BVA9506425 DOCKET NO. 93-01 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a peptic ulcer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. E. Harrison, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from May 1945 to November 1945 and served as a new Philippine Scout from June 1946 to February 1949. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision by the Manila, Philippines, Regional Office. The veteran subsequently moved to the United States, and appeal now comes from the RO in Los Angeles, California. In a May 1969 decision, the Board denied the veteran's claim of service connection for peptic ulcer disease. At an April 1993 hearing, the veteran withdrew other developed issues of service connection for a thyroid disease and malaria from appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a peptic ulcer which is due to service. 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 sufficient to reopen the claim of service connection for peptic ulcer disease has not been submitted. FINDINGS OF FACT 1. The Board denied the veteran's claim of service connection in May 1969. 2. The additional evidence received since the Board's decision is cumulative in nature and does not raise a reasonable possibility of changing the outcome. CONCLUSION OF LAW As new and material evidence has not been submitted, the claim of service connection for peptic ulcer is not reopened. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a), 5108, 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. The veteran initially submitted an application for service connection for peptic ulcer in June 1968. A rating decision of November 1968 denied service connection. A May 1969 Board decision continued the denial of service connection. In connection with its decision, the Board considered a service physical examination of May 1946 which showed no abnormalities; the veteran's August 1947 Affidavit for Philippine Army Personnel showing that he had not had any "wounds or illness" in service; a February 1949 discharge examination showing no pertinent abnormalities; affidavits from four service comrades stating that the veteran had been hospitalized around August 1945 for gastric pains and was diagnosed as having a peptic ulcer; and a notification of record that the veteran was seen at Veterans Memorial Hospital in June and July 1968 for treatment of a peptic ulcer. In an effort to reopen his claim in June 1992, the veteran submitted a medical statement from Florentino M. Fermin, M.D., who reported that he had examined the veteran in August 1972 when it was reported that the veteran's illness started in January 1951. A tentative diagnosis of chronic peptic ulcer was made. Also made part of the record is a hospital summary referable to treatment from April 1975 to June 1975 showing that the veteran had had an antrectomy, vagotomy and Billroth II procedure. The veteran had a hearing in April 1993, at which he testified that he was treated for a peptic ulcer condition in 1945, 1951 and 1961. Analysis. The law permits the reopening of a finally adjudicated claim if new and material evidence is received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). The United States Court of Veterans Appeals (the Court) has held that evidence is "new and material" when it is not cumulative of evidence previously considered, when it is relevant to and probative of the issue at hand, and when, viewed in the context of all the evidence of record, it raises a possibility that the outcome of the claim would be changed. Colvin v. Derwinski, 1 Vet.App. 171 (1991); Smith v. Derwinski, 1 Vet.App. 178 (1991). If the claim is found to be reopened, a review of the merits of the claim must be made to ascertain whether all of the evidence of record, both old and new, establishes a basis for granting service connection. Manio v. Derwinski, 1 Vet. App. 140 (1991); 38 C.F.R. § 3.104(a) (1994). In determining whether new and material evidence has been submitted and the case should be reopened, the credibility of the evidence is to be presumed. 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. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Board finds that the evidence of record is neither new nor material. The additional medical evidence only shows that the veteran's illness started in 1951 and that he had had surgery for it in 1975. The record already contains records establishing the veteran was treated for a peptic ulcer beginning many years after service. Therefore, this evidence is merely cumulative of other evidence of record. In addition, the evidence does not serve to establish that he had peptic ulcer disease in service or during the one-year presumptive period thereafter. His hearing testimony is basically repetitive of information which was previously considered by the Board. As such, the additional evidence does not raise a reasonable possibility of changing the outcome. Accordingly, the Board finds that, as new and material evidence has not been submitted, the claim of service connection for peptic ulcer disease is not reopened. ORDER The claim of service connection for a peptic ulcer is not reopened as new and material evidence has not been submitted. The appeal is denied. STEPHEN L. WILKINS 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.