Citation Nr: 0001443 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-10 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran has verified service from March 1968 to February 1970. In an April 1989 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) initially denied entitlement to service connection for stomach and back disorders. The veteran was notified of that decision at his latest address of record, and did not appeal. He again claimed entitlement to service connection for back and stomach disorders, and in an August 1995 decision the Board of Veterans' Appeals (Board) determined that new and material evidence had not been submitted to reopen the previously denied claims. The veteran was also notified of the August 1995 decision, and did not appeal. He again claimed entitlement to service connection for those disorders, and in an August 1997 rating decision the RO again determined that new and material evidence had not been submitted. The veteran has perfected an appeal of the August 1997 decision. FINDINGS OF FACT 1. In an August 1995 decision the Board denied entitlement to service connection for back and stomach disorders. The veteran was notified of that decision and did not appeal, and the August 1995 decision is final. 2. The evidence submitted subsequent to the August 1995 Board decision is not new, in that it is cumulative and redundant of the evidence considered by the Board in August 1995. CONCLUSION OF LAW The August 1995 Board decision denying entitlement to service connection for stomach and back disorders became final, new and material evidence has not been submitted to reopen those claims, and the claims are not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background As previously stated, in the August 1995 decision the Board determined that new and material evidence had not been submitted to reopen the claims of entitlement to service connection for back and stomach disorders. The evidence considered in that decision included the veteran's service medical records, which are negative for evaluation, treatment, or diagnosis of a back or stomach disorder. In his August 1988 claim for VA compensation the veteran asserted that he had back and stomach problems as the result of exposure to Agent Orange in service. He made no reference to having injured his back during service. Private treatment records from 1973 to 1989 show that the veteran initially complained of back pain in May 1973, and was noted to have been vomiting blood. As the result of a hospitalization his stomach complaints were diagnosed as a peptic ulcer. He was seen in 1974 for abdominal pain, and in June 1976 he was evaluated for back pain related to a motor vehicle accident. He was found to have acute gastritis and a lumbosacral strain in October 1976. He was again treated for low back pain in September 1977 and August 1978, which was diagnosed as a muscle strain in August 1978. In 1982 he was evaluated for back pain related to an on-the-job injury. There was an assessment of lumbosacral strain in November 1983. In April 1989 he was evaluated for nausea. VA outpatient treatment records reflect that the veteran's back complaints were assessed as chronic low back pain in July 1984. In August 1986 he complained of intermittent vomiting over the previous two weeks, which was assessed to rule out peptic ulcer disease. In October 1986, as the result of an endoscopic examination, his stomach complaints were diagnosed as probable peptic esophagitis with erosion. A March 1987 entry reflects recurrent low back pain. In April 1987 the veteran was noted to have re-injured his back in a motor vehicle accident several days earlier, with a diagnosis of lumbosacral strain. A June 1987 entry shows that he had symptomatic esophagitis. In November 1987 he complained of chronic backache. When seen by VA in July 1988 and September 1989, the examiner noted that he had a history of reflux esophagitis and gastroesophageal reflux disease. A November 1989 entry indicates that he had an acute strain in the lumbar area. The veteran again complained of low back pain in January and March 1991, with no recent history of trauma. The diagnoses included lumbosacral muscle strain. In May 1991 he reported having had back problems since 1971, with low back pain radiating into his right lower extremity for the previous two years following a lifting injury. A November 1991 treatment record indicates that he had a history of low back pain for approximately 15 years, with significant back pain after heavy lifting as an ironworker nine years previously. In January 1992 he reported having experienced low back pain since 1982 secondary to a lifting injury. In a December 1992 hearing the veteran testified that he injured his back while stationed in Vietnam in 1969 in the course of attempting to dislodge an artillery trailer from the mud. He denied seeking any medical treatment at that time. He stated that a back disorder was found when he was medically examined within two years of separation, but that the records of that employment examination could not be located. He also testified that he had stomach problems shortly after his discharge from service, at which time he was found to have a hiatal hernia. He also stated that the records of the treatment that he received for his stomach shortly after service could not be located because the physician had retired. During a July 1993 VA gastrointestinal examination the veteran reported that the diagnosis of peptic ulcer disease had been made in 1972, with a subsequent diagnosis of a large hiatal hernia in 1974. An upper gastrointestinal X-ray performed in conjunction with the July 1993 VA examination revealed a small hiatal hernia with free gastroesophageal reflux, but no mass or ulcer was seen. The veteran was also provided a VA orthopedic examination July 1993, during which he reported that he first injured his back in 1969 while serving in Vietnam when he felt a "pop" in his back. Findings on examination included limitation of lumbar spine motion. The diagnosis was acute and recurrent strain of the lumbosacral spine. In an addendum to the examination report the examiner stated that it was impossible to determine whether the back pain noted at the time of the veteran's examination in July 1993 was due to service- incurred injury in 1969 or later industrial injuries. The examiner added that the veteran may well have injured his back digging trenches in Vietnam, but that fact was not recorded in the medical records. Similarly, he had no records pertaining to any industrial accident the veteran could have had. The examiner also stated that he had no records to disprove the veteran's assertion that he injured his back during service. An X-ray study of the spine in June 1993 revealed slight narrowing of the L5-S1 disc space. The report of a July 1993 electromyogram (EMG) and nerve conduction study (NCS) shows clinical findings of acute lumbosacral radiculopathy. In January 1994 the RO requested a VA gastroenterologist to provide a definitive diagnosis of the veteran's stomach disorder. Based on a review of the relevant medical records, the VA physician provided the diagnoses of hiatal hernia and gastroesophageal reflux disease. Evidence provided by the veteran in support of his claims of entitlement to service connection for stomach and back disorders since the August 1995 Board decision includes VA treatment records for December 1996 through March 1998 that indicate that the veteran continued to receive treatment for chronic back pain and lumbosacral strain. A January 1997 treatment record shows that he has been unemployed since 1990 because of his back pain. The VA treatment records also show that the veteran continued to receive treatment for stomach problems that were assessed as gastroesophageal reflux disease and a hiatal hernia. The records are silent as to the onset of the back and stomach disorders or any relationship to service. In his May 1998 substantive appeal the veteran stated that he had received treatment in 1971 and 1972 for his back and stomach problems, and that he was trying to locate the physician who had provided the treatment. He has not, however, provided any additional evidence in support of his claim. II. Laws and Regulations When a claim is disallowed by the Board, the claim may not be reopened and allowed and a claim based on the same factual basis may not be considered unless new and material evidence is submitted. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. If new and material evidence is presented with respect to a claim that has been denied, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). If the Board finds that new and material evidence has been submitted, it must then determine whether the reopened claim is well grounded based on a review of all the evidence of record. Only if the claim is well grounded can the Board apply the third step of the analysis, which is to re- adjudicate the claim for service connection on the substantive merits of the claim, after fulfilling VA's duty to assist the veteran in developing the facts of the case. See Winters v. West, 12 Vet. App. 203 (1999). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers and it is not cumulative or redundant. The evidence is "material" if it bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously considered, it is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156. New evidence may be found to be material if it provides "a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Elkins v. West, 12 Vet. App. 209 (1999). In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curiam). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). III. Analysis The Board has reviewed the evidence submitted subsequent to the August 1995 decision, in the context of all the evidence of record, and finds that new and material evidence has not been submitted. The evidence of record at the time of the Board's August 1995 decision included medical evidence showing that the veteran had chronic lumbosacral strain and gastroesophageal reflux disease. The evidence also included the veteran's assertion that he had received treatment for stomach and back problems shortly after his separation from service. The evidence submitted following the Board's August 1995 decision includes the VA treatment records showing that the veteran continued to receive treatment for chronic lumbosacral strain and gastroesophageal reflux disease, and his statement indicating that he had received treatment for his back and stomach disorders in 1971 and 1972. Because this evidence was considered by the Board in rendering the August 1995 decision, the additional evidence is cumulative and redundant of the evidence of record in August 1995, and it is not "new." Because the Board finds that the additional evidence submitted by the veteran is not "new," it need not determine whether the evidence is "material." See Smith v. West, 12 Vet. App. 312 (1999) (if the evidence is found not to be "new," the analysis ends there--its materiality is not relevant). The Board has determined, therefore, that new and material evidence has not been submitted to reopen the claims of entitlement to service connection for stomach and back disorders. ORDER New and material evidence not having been submitted, the appeal to reopen the claims of entitlement to service connection for back and stomach disorders is denied. N. W. Fabian Acting Member, Board of Veterans' Appeals