BVA9505137 DOCKET NO. 93-113 13 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active service from August 1953 to January 1955. By decision in February 1991, the Board of Veterans' Appeals (Board) denied service connection for a stomach disorder. The current matter came before the Board on appeal from a January 1991 rating decision of the Muskogee Department of Veterans Affairs (VA) Regional Office (RO) which found that the claim was not reopened. CONTENTIONS OF APPELLANT ON APPEAL It is essentially argued that new and material evidence has been submitted to reopen the claim. 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(s). 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 claim for service connection for a stomach disorder is not reopened. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the issue before the Board has been obtained by the RO. 2. The Board denied entitlement to service connection for a stomach disorder in February 1991. 3. Additional evidence submitted since the Board's decision in February 1991 is not both new and material with respect to service connection for a stomach disorder. CONCLUSION OF LAW The decision of the Board in February 1991 which denied entitlement to service connection for a stomach disorder is final; and evidence received since that decision is not new and material. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Decisions of the Board are final. 38 U.S.C.A. § 7103 (a). Once the Board disallows a claim, the claim may not be reopened or allowed unless new and material evidence is presented or secured. 38 U.S.C.A. §§ 5108, 7104 (b). According to Colvin v. Derwinski, 1 Vet. App. 171 (1991), evidence is new when not merely cumulative of other evidence on the record, and is material when not only relevant and probative of the issue at hand, but when it also presents a reasonable possibility, when view in the context of all the evidence, both old and new, that it would change the outcome. Evidence is presumed credible for the limited purpose of deciding whether the claim is reopened. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, we find that the veteran's claim is plausible and, therefore, is well grounded. We are also satisfied that all relevant facts have been developed. 38 U.S.C.A. § 5107. The evidence which was of record at the time of the February 1991 Board decision included available military records, including service medical records, which showed evaluation and treatment for gastrointestinal complaints similar to those in civilian life. The final diagnosis was passive aggressive reaction manifested, in pertinent part, by somatic complaints for which no organic basis could be found. Also of record were affidavits from family members to the effect that the veteran's stomach problems had begun in service. A transcript of a hearing held at the RO shows that the veteran testified that his stomach problems began in service; that these problems continued after service; that after service, he first consulted a doctor about his symptoms, but only on an informal basis; and that after service, he first received medical treatment for the stomach problems in 1964. Private medical records showed that a diagnosis of peptic ulcer disease was made in 1964. Evidence which has been added to the record since the Board's 1991 decision consists of the following items: (1) a statement from the veteran to that prior to 1964, he had "been seen by doctors for my stomach ulcer" and had purchased medicine for the condition, but that these records were no longer available; (2) private medical records dated in the 1990's which show treatment for an unrelated condition, but which also refer to history of "acid peptic disease"; (3) the private medical records which showed that a diagnosis of peptic ulcer disease was made in 1964; (4) statements from the veteran's brother and from other individuals to the effect that he had had no stomach problems until he returned from the service; and (5) a report of VA examination in 1992 in which the veteran reported a history gastrointestinal symptoms due to peptic ulcer disease for many years; the diagnoses included history of duodenal ulcer. Items (2) and (5), insofar as they simply reflect diagnoses of peptic ulcer disease long after service, are cumulative of evidence previously considered. Insofar as they also reflect a long history of gastrointestinal symptoms claimed to be due to peptic ulcer disease, they are also cumulative of evidence previously considered. This evidence is not new. Item (3) is duplicative of evidence previously considered. Item (1) is new. For the first time, the veteran is claiming treatment for stomach ulcers prior to 1964. While the assertion that he was treated for a condition which he claims was peptic ulcer disease is presumed to be true for the purpose of deciding whether the claim is reopened, the assertion does not constitute probative evidence of the existence of peptic ulcer disease prior to 1964. According to Espiritu v. Derwinski, 2 Vet. App. 492 (1992), a lay statement is not sufficient to establish a medical diagnosis, in this case, of peptic ulcer disease. In addition, "(A)ny statement of appellant as to what a doctor told him is insufficient to establish a medical diagnosis." Warren v. Brown, 6 Vet. App. 4,6 (1993). The veteran has indicated that no records are available. His assertions are not material with respect to whether peptic ulcer disease was incurred in service or manifested to a compensable degree within one year thereof because, when considered in light of all the evidence, there is no reasonable possibility that the outcome would change. Item (4) is cumulative of other lay evidence previously considered by the Board and, additionally, does not constitute probative evidence of peptic ulcer disease. See Espiritu, 2 Vet. App. at 495. For the reasons set forth, the evidence submitted in support of the current claim is not found to be both new and material, and, accordingly, the claim for service connection for a stomach disorder is not reopened. ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for a stomach disorder is not reopened. NANCY I. PHILLIPS 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.