BVA9500258 DOCKET NO. 93 06 186 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hiatal hernia. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a stomach disability, and, if so, whether all the evidence both old and new warrants the grant of service connection for that disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty in the Armed Forces from December 1948 to September 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision from the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in June 1992. A statement of the case was issued in July 1992. A substantive appeal was received in July 1992. The RO, in it a decision letter, dated in September 1991, denied, in essence, entitlement to service connection for a neurosis on the basis that new and material evidence was not submitted. The veteran's representative filed a notice of disagreement with respect to this issue in June 1992. However, as a statement of the case was never issued, this issue is referred to the RO for issuance of a statement of the case. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that his current hiatal hernia is the result of his stomach disability in service. The veteran also contends that he has submitted new and material evidence to reopen his claim for a stomach disability. The veteran claims that his stomach disability has been bothering him in the identical way since he was stationed in Okinawa in service as evidenced by inservice treatment. He asserts that he was immediately treated after separation from service by private physicians. 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 veteran's claim for service connection for hiatal hernia is not well grounded, and new and material evidence has not been submitted to reopen the veteran's claim for entitlement to service connection for a stomach disability. FINDINGS OF FACT 1. The evidence does not establish the presence of hiatal hernia until many years after service nor does it establish that it is related to service. 2. Service connection for a stomach disability was denied by the Board on the basis of the entire record in a March 1958 decision. 3. In support of the appellant's request to reopen his claim for service connection for a stomach disability, a letter from Dr. Stalker, a letter from Dr. Reinke, outpatient records from Riverview Hospital, an esophogram and upper gastrointestinal x-ray evaluation, and the veteran's statements are of record. 4. The evidence submitted in support of the request to reopen the claim is either cumulative or is not material and, therefore, does not raise a reasonable possibility that a review of all the evidence, both old and new, would result in a different outcome of the claim. CONCLUSIONS OF LAW 1. The veteran's claim for entitlement to service connection for hiatal hernia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Evidence received since the Board's final March 1958 decision which denied the appellant's claim for service connection for a stomach disability is not new and material, and thus the appellant's claim on the issue of entitlement for service connection for a stomach disability, is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted when the veteran has a disability as the result of disease or injury incurred or aggravated by wartime or peacetime service that is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110, 1131 (West 1991). I. Entitlement to Service Connection for Hiatal Hernia. In a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, and one which is meritorious on its own or capable of substantiation. Such a claim may not be conclusive, but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78, 80 (1990). The claim must be accompanied by supporting evidence, an allegation is not enough. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). All the evidence of record must be examined, not just that which has been specifically submitted to support a particular claim. Proscelle v. Derwinski, 2 Vet.App 629 (1992); Godwin v. Derwinski, 1 Vet.App 419 (1991). In addition, in cases in which the determinative issue is the medical causation of the veteran's current disability, competent medical evidence is required for the veteran to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran's service medical records are negative for any complaints or findings associated with hiatal hernia. The first mention of a hiatal hernia is contained in a report of an esophogram and upper gastrointestinal x-ray evaluation, performed in December 1982. They revealed a minimum sliding esophageal hernia demonstrated with increased intra-abdominal pressure. The veteran has asserted that his current hiatal hernia is the result of his stomach disability in service. The question of whether the symptoms currently manifested by the veteran are attributable to any occurrence or event in service can only be resolved by a person competent to make medical judgments. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The unsubstantiated assertions of the veteran are, therefore, insufficient to establish that his current hiatal hernia is the result of any occurrence or event in service which is almost 30 years prior to the first medical diagnosis of this condition. These assertions by the veteran do not add up to a plausible claim for service connection for hiatal hernia, and the record on appeal does not include competent medical evidence establishing a connection between the veteran's hiatal hernia and any occurrence or event in service. Therefore, the Board finds that since the veteran has only submitted his unsubstantiated opinion and not any competent medical evidence to warrant a conclusion that the veteran's hiatal hernia can be attributed to any event in service, he has not submitted evidence that would justify a belief by a fair and impartial individual that his claim is well grounded. Thus, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) (West 1991), and his claim as a matter of law is not well grounded. Grivois v. Brown, 6 Vet.App 136, 139; Espiritu v. Derwinski, 2 Vet.App. 492 (1992). If a claim is not well grounded, the veteran cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). II. Entitlement to Service Connection for a Stomach Disability. The Board denied entitlement to service connection for a stomach disability in October 1956 and March 1958. The Board, in its March 1958 decision, considered all the evidence then of record and denied the claim on its merits. Although the Board also reviewed the appellant's request to reopen the claim in September 1959, the Board did not enter a decision on the basis of the entire record at that time; instead, the Board concluded the evidence submitted subsequent to the prior Board decision did not establish a basis for modification of the outcome of the case. As has been noted by the United States Court of Veterans Appeals (Court), an analysis of whether there is new and material evidence to reopen a claim must be based on an assessment of all the evidence added to the record following the last decision on the entire record. Glynn v. Brown, 6 Vet.App. 523 (1994). Thus, in this case the question that must be resolved is whether the evidence added to the record after the decision of March 1958 constitutes new and material evidence. The evidence considered at the time of the Board's March 1958 decision can be briefly summarized. Service medical records revealed that the veteran was treated for nausea and vomiting with severe headache in August 1950 and diarrhea in July 1951. A statement from John Stalker, M.D., indicated that he had treated the veteran for complaints referable to his stomach beginning in October 1952. A VA hospital summary of treatment of stomach problems in August 1956 was of record. The final diagnoses, in part, were psychophysiological gastrointestinal reaction and a mild chronic anxiety reaction. In addition, the record included testimony presented by the veteran at a hearing in July 1956 in which he described the stomach disorders he contended that he had had in service and afterward. Statements were provided from friends and associates of the veteran, including K. Feighner, Murrell Brown, and H. Robinson. According to these statements, the veteran had complained of nervousness and stomach discomfort and had reported to sick call for these complaints in service, and he had expressed similar complaints while working shortly after service. Statements from I. Waggoner and L. Word were to the effect that the veteran had required a special diet as a result of his stomach complaints in the period following his separation from service. In a statement added to the record in February 1957, a private physician, Dr. Vandevert, reported that he had treated the veteran for "nervousness and general disability" in July and August 1948. After reviewing this record in March 1958, the Board concluded that the evidence did not establish that the veteran had a stomach condition that was incurred or aggravated in service. The applicable law states that, when a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 20.1105. A two-step process is required, consisting of a review of the evidence to determine whether there is new and material evidence to reopen the claim; then if there is new and material evidence, the claim is reopened, and there must be a review of all the evidence, both old and new, to determine whether the benefit should be granted. An adverse determination regarding either step is appealable. Manio v. Derwinski, 1 Vet.App. 140 (1991). New evidence means evidence not previously submitted. 38 C.F.R. § 3.156(a) (1993). Material evidence is that which is relevant and probative to the issue being considered. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). It is also that which raises the reasonable possibility of a different decision, and bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and by itself or in combination 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) (1993); Colvin, 1 Vet.App. at 174. For the limited purpose of determining whether a claim should be reopened, all evidence is presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1993). All evidence submitted after the last final denial of the merits of a claim must be considered to determine whether new and material evidence has been submitted to reopen the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). The records submitted since the March 1958 Board decision include statements from Dr. Stalker, a letter from Dr. C. Reinke dated in June 1958, outpatient records from Riverview Hospital for treatment from 1977 to 1978, an esophogram and upper gastrointestinal x-ray evaluation, performed in December 1982, and the veteran's statements. The statements from Dr. Stalker and Dr. Reinke were not in the record when the claim was denied in March 1958. However, an earlier statement from Dr. Stalker had been part of the record, and , when the Board reached its decision in March 1958, it considered the information referring to treatment by Dr. Stalker beginning in October 1952. Although no statement from Dr. Reinke had been in the record in March 1958, Dr. Reinke's statement refers to treatment the veteran had in 1958, a period more than 5 years after the veteran's active service ended. For this reason, Dr. Reinke's statement is merely cumulative; the record reviewed in March 1958 had included statements to the effect that the veteran had had stomach complaints and had seen private physicians in the period from 1952 to 1958. Outpatient records from Riverview Hospital for treatment from 1977 to 1978 are of record. Some of the records are illegible. However, an upper gastrointestinal x-ray contrast study was negative. An impression of gastritis was given. These records are new but they are not material as they do not attribute the gastritis to any occurrence or event in service. An esophogram and upper gastrointestinal x-ray evaluation were performed in December 1982. They revealed a minimum sliding esophageal hernia demonstrated with increased intra-abdominal pressure. These records are new but they are not material as they do not attribute a stomach disability to any occurrence or event in service. Taking into account all the evidence added to the record after March 1958, the Board concludes that the veteran has not submitted new and material evidence and his claim for service connection for a stomach disability is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). ORDER The appeal regarding entitlement to hiatal hernia dismissed; the appeal regarding entitlement to a stomach disability is denied. G. H. SHUFELT 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.