Citation Nr: 0000027 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 97-13 491A ) 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 the veteran's claim for service connection for duodenal ulcer disease and, if so, whether all the evidence both old and new warrants the grant of service connection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from April 1941 to October 1945. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the San Juan, Puerto Rico, Department of Veterans (VA), Regional Office (RO), which found that new and material had not been submitted to reopen the veteran's claim for service connection for duodenal ulcer. The veteran filed a timely notice of disagreement, and was issued a statement of the case in May 1997. The RO received his substantive appeal in May 1997. FINDINGS OF FACT 1. The RO last denied service connection for duodenal ulcer disease, on a new and material basis, by rating decision issued in December 1973. The veteran did not initiate an appeal, and the decision became final. 2. The evidence added to the record subsequent to the December 1973 decision of the RO, and pertaining to his duodenal ulcer claim, consists of VA treatment records and the veteran's own statements on appeal. 3. Evidence submitted since the December 1973 rating decision, when viewed in the context of the entire record, is cumulative and redundant and is not probative and does not bear directly and substantially upon the issue at hand. CONCLUSIONS OF LAW 1. The December 1973 RO decision denying service connection for duodenal ulcer disease, on a new and material basis, is final. 38 U.S.C.A. §§ 7105 (West 1991); 38 C.F.R. § 3.104 (1999). 2. Additional evidence received since the San Juan VARO denied entitlement to service connection for duodenal ulcer disease in December 1973 is not new and material, and accordingly, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior, unappealed RO decisions are final and may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.200, 20.302 (1999). Where a final RO decision existed on a claim, that claim may not be thereafter reopened and allowed, and a claim based upon the same factual basis may not be considered by the Board. 38 U.S.C.A § 7104(b) (West 1991). The exception is that if new and material evidence is presented or secured with respect to the claim, the Secretary shall reopen the claim and review the former disposition. See 38 U.S.C. §§ 5108, 7104 (West 1991). The Federal Circuit has specifically held that the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and that before the Board may reopen such a claim, it must so find. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). In the case of Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998), the Federal Circuit held that in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), the United States Court of Appeals for Veterans Claims (Court) impermissibly ignored the definition of "material evidence" adopted by VA under 38 C.F.R. § 3.156(a) as a reasonable interpretation of an otherwise ambiguous statutory term (found under 38 U.S.C. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different government benefits scheme. Pursuant to the holding in Hodge, the legal hurdle adopted in Colvin and related cases, see e.g. Sklar v. Brown, 5 Vet. App. 140, 145 (1993), Robinette v. Brown, 8 Vet. App. 69 (1995) and Evans v. Brown, 9 Vet. App. 273 (1996), that required reopening of claim on the basis of "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the case was declared invalid. Thus, the Federal Circuit held in Hodge that the legal standard that remains valid was that contemplated under 38 C.F.R. § 3.156(a) that requires that in order for new evidence to be material, the new evidence should "bear[ ] directly and substantially upon the specific matter under consideration . . . [and must be] so significant that it must be considered in order to fairly decide the merits of the claim." In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that the two-step process set out in Manio, for reopening claims became a three-step process under the Federal Circuit's holding in Hodge, and is in effect a less restrictive standard based on the language of 38 C.F.R. 3.156(a). The Court held in Elkins that now the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the claim, the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. The Court further added that the Federal Circuit in Hodge effectively "decoupled" the relationship between determinations of well-groundedness and of new and material evidence by overruling the reasonable-possibility-of-a- change-in-outcome prong established by Colvin. There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Accordingly, the Board will consider whether new and material evidence has been submitted in accord with the holding in Hodge, supra. No prejudice to the veteran is exercised by the Board's appellate disposition herein because the more flexible Hodge standard accords the appellant a less stringent "new and material" evidence threshold to overcome. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993); see also Fossie v. West, 12 Vet. App. 1 (1998). The Board further observes that the Court has provided instruction in determining which evidence is to be considered as newly presented for purposes of deciding whether to reopen a claim. In Evans v. Brown, 9 Vet. App. 273 (1996), the Court explained that in order to reopen a previously and finally disallowed claim (whether decided by the Board or an RO), there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. The San Juan VARO denied the veteran's original claim for service connection for duodenal ulcer in November 1960 rating decision, finding that the disability was not incurred during wartime service. The veteran filed a timely appeal. However, the Board confirmed and continued the denial of the benefit sought in a September 1961 decision. The RO thereafter reconsidered the issue, on a new and material basis, in July 1963, January 1973 and December 1973 rating decisions. Applying the Court's instructions to the instant case, the Board's analysis of the evidence submitted for the purpose of reopening this claim must include a review of all of the evidence submitted subsequent to the December 1973 RO determination. The evidence of record at the time that the RO considered this issue in December 1973 consisted of the veteran's service medical records, VA treatment records, as well as his various statements and hearing testimony. A review of these records reveals that the veteran had an essentially normal evaluation on induction examination in April 1941. In March 1943, he was hospitalized with complaints of persistent dull epigastric pain for the prior six months, becoming worse about three-quarter of an hour after meals. He also complained of nausea and pain, worse after eating. Physical examination of the veteran at that time revealed that his abdomen was soft and obese with epigastric tenderness, but no palpable masses. Gastric analysis showed no hyperacidity. The condition cleared up with treatment during hospital course, and the veteran was returned to duty. The final diagnosis no disease, ill-defined condition of the gastrointestinal system, manifested by vague abdominal pains. The veteran was re-admitted in September 1943 for epigastric pain. Physical examination at that time revealed that there was a thick panniculus and a small area of tenderness in the mid- epigastrium. The condition apparently subsided with treatment and the veteran was discharged to duty. The veteran also had an essentially normal clinical evaluation on separation examination in October 1945. An October 1946 VA hospital report shows that the veteran was admitted with a history of abdominal pain of 18 hours duration, which gradually localized in the right lower quadrant. Physical examination of the veteran revealed, in pertinent part, tenderness in the right lower quadrant with some resistance and marked rebound tenderness. His laboratory analyses were negative except for the white blood count, which was 20,000 with 84% polyps. He thereafter underwent an appendectomy. A September 1949 VA hospital summary shows that the veteran was hospitalized for complaints of epigastric pain for the prior 4 days with associated mild flatulence. Physical examination of the veteran was essential negative. A gallbladder study showed a faint visualization without evidence of stone. The diagnoses were chronic cholecystitis, organism unknown, and trichuriasis of the colon. A June 1960 VA hospital summary shows that the veteran was re-admitted for another bout of right upper quadrant and epigastric pain. He was determined to have duodenal ulcer disease. This diagnosis was also made on VA hospitalization in July 1960, as well as on examination for compensation and pension purposes in September 1960. During a July 1963 informal hearing, the veteran testified that he believed that his in-service gastrointestinal symptoms were, in essence, an early manifestation of his duodenal condition. In January 1973, the veteran submitted a statement of his private physician, Dr. Roque, who indicated that he had been treating the veteran since the end of 1947. Dr. M. Otero Roque noted that since he had been treating him, the veteran had complained of a painful stomach with spastic pain, with episodes of burning and acid regurgitation, that frequently occurred at any time of the day or night. As the doctor recalled, a previous gastrointestinal tract study revealed no evidence of duodenal ulcer, but there was a deformity of it and gastritis. During a November 1973 personal hearing, the veteran testified that the stomach pain that he experienced in service remained unchanged following separation. He believed that this stomach condition that he had been suffering from was, in fact, due to his ulcer condition. Evidence submitted since the December 1973 decision of the San Juan RO, to include VA treatment records and examination reports, show treatment on occasion for duodenal ulcer and peptic ulcer disease. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Generally, to establish service connection there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97- 7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Positive medical evidence of a nexus may be rebutted, in an appropriate case, by medical evidence that demonstrates the significance of a lack of continuity of symptomatology. Rose v. West, 11 Vet. App. 169, 171-72 (1998). An alternative method, under 38 C.F.R. § 3.303(b), is that there may be a "chronic" disease, e.g., such as duodenal ulcer, which (1) manifests and is identified as such in service (or under 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991) and 38 C.F.R. §§ 3.307, 3.309 (1999) develops to a degree of 10 percent or more within one year from discharge from a period of service of 90 days or more, even if there is no in-service evidence thereof) and the same condition currently exists; or (2) a disease manifests itself during service (or in a presumptive period) but is not identified until later and there is a showing of post-service continuity of symptoms and medical evidence relates the symptoms to the current condition. Rose at 171- 72 (1998) (citing Savage v. Gober, 10 Vet. App. 488, 495-98 (1997)). Upon review of the evidence of record and consistent with the Federal Circuit's instructions in Hodge, supra the Board finds that the veteran has not submitted new and material evidence such as to reopen his claim for service connection for duodenal ulcer disease. The evidence previously of record did not establish that the veteran manifested chronic duodenal ulcer disease during active service or to a degree of 10 percent within one year after discharge therefrom. Indeed, the first clear diagnosis of duodenal ulcer disease was not made until June 1960, almost 18 years after his period of active duty service. As noted above, the veteran has proffered little in the way of 'new' evidence as to this claim inasmuch as it only shows ongoing treatment for the condition. Accordingly, the Board finds that new and material evidence has not been received with regard to the veteran's claim for service connection for duodenal ulcer disease. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). As the foregoing explains the need for competent evidence demonstrating that his duodenal ulcer disease was incurred in or aggravated by military service, or manifest to a degree of 10 percent within one year after discharge therefrom, the Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application to reopen his claim for service connection for this disability. Graves v. Brown, 8 Vet. App. 522, 524 (1996). Finally, because the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine may not be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for duodenal ulcer disease, the benefit sought on appeal remains denied. A. BRYANT Member, Board of Veterans' Appeals