BVA9505678 DOCKET NO. 93-12 585 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hypoglycemia. Entitlement to an increased (compensable) rating for hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from February 1943 to April l946. In August 1974, the veteran requested that the rating for the service-connected hepatitis be increased. He further stated that this rating should include hypoglycemia. In a December 1974 rating action, service connection was denied for hypoglycemia. The veteran was informed, in a January 1975 letter, that there was "no relationship shown between your current liver disturbance and your service-connected hepatitis." The Board of Veterans' Appeals (Board) holds that while there was no specific mention of the hypoglycemia in the 1975 letter to the veteran, in light of his contentions, he was on notice that service connection for hypoglycemia had been denied. As he did not submit a timely notice of disagreement, the decision denying service connection for hypoglycemia became final. A March 1982 confirmed rating decision denied service connection for hypoglycemia. A March 1982 letter informed the veteran that the evidence did not warrant any change in the previous decision denying service connection for hypoglycemia. The veteran did not appeal that decision. Because prior formal rating decisions had not specifically listed "hypoglycemia" as the disorder that had been denied, the omission was remedied by a rating decision of July 1992, which reflects the information described above. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his liver is malfunctioning as a result of the hepatitis, and that an increased rating is therefore warranted. In support of this contention, he notes remarks by his treating Department of Veterans Affairs (VA) physician. He further argues that there is an etiological relationship between the hepatitis and the hypoglycemia, and that service connection for hypoglycemia on a secondary basis is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for entitlement to an increased rating for hepatitis. It is also the Board's decision that the veteran has not presented new and material evidence to reopen a claim for entitlement to service connection for hypoglycemia. FINDINGS OF FACT 1. Service connection for hypoglycemia was denied by the Regional Office (RO) in a March 1982 decision. 2. The evidence received since that time, when considered with the old evidence, does not demonstrate a reasonable possibility of a favorable outcome on the issue of service connection for the disorder in question. 3. The veteran's hepatitis is present by history only and is not shown to result in any form of functional disability. CONCLUSIONS OF LAW 1. The evidence received since the March 1982 RO decision denying service connection for hypoglycemia is not new and material, and the veteran's claim for service connection for this disorder is not reopened. 38 U.S.C.A. §§ 1110, 5107, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.310 (1994). 2. A compensable rating for hepatitis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7345 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claim is well grounded. That is, he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). In an October 1993 written presentation, the veteran's representative pointed out that an examination for compensation purposes had not been conducted in many years, and he requested that the veteran be afforded a VA examination. The Board notes that the RO obtained private and VA treatment records during the pendency of the veteran's claim for an increased rating. These records appear to contain sufficient data on which to provide an equitable decision, and, thus, a remand for examination purposes is not warranted. See also 38 C.F.R. § 3.326(a) (1994). I. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hypoglycemia In a 1982 rating action, service connection was denied for hypoglycemia. The veteran did not submit a notice of disagreement. This determination is final. 38 U.S.C.A. § 7105 (West 1991) To reopen his claim the veteran must submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991); Manio v. Derwinski 1 Vet.App. 140 (1991). For evidence to be new and material, it is not enough to show that the evidence was not previously considered. Rather, it must also be shown that the recently submitted evidence, when considered in light of all the evidence, both old and new, would raise the reasonable possibility of a favorable outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a) (1994). Evidence that was on file at the time of the 1982 rating decision included the veteran's service medical records which showed no findings of hypoglycemia. A letter was received from Paul From, M.D., dated in August 1974. He indicated that the veteran had episodes of fatigability relived by ingestion of glucose, along with nervousness, depression and vague abdominal distress. The diagnoses included hypoglycemia, but Dr. From reached no conclusions with regard to the etiology of the disorder, nor did he comment on the relationship, if any, between the hypoglycemia and the service-connected hepatitis. On VA compensation examination in December 1974, the examiner concluded that a diagnosis of hepatitis residuals on the basis of disturbed liver function could not be made, and that likewise, there was little evidence to support the idea that hypoglycemic reaction was in any way related to the minimal liver changes. Dr. From indicated in a letter dated in October 1979 that he had been treating the veteran since July 1973 for, among other disabilities, history of hepatitis and hypoglycemia, secondary to hepatitis. On VA compensation examination in February 1982, glucose tolerance testing did not confirm the presence of hypoglycemia. Since the time of the 1982 RO decision, the veteran has submitted reports of treatment at the Knoxville Area Community Hospital, demonstrating marked hepatomegalia with cirrhosis, without reference to hypoglycemia. He also indicated that he had received treatment from Earl J. McKeever, M.D. Appropriate waivers were obtained; however, Dr. McKeever did not respond to a request for records. The Board also has available for review reports of treatment at VA medical facilities. Such records reflect treatment for liver problems, but there are no findings of hypoglycemia related to service or to service-connected disability. The veteran has indicated that he was told by a VA physician that there was an etiological relationship between the service-connected hepatitis and hypoglycemia. However, VA records were obtained, and there is no objective medical evidence in those records to confirm such a relationship. See also 38 C.F.R. § 3.326(d) (1994) on the accepted use of private records for benefits purposes. The cited evidence is new, in that it has not been previously considered by the Board. However, it is not material, in that it does not raise a reasonable possibility of a favorable outcome. Under such circumstances, the veteran's claim for service connection for hypoglycemia has not been reopened, and the previous denial remains final. II. Entitlement to a compensable rating for hepatitis The veteran was treated in service, beginning in August 1945, for acute infectious hepatitis. As of November 1945, the acute hepatitis was noted to be cured. At the time of the service separation examination in April 1946, the veteran complained of poor appetite and biliousness. Physical examination revealed a tender liver that was not enlarged. On annual physical evaluation in January 1972, there were no pertinent findings. Private diagnoses noted in August 1974 included abnormal enzyme studies with history of previous hepatitis. Following VA examination of December 1974, the pertinent diagnosis was infectious hepatitis by history, with no evidence of residuals. A private medical statement of July 1976 referred to abnormal enzyme studies that were consistent with a chronic type of hepatitis; the pertinent diagnosis in an October 1979 private medical statement was history of hepatitis with continuing abnormal enzyme studies. During VA examination of February 1982, the pertinent diagnosis was hepatitis, from history, with no evidence of liver damage or present activity. The veteran's current non-compensable evaluation for hepatitis reflects healed, non symptomatic hepatitis. For a 10 percent rating to be warranted, there must be demonstrable liver damage with mild gastrointestinal disturbance. 38 C.F.R. Part 4, Code 7345 (1994). A private computerized tomography (CT) of June 1991 was accomplished to evaluate for a possible liver mass in the veteran who was known to have cirrhosis. An ultrasound of June 1991 and an August 1991 CT scan revealed hepatomegalia with findings consistent with cirrhosis of the liver. VA outpatient treatment records of September 1990, October 1990 and February 1991 show a pertinent diagnosis of alcohol liver disease. Treatment records of August 1991 reveal that the veteran was seen to discuss private laboratory results. Positive hepatomegaly and history of infectious hepatitis were noted. The pertinent assessment in August 1991 was hepatomegaly, history of hepatitis, probably cirrhosis. In September 1991, the veteran received treatment for alcohol liver disease. A review of the private and VA medical records shows that the veteran has been treated for liver problems. However, these records demonstrate that the liver pathology is the result of cirrhosis of the liver and not due to hepatitis. In fact, the treatment records do not relate a disability to hepatitis; hepatitis is typically referred to by history only. Since the objective evidence does not demonstrate other than nonsymptomatic healed hepatitis, the Board concludes that a compensable evaluation is not appropriate. In reaching the above decision, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the veteran's service-connected hepatitis presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1) (1993). For example, the disability in question did not recently require frequent periods of hospitalization, nor is it shown to cause marked interference with employment. ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection for hypoglycemia, the veteran's claim for service connection for this disorder remains denied. A compensable rating for hepatitis is denied. M. SABULSKY 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.