Citation Nr: 0001163 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 99-13 541A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active honorable service from December 1965 to December 14, 1967. He had additional service from December 15, 1967 to December 1969, which is considered to be under dishonorable conditions for purposes of VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision by the RO which found that no new and material evidence had been submitted to reopen a claim of service connection for peptic ulcer disease. Service connection for peptic ulcer disease had been previously denied by the Board in decisions of March 1985 and June 1988. The case is before the Board for appellate consideration at this time. FINDINGS OF FACT 1. Service connection for peptic ulcer disease was denied by the Board in decisions dated in March 1985 and June 1988. 2. The evidence submitted since the June 1988 Board decision which denied service connection for peptic ulcer disease is not new because it is redundant and duplicative of evidence which was of record at the time of the June 1988 Board decision. 3. The evidence submitted since the June 1988 Board decision which denied service connection for peptic ulcer disease is not material because it need not be considered in order to fairly decide the veteran's claim for service connection for peptic ulcer disease. CONCLUSION OF LAW The additional evidence received subsequent to the June 1988 Board decision denying service connection for peptic ulcer disease is not new and material; the veteran's claim for service connection for peptic ulcer disease is not reopened; and the June 1988 Board decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence which was of record at the time of the June 1988 Board decision denying service connection for peptic ulcer disease may be briefly summarized. On the veteran's December 1965 examination prior to service entrance, no pertinent abnormalities were noted. Review of the service medical records reveal that the veteran was seen in March 1966 with a two-week history of complaints of abdominal cramps after meals. Over the two days previous to treatment he had had lower abdominal cramping pains with associated nausea and emesis. He was treated with medication. On a March 1967 physical examination to replace lost medical records, no pertinent abnormalities were noted. On an August 1969 examination prior to separation from service, no pertinent abnormalities were noted. In December 1974 the veteran was hospitalized at a private medical facility due to extreme weakness, abdominal cramps, and the passage of dark stools. The veteran gave a history of epigastric pain during the previous three to four months. These pains were reportedly relieved with food and were intensified by hunger. The discharge diagnosis was duodenal ulcer with acute hemorrhage and secondary anemia. VA clinical records reflect subsequent treatment for peptic ulcer disease. In April 1984, the veteran was hospitalized at a VA facility for the treatment of peptic ulcer disease with an upper gastrointestinal bleed. The veteran gave a history of peptic ulcer disease that was first diagnosed in 1974. In April 1987 the veteran was again hospitalized at a VA facility for symptoms which included nausea and melena. The diagnoses included acute gastrointestinal bleeding, probably secondary to peptic ulcer disease and anemia. During an October 1987 RO hearing, the veteran said that he had experienced symptoms of abdominal pain, cramping, nausea, and vomiting for approximately one year prior to seeking treatment during service. He also said that he was provided antacids during the remainder of his service that alleviated his symptoms. He said that his service separation examination had been rushed and did not reflect his stomach symptomatology at that time. He also said that there were no medical records of treatment for gastrointestinal symptoms from the time of his 1967 service discharge to 1974. The evidence which has been associated with the claims folder since the June 1988 Board decision denying service connection for peptic ulcer disease includes VA clinical records which reflect treatment for peptic ulcer disease in 1987 and 1988. In June 1998, a copy of a report of a December 1974 private physical examination was received. The veteran answered no in regard to a question as to whether he had a stomach ulcer or a duodenal ulcer . In June 1998, a statement was received from J.S. Simmons, M.D., dated in December 1974. Doctor Simmons stated that the veteran had been under his private treatment since November 1974. Copies of clinical records were also received in June 1998 which showed that the veteran was cleared to return to work in December 1974 after treatment for a bleeding peptic ulcer. The United States Court of Appeals for Veterans Claims (Court) has held that, once a denial of service connection becomes final, the claim cannot be subsequently reopened unless new and material evidence has been presented. The Board must perform a two step analysis when the veteran seeks to reopen a claim based on new and material evidence. First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the veteran has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the claim in the light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 144 (1991). In determining whether new and material evidence has been presented warranting reopening of the claim, consideration is given to all the evidence submitted since the last denial of the claim, whether on the merits or on the basis of failure to submit new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). It is apparent that the June 1988 Board decision was the last determination of the veteran's claim for service connection for peptic ulcer disease prior to the current attempt to reopen the claim.. Under the provisions of 38 C.F.R. § 38 C.F.R.§ 3.156(a), in order to reopen claims of service connection, there must be added to the record new and material evidence which, assuming its credibility, bears directly and substantially upon the specific matter under consideration, which is neither cumulative or 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. The Board notes that, until recently, case law of the United States Court of Appeals for Veterans Claims (Court) mandated that the third question to be resolved in the first step of the Manio analysis was whether, in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. Colvin v Derwinski, 1 Vet. App. 171, 174 (1991); See Evans v. Brown, 9 Vet. App. 273, 283 (1996). However, the United States Court of Appeals for the Federal Circuit has recently held that this judicially created standard was inconsistent with the language of 38 C.F.R.§ 3.156(a), cited above, and has overruled the extension of the Manio analysis that was first articulated by the Court in Colvin, supra. See Hodge v. West; 155 F. 3d. 1356 (1998). Review of the evidence of record at the time of the June 1988 Board decision indicated that the veteran had one episode of epigastric cramping during service. No diagnosis of peptic ulcer disease was rendered on that occasion and there were no subsequent gastrointestinal complaints noted either during service or on examination prior to service discharge. The first post service evidence of peptic ulcer disease dates from late 1974, about 7 years after the termination of the veteran's period of active honorable service. Review of the record subsequent to the Board's 1988 decision fails to reveal any clinical documentation of peptic ulcer disease prior to 1974. Additionally, there is no clinical evidence that relates the peptic ulcer disease then diagnosed to service. This evidence presents essentially the same clinical picture as was before the Board in 1988. Therefore, the recently submitted evidence is redundant and cumulative since it shows no more than the development of peptic ulcer disease more than one year after service. This evidence is not new, and is clearly not of such significance as to require its consideration in order to fairly decide the merits of the claim for service connection for peptic ulcer disease. In view of the foregoing, the Board concludes that new and material evidence has not been submitted to reopen a claim for service connection for peptic ulcer disease and the veteran's claim for service connection for this disability is denied. ORDER New and material evidence not having been submitted, the veteran's claim for service connection for peptic ulcer disease is not reopened and the veteran's claim is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals