submitted statements from his brother-in-law, and two sisters indicating that he received treatment for a stomach disability at Princeton Medical Center and that he has experienced problems with a stomach ulcer since separating from active duty. However, the Board notes that the veteran has not provided competent medical evidence which verifies that any current stomach disorder is proximately due to or the result of any disease or injury incurred in or aggravated by service. To reiterate, where a claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Lay persons are not qualified to render a medical opinion concerning medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The veteran simply has not submitted competent medical evidence which shows that his stomach disability was is etiologically related to his active military service or is proximately due to or the result of any disease or injury incurred in or aggravated by service. Since, as previously discussed, service connection cannot be granted for a disease or disability that is not shown to be etiologically related to an inservice disease or injury, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for a stomach disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board accordingly finds that the veteran's claim is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board notes that presumptive service connection may granted duodenal ulcer disease that is not shown in service if the disability becomes manifest to a degree within one year following separation form active duty. 38 C.F.R. §§ 3.307, 3.309 (1999). However, the clinical evidence does not show that duodenal ulcer disease became manifested to a compensable degree within one-year following the veteran's release from active duty. On the contrary, the veteran has not submitted any evidence showing treatment for, or a diagnosis of, a duodenal ulcer within one year following his separation from active service. As set forth above, the first clinical evidence showing treatment for duodenal ulcer disease comes from a September 1978 private medical record 19 years following the veteran's release from active duty. Accordingly, service connection on a presumptive basis is not warranted for duodenal ulcer disease. The Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996) and McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). The Board also notes that its duty to assist the veteran in the development of his claim, as stipulated in 38 U.S.C.A. § 5107(a) (West 1991), does not arise until a claim is shown to be well grounded. As the veteran's claim is not well grounded, the duty to assist is not applicable. The Board must point out that the veteran is free to submit new and material evidence, and reopen his claim for service connection, at any time. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a stomach disability, to include duodenal ulcer disease. Having been reopened, the claim for entitlement to service connection for a stomach disability, to include duodenal ulcer disease, is not well grounded, and is therefore, denied. MARK W. GREENSTREET Member, Board of Veterans' Appeals