BVA9502209 DOCKET NO. 91-15 247 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for lymphocytic lymphoma for purposes of accrued benefits. 2. Entitlement to restoration of a 60 percent schedular evaluation, for purposes of accrued benefits, for the residuals of a subtotal gastrectomy, evaluated as 40 percent disabling at the time of the veteran's death. 3. Entitlement to a total rating for compensation purposes based on unemployability for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from August 1950 to August 1955. This matter came before the Board of Veterans' Appeals (Board) from an October 1990 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The death certificate shows that the veteran died on April [redacted] 1990 due to hepatic failure due to gastric lymphoma; gastric ulcer disease was listed as contributing to death. The appellant's formal claim for accrued benefits was received later that month as part of her claim for service connection for the cause of the veteran's death. In a rating action of July 1990, the RO granted service connection for the cause of the veteran's death but a further rating action of October 1990, denied service connection for lymphocytic lymphoma for purposes of accrued benefits. Following an April 1992 remand by the Board, the RO, in a December 1992 rating action, confirmed its previous determination regarding service connection for lymphocytic lymphoma and denied accrued benefits for an increased evaluation for subtotal gastrectomy and a total rating based on unemployability. In October 1993, the Board again remanded this case in attempt to obtain pathologic material from the Armed Forces Institute of Pathology but no such materials were found. In view of the grant below of service connection for lymphocytic lymphoma for purposes of accrued benefits and given the holdings of the United States Court of Veterans Appeals in Hayes v. Brown, 4 Vet.App. 353 (1993), the RO should consider the issue of entitlement to special monthly compensation on an accrued basis. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the mass on the veteran's left breast during service and his gastrointestinal complaints during service and shortly thereafter were caused by lymphocytic lymphoma which therefore warrants service connection. It is also argued that his ulcer disorder had not improved prior to his death and that a 60 percent schedular evaluation is warranted for purposes of accrued benefits. Finally, it is contended that the veteran was unemployable due to his service connected disability and that a total rating based on unemployability is also warranted for purposes of accrued benefits. 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(s). 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 evidence received since the Board's October 1988 decision denying service connection for lymphocytic lymphoma is new and material and the claim for this benefit is reopened; it is further the decision of the Board the evidence is at least in equipoise and with resolution of reasonable doubt in the appellant's favor warrants service connection for lymphocytic lymphoma for the purpose of accrued benefits. It is also the decision of the Board that the claims of accrued benefits for an increased evaluation for the residuals of a subtotal gastrectomy and a total rating based on individual unemployability lack legal merit. FINDINGS OF FACT 1. Evidence received since service connection for lymphocytic lymphoma was last denied by the Board in October 1988 is not solely cumulative or redundant, is relevant and probative, and when viewed in conjunction with the evidence previously record raises a reasonable possibility of an outcome different from that reached by the Board in October 1988. 2. It is probable that the veteran's lymphocytic lymphoma manifested to a compensable degree within one year following separation from service. 3. The appellant's claims for restoration of a 60 percent evaluation for the residuals of a subtotal gastrectomy for purposes of accrued benefits and a total rating based on individual unemployability for purposes of accrued benefits lack legal merit. CONCLUSION OF LAW 1. Evidence received since the October 1988 Board decision denying the veteran's application to reopen his claim for service connection for lymphocytic lymphoma is new and material, and his claim for this benefit is reopened for purposes of accrued benefits. 38 U.S.C.A. 5107, 5108, 7104(b) (West 1993) 2. Lymphocytic lymphoma is presumed to have been incurred during service for the purpose of accrued benefits. 38 U.S.C.A. 1101, 1110, 1112, 1113,1131, 1137, 5021, 5107 (West 1993); 38 C.F.R. 3.307, 3.309, 3.1000(a) (1993). 3. The appellant's claims for restoration of a 60 percent evaluation for the residuals of a subtotal gastrectomy for purposes of accrued benefits and a total rating based on unemployability for purposes of accrued benefits are legally insufficient. 38 U.S.C.A. §§ 1155, 5021; 38 C.F.R. 3.1000(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Whether new and material evidence has been submitted to reopen a claim for service connection for lymphocytic lymphoma for purposes of accrued benefits. The veteran's claim for service connection for lymphocytic lymphoma was denied by the Board in April 1986 and October 1988. those decisions were final based on the evidence then of record. 38 U.S.C.A. 7104 (West 1993). However, the claim may be reopened if new and material evidence has been submitted. 38 U.S.C.A.. 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991) After a careful review of the record, we find that the evidence received since the October 1988 Board decision is new because it is not wholly cumulative or redundant, and material because it is relevant and probative and, when viewed in conjunction with the evidence previously of record, raises a reasonable possibility of an outcome different from that reached by the Board in October 1988. Evidence which was of record at the time of the Board's October 1988 decision may be briefly summarized. The veteran was seen on occasion during service for gastrointestinal complaints. In April 1955, the veteran was evaluated for a firm, slightly tender, movable mass on the left breast which was present for approximately one year and had recently increased in size. It was felt that this was fibrocystic mastitis. The left breast was excised in April 1955. Later that month, it was noted that the veteran was to undergo a gastrointestinal X-ray because of weight loss. The separation examination was negative for findings or diagnosis of lymphocytic lymphoma. A private physician reported that he treated the veteran for stomach trouble in December 1955; a gastrointestinal series was performed at that time and a diagnosis of gastric ulcer was rendered. Thereafter, the veteran was seen for gastrointestinal complaints and an upper gastrointestinal series and gastroscopy of July 1958 was reported to show ulcers along the posterior lesser curvature of the stomach. Subsequent treatment from 1960 to 1969 was indicated. In May 1969, the veteran was hospitalized at a private facility with a diagnosis of gastric ulcers. During a private hospitalization in February 1973, an upper gastrointestinal series showed several ulcer craters along the greater curvature of the stomach. It was felt that this lesion was possibly undergoing malignant changes. The veteran underwent a gastric resection in September 1974 and he was found to have a peptic ulcer without usual chronic active features and lymphocytic infiltrates which were marked and diffuse. During a private hospitalization in March 1984, a diagnosis of lymphocytic lymphoma of the stomach was rendered. In the course of this this hospitalization, the veteran underwent a hemigastrectomy for gastric outlet syndrome. Several private physicians opined that the disease process diagnosed as lymphocytic lymphoma in 1984 was likely present at the time of the veteran's 1974 surgery. Some of these physicians, noting that the veteran's lymphoma was slowly progressive, opined that the disease process could have been in existence for a long period prior to 1974, and may have existed during the veteran's period of service. Other physicians opined that the in service gastrointestinal complaints and the ulcer found in 1955 were manifestations of the veterans lymphocytic lymphoma. Following a VA oncology examination in April 1987, the examiner opined that the veteran's gastric symptoms were not those of a tumor until tissue was obtained in 1974. He seriously doubted that there was any relationship between the symptoms in 1955 and the later development of a lymphoma. Evidence received since the October 1988 Board decision prominently includes a statement from a VA pathologist, dated in September 1989. This physician reviewed tissue samples and the veteran's clinical records and noted that the ulcers in his stomach were secondary to malignant lymphoma and had no features of peptic ulcer disease. He opined that the veteran's neoplastic disease and secondary ulcers had a prolonged, indolent course for at least 15 years and it was not unreasonable to infer that the malignant disease existed for an unspecified period prior to 1974. There is also a statement, dated in September 1989, from the pathologist of the private hospital where the veteran underwent his 1984 gastrectomy. This physician reviewed the tissue slides from the veteran's 1974 and 1984 surgeries. Study of both sets of slides showed extensive involvement by lymphocytes in the lymph nodes and stomach wall and, in both cases, the ulceration did not show changes characteristic of peptic ulcer disease. The gastric ulceration in both cases were involved with abnormal lymphocytic infiltrates. The pathologist judged that the gastric ulcers were etiologically related to the malignant lymphoma and, indeed, were secondary to the malignant lymphoma as there was no histopathologic evidence of peptic ulceration. The physician further stated that, after ruling out peptic ulcer disease and considering the progression of malignant lymphoma, an etiologic relationship could be established between the gastric ulcers and the lymphoma. It was probable that this etiologic relationship existed from the inception of the ulcer disease. The Board is of the opinion that this evidence, received subsequent to the Board decision of October 1988 is new and material. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The recent evidence indicates that the stomach ulceration found in both 1974 and 1984 was due to lymphoma and not to peptic ulcer disease. Moreover, since no evidence of peptic ulcer disease was noted after either surgery, the implication is clear that the veterans stomach ulceration was etiologically related to lymphoma and not to peptic ulcer disease. Therefore, the veteran's claim for service connection for lymphocytic lymphoma must be reopened and considered on a de novo basis. In view of the absence of any indications of peptic ulcer disease after the surgeries of 1974 and 1984, and given the earlier statements from private physicians opining that the ulcer reported in 1955 was due to the veteran's subsequently diagnosed lymphoma, the Board is of the opinion that the evidence is at least in equipoise on this question. Therefore, with resolution of all reasonable doubt in the veteran's favor, service connection for lymphocytic lymphoma, for purposes of accrued benefits, is warranted. II. An increased evaluation for the residuals of a subtotal gastrectomy for purposes of accrued benefits and a total rating based on unemployability for purposes of accrued benefits In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United States Court of Veteran's Appeals held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. id. at 430. Under the provisions of 38 C.F.R. § 3.1000(a) (1993), benefits may be paid on an accrued basis which the veteran was entitled to at his death which were due and unpaid for a period not to exceed one year prior to the last date of entitlement. A rating decision of March 1990 reduced the evaluation for the residuals of the veteran's subtotal gastrectomy from 60 percent to 40 percent disabling and also terminated his total rating based on individual unemployability. However, the effective date for these reductions were June 1, 1990. Since the veteran died on April [redacted] 1990, no actual reduction took place during the veteran's lifetime and both the 60 percent schedular evaluation for a subtotal gastrectomy and a total rating based on unemployability were in effect for the year preceding the veteran's last date of entitlement, April [redacted] 1990. Therefore, the Board finds that the appellant's claim for restoration of a 60 percent evaluation for a subtotal gastrectomy and a total rating based on unemployability for purposes of accrued benefits is legally insufficient. See Sabonis, supra. ORDER Entitlement to service connection for lymphocytic lymphoma for purposes of accrued benefits is granted. Evidence of a legally meritorious claim not having been submitted, the claim of entitlement to an increased evaluation for a subtotal gastrectomy for purposes of accrued benefits and entitlement to a total rating based on unemployability for purposes of accrued benefits is dismissed. ROBERT E. SULLIVAN 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. (CONTINUED ON NEXT PAGE) 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.