Citation Nr: 0006401 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-11 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim of service connection for a psychiatric disability. 2. Whether new and material evidence has been submitted in order to reopen a claim of service connection for a stomach disability. 3. Whether new and material evidence has been submitted in order to reopen a claim of service connection for residuals of frozen feet. (The issue of clear and unmistakable error (CUE) in Board decisions of April 1982, June 1984, July 1985, August 1987, September 1988, April 1990, September 1994, and February 1998 is the subject of a separate appellate decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from April 1944 to February 1946. He served in World War II in the Central Europe campaign. This appeal arises before the Board of Veterans' Appeals (Board) from a September 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the veteran's application seeking to reopen claims of service connection for a psychiatric disability, a chronic stomach disability and residuals of frozen feet. Claims with regard to all three disabilities have previously been denied by the Board in June 1984, July 1985, August 1987, September 1988, April 1990 and September 1994. The Board also denied claims regarding entitlement to service connection for a nervous disorder and a stomach disorder in April 1982. In October 1997, clarification was sought as to whether the veteran wished to have a Board hearing. In November 1997, the veteran clarified that he no longer wanted a hearing. The Board issued a decision in February 1998 determining that new and material evidence had not been submitted in order to reopen the veteran's three claims of service connection for a psychiatric disability, a chronic stomach disability, and residuals of frozen feet. Thereafter, the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 1999, the Secretary of Veterans Affairs, represented by the Office of General Counsel, and the veteran, represented by private counsel, filed a document entitled "Joint Motion for Remand, and for Stay Further Proceedings." Thereafter, the Court ordered that the joint motion be granted and that the Board's decision be vacated and remanded for consideration pursuant to Hodge v. West, 155 F. 3d 1356 (Fed.Cir. 1998). The Court instructed the Board to apply the regulatory definition of new and material evidence contained in 38 C.F.R. § 3.156 (a). FINDINGS OF FACT 1. In September 1994, the Board denied the appellant's application to reopen his claim for service connection for a psychiatric disability, a stomach disability, and residuals of frozen feet. 2. The additional evidence associated with the claims folder since the September 1994 Board decision is not new evidence as compared to the evidence reviewed by the Board in September 1994, but rather, cumulative and redundant evidence. CONCLUSIONS OF LAW The additional evidence received subsequent to the September 1994 Board decision which denied the appellant's application to reopen his claims for service connection for a psychiatric disability, a stomach disability, and residuals of frozen feet is not new and material, and the claims are not reopened. 38 U.S.C.A. § § 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran's service medical records show that he had a normal psychiatric examination at his April 1944 induction examination as well as normal examinations of his feet and abdominal viscera. In May 1944 the veteran was seen at a medical facility complaining of vague abdominal pain. He was noted to have general abdominal pain following meals with the same history six years earlier. A diagnosis of rule out ulcer was given. Records show that the veteran underwent a gastrointestinal series in June 1944. A July 1944 service medical record reflects the veteran's complaints of murmurs, pain, weakness, nausea and vomiting. The physician stated that he felt that the veteran was "a psychoneurotic with anxiety trend." At his separation examination in February 1946 the veteran had normal psychiatric, abdominal wall and viscera, and feet examinations. At a VA examination conducted in May 1980 the veteran reported having had stomach trouble since 1944. He said that he was never given a diagnosis even though a gastrointestinal series had been performed. His abdomen was normal on examination and he demonstrated normal psychiatric findings. He was diagnosed as having undiagnosed stomach problems by history. At a VA examination in July 1980, the veteran was diagnosed with depression. He reported symptoms of depression for years since World War II. The veteran filed an initial claim of service connection for a psychiatric disability and a stomach disability in July 1980. In a letter received in August 1980, Dr. S. J. noted that the veteran had been seen in May 1980, June 1980, and August 1980 for nerves. In a statement dated August 1980, the veteran stated that he had a nerve condition, which he believed began during duty on a LST in the English Channel and ran into mines and suffered damage. He stated that he had had gastro-intestinal trouble since military duty beginning about 1944. He stated that he had had not had specific medical treatment since the military as he had learned to watch what he ate. In January 1981 the RO received statements from two of the veteran's co-workers stating that while working with the veteran in 1976 and 1980 they were aware that he had stomach, kidney and nervous problems. Also in 1981 the RO received statements from two of the veteran's family members stating that the veteran had had nervous and stomach problems ever since service. On file is a December 1980 medication list submitted by a private physician showing that the veteran had been prescribed medication for nervousness in 1973. Dr. P.R.M., submitted a statement to the RO in December 1980 stating that the veteran had been treated at a private clinic in July and August 1980 for a nerve problem. In March 1981, the veteran stated that he was treated at various hospital during service. He stated that he was treated at various hospitals after service, beginning in 1946, but that they had closed down. He stated that he was treated at the "ACL RR" hospital from 1946-1950 until they closed. He stated that the doctors had died, and his records had been destroyed. He stated that the Old Memorial Clinic had been closed and the records had been destroyed. He stated that the Rocky Mountain Sanitarium treated him in the 1950s and 1960s, and that several doctors had been treating him since then. In April 1981 the RO received statements from the veteran's friends and family stating that the veteran began seeking private treatment for bad nerves, kidney problems and stomach problems right after service, beginning in 1946. These statements indicate that he had received treatment at the Atlantic Coastline Hospital in North Carolina. Also in April 1981 the veteran submitted a statement saying that he had been treated in his early years after service at Seaboard Coastline Hospital, but that the hospital had been closed for many years and that his records had been destroyed. He said that the doctors who treated him at that time were dead and the only evidence he could submit in this regard would be affidavits from people who knew of his health problems in those days. In two statements dated in 1981 from Dr. L.R., it is noted that the veteran first received treatment in 1947 for enterospasm and irritable bowel syndrome for which he was given medication. It is also noted that the veteran had an "old history" of moderately severe nervousness and had taken Valium in the past. In a statement received by the RO in February 1982, a fellow serviceman of the veteran stated that he had remembered that the veteran had received treatment in service for his stomach in 1944 and for frostbite during the Winter of 1945. In an April 1982 decision, among other claims, the Board denied the veteran's claims of entitlement to service connection for a nervous disorder and for a stomach disorder. The Board determined that an episode of abdominal discomfort in service was acute and transitory in nature and was fully resolved more than one year prior to separation from service. The Board also determined that an episode of nervousness observed in service in 1944 was acute and transitory in nature and was fully resolved prior to service separation. In June 1982 the RO received a statement for another fellow serviceman of the veteran stating that the veteran had been very nervous in service and had bad stomach trouble. In a statement dated July 1982, the veteran asserted that treatment records from when he was overseas in Germany were destroyed by the fire in St. Louis. In August and September 1982, the RO received numerous statements from the veteran's friends and family to the effect that he did not have any physical or mental problems prior to service, but that after service he had noticeable problems with his stomach and nerves. Dr. L. R. submitted a statement dated September 1982. He stated that according to his records, the veteran was seen by him in 1946 due to enterospasm and a nervous condition. He stated that he had treated the veteran for irritable bowel syndrome with enterospasm in 1981, and that the veteran was taking Librium as needed. Dr. W. W. submitted a statement dated September 1982, wherein he indicated that since May 1973, the veteran had been taking medication for anxiety state. For the period from October 1982 to May 1983, the RO received numerous statements from the veteran's fellow servicemen along with additional statements from his friends and family. The veteran's fellow serviceman said in their statements that they were aware that the veteran suffered and sought treatment for nerves, stomach problems and frostbite in service. They also said that it had been extremely cold overseas. These statements include a February 1982 statement from N. R. who stated that he remembered the veteran from service because one of his duties was to take care of the sick book roll. They also include a February 1982 statement from a physician (received in February 1983) who said that he remembered treating several men for frostbite and stomach trouble in service, and while it was difficult to remember each individual that he had treated, he was sure that the veteran was one of them, although he had no records to prove it. They also include a March 1983 statement from the chaplain of the veteran's battalion who said that he knew that the veteran had been "beset with numerous ailments in service which caused him to seek medical aid and also to seek counsel as the battalion chaplain." He further said that the veteran had sought medical treatment for frostbite due to the freezing cold weather. The veteran's friends and family indicated in their statements that they had known the veteran both prior to and after service, and that after service he experienced problems with his stomach and nerves. In June 1984, the Board denied the veteran's claim of entitlement to service connection for a nervous disorder, a stomach disorder, and for residuals of frozen feet. The Board determined that evidence regarding a stomach disorder and a nervous disorder did not contain any new or material fact to support entitlement to service connection for a stomach or a nervous condition. The Board also determined that a chronic foot disability was not currently manifested. For the period from July 1984 to March 1985, the RO received numerous statements from the veteran's fellow servicemen along with additional statements from his friends and family. The veteran's fellow serviceman said in their statements that they were aware that the veteran suffered and sought treatment for nerves, stomach problems and frostbite in service. They also said that it had been extremely cold overseas. The veteran's friends and family indicated in their statements that they had known the veteran both prior to and after service, and that after service he experienced problems with his stomach and nerves. In July 1985, the Board denied the veteran's claims of entitlement to service connection for a nervous disorder, a stomach disorder, and for residuals of frozen feet. The Board determined that evidence regarding a stomach disorder, a nervous disorder, and frozen feet received since the June 1984 Board decision did not contain any new or material fact to support entitlement to service connection for a stomach disorder, nervous disorder, or residuals of frostbite of the feet. In April 1986, Dr. L. stated that the veteran had been seen in 1985 for irritable bowel syndrome, old pyelitis, and cystitis. For the period from September 1985 to January 1987, the RO received numerous statements from the veteran's fellow servicemen along with additional statements from his friends and family. The veteran's fellow serviceman said in their statements that they were aware that the veteran suffered and sought treatment for nerves, stomach problems and frostbite in service. They also said that it had been extremely cold overseas. The veteran's friends and family indicated in their statements that they had known the veteran both prior to and after service, and that after service he experienced problems with his stomach and nerves. In August 1987, the Board denied the veteran's claims of entitlement to service connection for a psychiatric disability, a stomach disability, and for residuals of frozen feet. The Board determined that the evidence that had been submitted subsequent to the July 1985 Board decision was essentially similar to evidence that was already of record, and which had previously been considered by the Board, or was new, but did not establish that a psychiatric disability, a stomach disability, or residuals of frozen feet were present during service. In October 1987, a statement was received from a fellow serviceman of the veteran's who stated that the veteran was treated for frozen feet and a nervous stomach in field hospitals in Belgium and Germany. In September 1988, the Board denied the veteran's claims of entitlement to service connection for a psychiatric disorder, a stomach disability, and for residuals of frozen feet. The Board determined that evidence submitted since the Board decision of August 1987 was cumulative in nature and did not establish that a chronic psychiatric disorder, chronic stomach disorder, or residuals of frozen feet were incurred during active duty. In October 1988, a fellow serviceman stated that he had served with the veteran in Germany, and that the veteran was sick with a bad stomach, nervousness, and frostbite. In March 1989, a statement was received from a friend of the veteran's who stated that she had known the veteran for over 50 years, and that after service, he had health problems with his feet and stomach. In April 1990, the Board denied the veteran's claims of entitlement to service connection for a psychiatric disorder, a chronic stomach disorder, and for residuals of frozen feet. The Board determined that the evidence added to the record since the last Board decision did not establish that the veteran had a chronic psychiatric disorder, chronic stomach disorder, or residuals of frozen feet of service origin. For the period from September June 1990 to September 1992, the RO received numerous statements from the veteran's fellow servicemen along with additional statements from his friends and family. The veteran's fellow serviceman said in their statements that they were aware that the veteran suffered and sought treatment for nerves, stomach problems and frostbite in service. They also said that it had been extremely cold overseas. The veteran's friends and family indicated in their statements that they had known the veteran both prior to and after service, and that after service he experienced problems with his stomach and frozen feet. On file is the veteran's medication list completed by a private physician, Dr. W. W. in June 1992. This list shows that Prozac was prescribed in August 1988 and that pepcid was prescribed in May 1990. Additional private medical records received by the RO in July 1992 show that the veteran had been prescribed Valium in February 1987 and was seen in July 1992 for irritable bowel syndrome and depression. At a VA neuropsychiatric examination in August 1992, the veteran reported being anxious and tense for the past 50 years and had bad nerves ever since eating bad food in service. He said that he took Valium on an as needed basis. On examination the veteran was alert, cooperative and friendly, with no loose associations or flight of ideas. His mood was pleasant and calm and his affect was appropriate. He was diagnosed as having anxiety disorder, NOS. Also in August 1992 the veteran underwent a VA gastrointestinal examination. At this examination the veteran denied having any present complaints, but said that he had been bothered for many years by his stomach, including an occasional intermittent gassy feeling. His examination included an upper gastrointestinal series which was normal. He was diagnosed as having history of irritable bowel syndrome, remote, occasional, mild, presently asymptomatic. At a VA cardiovascular examination in August 1992 the veteran said that his feet felt cold in the wintertime and that he wore socks to bed. On examination the veteran's skin temperature was within normal variation and he had no paresthesia. Skin appearance was smooth and thin and normal in color. The veteran was diagnosed as having "Examination sequale to cold injury to feet. Not found on this evaluation." In September 1992 the veteran's youngest son submitted a letter to the RO stating that to his earliest recollection his father has had many health problems including sleep difficulty, severe stomach ailments and problems with his feet. He said that it was his understanding that these problems were a direct result of the veteran's service in World War II. Also in September 1992 a letter was received by the RO that was addressed to the veteran. In this letter the author referred to an explosion on board a ship in a vicinity that was being bombed. In October 1992 the RO received a statement from a private physician dated the same, containing a diagnosis of irritable bowel syndrome and depression. In September 1994 the Board denied the veteran's application to reopen claims of service connection for a psychiatric disability, a chronic stomach disability and residuals of frozen feet. The Board determined that the first medical evidence of a chronic acquired psychiatric disorder or a chronic gastrointestinal disorder was many years after the veteran's separation from service, and that residuals of frozen feet had not been shown. The Board also determined that the evidence received subsequent to the April 1990 Board decision was cumulative in nature and repetitive of facts previously considered and did not raise a reasonable possibility of changing the outcome with respect to service connection for a chronic acquired psychiatric disorder, a chronic stomach disorder, or the residuals of frozen feet. Evidence submitted after the 1994 Board decision is summarized below. The veteran submitted statements from 1995 to 1997 wherein he stated that he experienced stomach, nerve, and frozen feet problems in service and was treated for such problems in service. He stated that he had submitted new evidence to support this. Specifically, in a January 1995 statement, the veteran contended that lots of his records were destroyed by the fire in St. Louis. He referred to the statements he had submitted from fellow servicemen, including two Army doctors and his chaplain who wrote that the veteran had received treatment in service. In a December 1995 statement, the veteran contended that he was treated at the Atlantic CoastLine Railroad hospital in 1946 and 1947 until they closed in January 1961. He stated that these records had been destroyed. He referred to a statement by a doctor who treated him in 1946 and 1947. He stated that he had been treated in January 1945 at a base hospital in England. He stated that he was treated for stomach and nerve disorders and frozen feet in Rouen France in February 1945. He stated that he was treated in March 1945 for these same conditions. He indicated that he was treated for the conditions in Munich in 1945. He stated that he was treated in Nancy, France in February 1946 for stomach and nervous disorders, and on the USS Victory Ship in February 1946 for the same conditions. In his February 1996 Substantive Appeal, the veteran contended that during service he was treated at field hospitals and at medical units away from his outfit, so that his medical records were never sent back to his outfit. He contended that his psychiatric disorder came from his experiences on the LST during service. Statements from servicemen who served with the veteran were received by the RO in 1994, 1995, and 1996. They state that they were aware that the veteran had had problems with and received treatment for stomach ailments, nerves and frostbite. In a November 1994 statement, a serviceman said that he had had the duty of operating a sick book for the battalion, and that he remembered that the veteran had reported very frequently to sick call. In a March 1996 statement, a fellow serviceman (a doctor) said that he remembered seeing the veteran and other servicemen in the sick bay. The Board issued a decision in February 1998 determining that new and material evidence had not been submitted in order to reopen the veteran's three claims of service connection for a psychiatric disability, a chronic stomach disability, and residuals of frozen feet. As noted in the introduction of this document, in January 1999, the Court reversed and remanded such decision for consideration pursuant to Hodge v. West, 155 F. 3d 1356 (Fed.Cir. 1998). The Court instructed the Board to apply the regulatory definition of new and material evidence contained in 38 C.F.R. § 3.156 (a). Analysis As noted above, in September 1994, the Board denied the veteran's application to reopen his claims of entitlement to service connection for a psychiatric disability, a chronic stomach disability, and residuals of frozen feet. Under applicable law and VA regulations, that decision is final, and the veteran's claims may not be reopened and reviewed unless new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156 (1999). Under 38 C.F.R. § 3.156 (a) (1999), new and material evidence means evidence not previously submitted to agency decisionmakers 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. There is no requirement, however, that in order to reopen a claim, that the new evidence, when viewed in the context of all the evidence, both new and old, creates a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). The United States Court of Appeals for Veterans Claims (Court) has held that the Board is required to review all of the evidence submitted by a claimant since the last final disallowance of a claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In light of Hodge, in Elkins v. West, 12 Vet. App. 209 (1999) (en banc), and in Winters v. West, 12 Vet. App. 203 (1999) (en banc), the Court set forth a three-part test for the adjudication of previously denied claims to which finality had attached. Under the new Elkins test, the Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally decided claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Elkins at 218-219; Winters at 206. The decision in this case will not address the question of whether "material evidence" has been added to the record. As will be explained further below, the evidence added in support of the request to reopen the claim is entirely cumulative and redundant, and, therefore, fails to meet the standard for "new" evidence under 38 C.F.R. § 3.156. For this reason, there is no need to assess the materiality of the evidence. Accordingly, the changes in law resulting from Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998), do not affect the outcome of this decision. The evidence associated with the claims folder subsequent to the September 1994 Board decision (holding that no new and material evidence had been presented to reopen the claim for service connection for a psychiatric disability, a chronic stomach disability, and residuals of frozen feet) includes the appellant's statements as noted above, as well as numerous statements from servicemen who stated that during service, the veteran had problems with, and received treatment for stomach ailments, nerves, and frostbite. In particular, in November 1994, a serviceman (N. R.) stated that he had had the duty of operating a sick book for the battalion, and that he remembered that the veteran reported very frequently to sick call. Also, in March 1996, a fellow servicemen (Dr. J. A.) stated that he remembered seeing the veteran and other servicemen in sick bay. The evidence submitted by the veteran subsequent to the September 1994 Board decision relates entirely to facts that were already established by the appellant prior to the September 1994 Board decision. Prior to September 1994, there were already numerous statements from servicemen to the effect that the veteran had problems with and received treatment for stomach ailments, nerves, and frostbite during his time in service. The statement by N. R. is similar to the statement that he submitted in February 1983 when he stated that he remembered the veteran because one of his duties was to take care of the sick book roll. The statement from Dr. J. A. that he remembered seeing the veteran in sick bay is similar to a February 1982 statement (received in February 1983) from a physician who stated that he was sure that he remembered treating the veteran for frostbite and stomach trouble in service. As the statements from the servicemen relate to facts that were already established prior to the September 1994 Board decision, they are determined to be "cumulative and redundant," and can not be considered "new" evidence pursuant to 38 C.F.R. § 3.156. The veteran's own statements are also determined to be "cumulative and redundant" and can therefore not be considered "new" pursuant to 38 C.F.R. § 3.156. The veteran contented in January 1995 that service medical records were destroyed by the fire in St. Louis; he also made such a contention in a July 1982 statement. The veteran contended in a December 1995 statement that he was treated at the Atlantic Coast Line Railroad hospital in 1946 and 1947 and was treated there until they closed in January 1961; he also made such a contention in a March 1981 statement. In the veteran's February 1996 Substantive Appeal, he contended that his psychiatric disorder came from his experiences on a LST during service; he also made such a contention in an August 1980 statement. Regarding the veteran's contentions that he received treatment at numerous field hospitals in service, he has consistently made such claims at various points prior to the September 1994 Board decision. The deficiency in the case then, as well as now, results from the absence of medical evidence pertaining to whether any current psychiatric, stomach, or frostbite are connected to disease or injury in service. The appellant has merely added redundant evidence pertaining to treatment that he received in service for stomach ailments, nerves, and frostbite, or else asserted claims that he has made before. Because the evidence added to the record is cumulative and redundant, the evidence cannot meet the test for new evidence, as defined in 38 C.F.R. § 3.156, and no further analysis is required with respect to the question of whether the additional evidence is "material." Smith v. West, 12 Vet. App. 312, 315 (1999). In the absence of new evidence, the request to reopen the claims of service connection for a psychiatric disability, a stomach disability, and for residuals of frozen feet necessarily falls short of the standard established in 38 C.F.R. § 3.156. Accordingly, the request to reopen the claims must be denied. ORDER New and material evidence having not been presented, the claims for service connection for a psychiatric disability, a stomach disability, and for residuals of frozen feet are not reopened; the appeal is denied. G. H. SHUFELT Member, Board of Veterans' Appeals