Citation Nr: 0001618 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 94-19 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastrointestinal disorder, claimed at various times as a stomach condition and a peptic ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from April 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. That rating decision denied entitlement to service connection for peptic ulcer disease. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), and in October 1998, the Court issued a single judge memorandum decision which vacated the Board's decision denying that new and material evidence had been submitted. The case was remanded to the Board for further proceedings consistent with the Court's order. [citation redacted]. The Board remanded the case to the RO to adjudicate the issue of whether new and material evidence had been submitted. The Board now proceeds with its review of the appeal. The veteran submitted a private psychiatric report dated November 1997. This appears to be an attempt to submit new and material evidence to reopen a claim for entitlement to service connection for a psychiatric disorder. This issue has not been developed for appellate consideration and is not properly before the Board at this time. This issue is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The Board denied the veteran's attempt to reopen his claim for service connection for a gastrointestinal disorder October 1985. 3. The evidence received since the October 1985 Board decision shows post service treatment for gastrointestinal problems, but does not indicate that current complaints are related to military service. 4. The evidence received since the October 1985 Board decision is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The October 1985 decision of the Board denying service connection for a gastrointestinal disorder is final. 38 U.S.C.A. § 7104(b) (West 1991 & Supp. 1999). 2. Evidence received since the October 1985 Board decision denying service connection for a gastrointestinal disorder is not new and material, and the veteran's claim for service connection for a gastrointestinal disorder has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1995). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Peptic ulcers may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). When considering whether new and material evidence has been presented or secured to reopen a claim, the law provides, If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). To determine whether new and material evidence has been presented or secured to reopen a claim, a two-step analysis must be conducted. Evans, at 283; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material when 'the credibility of the [new] evidence' is presumed. . . . Second, if the evidence is new and material," the claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Evans, at 283 (citations omitted); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). VA regulations specifically provide that: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection 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 (1999). The first question in determining whether the evidence is new and material is whether the newly presented evidence is actually "new" in the sense that it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of other evidence of record. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Struck v. Brown, 9 Vet. App. 145, 151 (1996). The second question is whether the evidence is "probative" of the issue at hand. Evans, 9 Vet. App. at 283. Evidence is "probative" when it "tend[s] to prove, or actually prov[es] an issue." See Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing BLACK'S LAW DICTIONARY 1203 (6TH ED. 1990). Determining what the "issue at hand" in a case is depends on the specified basis or bases for the last disallowance of the claim. Evans, 9 Vet. App. at 284. If such evidence is "so significant that it must be considered in order to fairly decide the merits of the claim," then the claim must be reopened. Hodge v. West, 155 F.3d 1356 (1998); 38 C.F.R. § 3.156(a) (1999). When determining whether the veteran has submitted new and material evidence to reopen the claim, consideration must be given to all of the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996), Glynn v. Brown, 6 Vet. App. 523 (1994). If the newly presented evidence is not "new," the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if "new" evidence is not "material" in the sense that it is not relevant to and probative of the "issue at hand," the claim to reopen fails on that basis and the inquiry ends. See Evans, at 286 (holding that "new" evidence was not relevant to and probative of a nexus between the claimed psychiatric disorder and an inservice injury or disease which was the "issue at hand" in the case, and therefore the "new" evidence was not "material" evidence and the inquiry ended, notwithstanding "old" evidence in the record pertaining to a nexus between the veteran's psychiatric disorder and his military service). Determining what the "issue at hand" in a case is depends on the evidence that was before the Board when it last denied the veteran's attempt to reopen his claim and the reasons for its denial. See Colvin, 1 Vet. App. at 174 (Material evidence is relevant to and probative of the issue at hand). In this case, the Board denied the veteran's attempt to reopen his claim for service connection for a gastrointestinal disorder in an October 1985 decision. The Board decision became final. 38 U.S.C.A. § 7104(b) (West 1991). The "issue at hand" in this case is whether a gastrointestinal disorder, including a peptic ulcer, was incurred during the veteran's active military service or the first post service year. In order for the veteran's claim to be reopened, evidence must have been presented, or secured, since the October 1985 Board decision denying reopening which is relevant to, and probative of, this issue. The evidence of record at the time of the October 1985 Board decision which was relevant to the veteran's claim for service connection for a gastrointestinal disorder was the veteran's service medical records, VA medical records and statements from private physicians. The veteran's service medical records reveal that he was treated once for an acute superficial gastritis in November 1955 and once for diarrhea in January 1956. His March 1956 separation examination notes prior treatment for "stomach trouble" but also noted that had been asymptomatic since treatment. No abnormalities of the gastrointestinal system were noted. In 1959 the veteran filed for service connection for a "stomach condition." Medical certificates from private physicians and medical records reveal treatment for gastrointestinal disorders beginning in approximately 1959. None of the medical evidence related the diagnosed gastrointestinal disorders to the veteran's active service and there was a break in continuity of approximately three years between his active service and his post service treatment. In this case the evidence submitted since the October 1985 Board decision that refers to the veteran's claimed gastrointestinal disorder includes: VA medical records from 1977 until present, letters from private physicians, and a November 1997 private psychiatric evaluation report. The Board concludes that this evidence is new because it was not before the Board when it denied the veteran's attempt to reopen his claim for service connection for a gastrointestinal disorder in October 1985. Although "new," this evidence is not "material" because it is not relevant or probative of the issue at hand, namely whether the veteran's current gastrointestinal disorders are related to his period of active service four decades ago. The evidence submitted since 1985 reveals treatment for gastrointestinal disorders from 1977 until the present at VA and private medical facilities. There are numerous different diagnoses of gastrointestinal disorders in these records including gastritis, peptic ulcer disease, and irritable bowel syndrome. This medical evidence essentially shows current diagnoses and treatment. The evidence does not relate any of the veteran's variously diagnosed gastrointestinal disorders to his period of active service and is the first diagnosis of peptic ulcer disease. Service connection for peptic ulcers may be granted on a presumptive basis. However, there is only a diagnosis of peptic ulcer many decades after service and far beyond the presumptive period of one year. The veteran continues to assert that his "stomach condition" is related to active service. The veteran's statements and assertions are competent to establish that he incurred a chronic gastrointestinal disorder during his active service. While lay testimony is competent to establish the occurrence of an injury, it is not competent to provide a medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108); Chavarria v. Brown, 5 Vet. App. 468 (1993) (an appellant's own recitations of his medical history does not constitute new and material evidence sufficient to reopen his claim when this account has already been rejected by the VA). There is a November 1997 private psychiatric evaluation report in which the psychiatrist recounted a medical history provided by the veteran of stress and chronic anxiety during service. This report indicates that the veteran suffers from an anxiety disorder and that the psychiatric disorder is related to his gastrointestinal disorder. This report is not new; rather it is cumulative of other evidence already of record. Moreover, this report appears to relate the veteran's gastrointestinal disorder to his psychiatric disorder rather than directly to service. As such, this evidence is not new and material. The veteran has been notified on numerous occasions over the past forty years by RO rating decisions, Statements of the Case, Supplemental Statements of the Case, and Board decisions that his claim for service connection for a gastrointestinal disorder has been previously denied and that he must submit new and material evidence to reopen the claim. Current treatment records are not material to the veteran's claim. As we noted, above the weakness of the veteran's claim is that there is no medical evidence relating current gastrointestinal disorders to his period of active service, 1954 to 1956. There is a break in continuity of approximately three years, from 1956 to 1959, between his active service and post service treatment for gastrointestinal disorders. The 1985 Board decision rejected evidence of gastrointestinal problems beginning in 1959 as being indicative of service incurrence. Material evidence in the present case would be medical records showing continuity of treatment for gastrointestinal disorders during this three year period or medical evidence specifically relating current gastrointestinal disorders to the veteran's active service. Based on the applicable law, regulations and court decisions, the additional evidence received since the October 1985 Board decision is not new and material. It is not so significant that it must be considered in order to fairly decide the merits of the claim and does not provide the required evidentiary basis to reopen the veteran's claim. The Board's prior denial of the attempt to reopen a claim for service connection for a gastrointestinal disorder remains final. See Colvin, 1 Vet. App. 171; 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156 (1999). Where new and material evidence has not been submitted to reopen a finally denied claim, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Graves v. Brown, 8 Vet. App. 522, 524-25 (1996); Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Graves, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence which is not only relevant to his claim for a psychiatric disorder to include a stomach disorder but which would, if submitted, be so significant that it must be considered in order to fairly decide the merits of the claim. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). (CONTINUED ON NEXT PAGE) ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection for a gastrointestinal disorder, that benefit remains denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals