BVA9505983 
DOCKET NO.  91-14 936     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

Whether new and material evidence has been received to reopen a
claim for entitlement to service connection for the cause of the
veteran's death.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

The appellant and her son

ATTORNEY FOR THE BOARD

Thomas H. Tousley, Associate Counsel

INTRODUCTION

The veteran had active military service from November 1940 to
October 1945.  He died in August 1965.

By decisions dated in September 1966 and February 1971, the Board
of Veterans' Appeals (Board) denied the appellant entitlement to
service connection for the cause of the veteran's death.  In
March 1980, pursuant to the appellant's request, the Board
reconsidered its February 1971 decision.  In the reconsideration
decision, the Board denied service connection for the cause of
the veteran's death on the basis that no reversible error had
been committed in the Board's February 1971 decision.  It appears
that subsequent to the Board's March 1980 reconsideration
decision, the veteran's original claims folder was lost.

In October 1988, the appellant attempted to reopen her claim with
the Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania.  The RO reconstructed the veteran's
claims folder.  The appellant's Notice of Disagreement was
received by the RO in April 1990.  The RO issued a statement of
the case in May 1990.  The appellant's substantive appeal was
received by the RO in July 1990.  The appellant testified before
a traveling section of the Board in October 1990 at the
Pittsburgh RO.  The issue before the traveling section of the
Board at that time was entitlement to service connection for the
cause of the veteran's death on a new factual basis.  The case
was docketed at the Board in March 1991.  Subsequent to the case
being docketed at the Board, the veteran's reconstructed claims
folder was lost.  The RO and the Board have been unable to find
either the veteran's original or reconstructed claims folder.
The veteran's claims folder was again reconstructed.

The second reconstructed claims folder contains a copy of the
last page of the Board's September 1966 decision, a copy of the
Board's March 1989 reconsideration decision, the transcript of
the October 1990 hearing before the traveling section of the
Board, and other miscellaneous documents.  The information stated
in the above paragraphs was obtained from these documents, the
hearing notes of the members of the Board's traveling section,
and the Board's briefface to the case which was created from the
first reconstructed claims folder when the case was docketed at
the Board in March 1991.  For reasons to be provided in the
Reasons and Bases section of this decision, the Board will render
a decision based on this evidence.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that service connection for the cause of
the veteran's death should be established on two bases.  First,
she asserts that the veteran experienced dysentery during service
which later caused hemorrhoids which resulted in
hemorrhoidectomies which caused ulcerative colitis.  Second, she
contends that the veteran's service-connected scrub typhus caused
his hemorrhoids which caused his ulcerative colitis.

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.
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 new and material evidence has not been submitted to
reopen the appellant's claims for service connection for the
cause of the veteran's death.

FINDINGS OF FACT

1.  By a decision dated in September 1966, the Board finally
denied the appellant's claim for entitlement to service
connection for the cause of the veteran's death.

2.  Some of the evidence received since the Board's September
1966 final decision is new, but not material because the evidence
does not provide a reasonable possibility of a change in the
outcome of the Board's decision.

CONCLUSION OF LAW

The appellant has not reopened her claim for entitlement to
service connection for the cause of the veteran's death.  38
U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.165, 20.1100,
20.1104, 20.1105 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that when the Board considered this case in 1966,
the Board had before it the veteran's service medical records,
private treatment records, VA medical records, hospitalization
records, testimony of the veteran at an RO hearing, and testimony
of the appellant and friends.  When the Board considered this
case in February 1971, in addition to this evidence, the Board
had copies of articles from medical textbooks submitted by the
appellant's representative, statements from friends of the
veteran, and testimony of the appellant and two relatives at a
hearing on appeal.  The majority of the evidence in this case has
been previously reviewed by the Board.  In addition, as
previously noted, the Board has a copy of the March 1990
reconsideration decision which contains a detailed description of
the previously reviewed evidence.

However, in view of the VA's loss of most of the records in this
case, and the Board's delay in rendering a decision in the
current appeal, the Board recognizes that it has a heightened
responsibility to thoroughly explain the reasons and bases for
its decision.  See 38 U.S.C.A. § 7104(d) (West 1991); cf. O'Hare
v. Derwinski, 1 Vet.App. 365, 367 (1991) (the Board has a
heightened duty to explain the reasons for its decision when the
veteran's service medical records are missing).

Although the veteran's second reconstructed claims folder does
not contain the Notice of Disagreement, the Statement of the
Case, and the Substantive Appeal, based on the information
obtained from the documents described in the Introduction section
of this decision, the Board determines that the appellant
perfected her appeal to the Board.  See 38 C.F.R. §§ 20.200,
20.302 (1994).

I.  Due Process

In light of the loss of the appellate documents in this current
appeal (e.g., Statement of the Case etc.), before the Board can
decide the issue on appeal, it must be determine whether the due
process rights of the appellant have been fulfilled.  Since she
submitted a Notice of Disagreement in April 1990 following her
request in September 1988 to reopen her claim, it can be assumed
that the RO denied her request and provided her with notice of
the denial.  Furthermore, since she appeared with her service
organization representative and testified before a traveling
section of the Board, it can be assumed that she was notified of
her right to representation and to a personal hearing.  See 38
C.F.R. §§ 3.103(a), (c), (e), 19.25 (1994).  The October 1990
hearing transcripts indicates she was aware of her right to
submit evidence.  See 38 C.F.R. § 3.103(d) (1994).

As previously noted, information recorded at the time the case
was docketed at the Board in March 1991 indicates the RO issued a
Statement of the Case in May 1990.  See 38 C.F.R. § 19.26 (1994).
The Board notes that there was no mention by the appellant or by
her representative at the October 1990 hearing of the failure of
the RO to issue a Statement of the Case.  The Board finds that
the presumption of regularity of the fulfillment of
administrative duties has not been rebutted in this case, see
Chute v. Derwinski, 1 Vet.App. 352, 353 (1991), and determines
the Statement of the Case was issued to the appellant.

Since the record does not contain the Statement of the Case, the
Board is unable to determine whether the Statement of the Case
contained the information required by 38 C.F.R. § 19.29 (1994):
a statement of the issue being appealed, a summary of the
evidence, a summary of the applicable laws and regulations and
how they affect the RO's determination, and the reasons for the
RO's determination.  The Board must determine whether the record
shows the appellant has been provided this information.

The Board will first determine whether the appellant has been
informed of the issue being appealed.  Based on the October 1990
hearing notes of the members of the traveling section of the
Board, it is apparent that the RO did not reopen the appellant's
claim because the Board members framed the issue on appeal as
whether service connection for the cause of the veteran's death
could be established on a new factual basis.  The same hearing
notes indicate that during a prehearing conference with the
appellant and her representative, the need for the appellant to
establish a new factual basis in this case was discussed.
Therefore, the appellant was advised of the issue being appealed
prior to docketing of the case at the Board.

Next, the Board must determine whether the appellant has been
advised of the pertinent laws and regulations regarding the
establishment of service connection for the cause of the
veteran's death, and regarding the reopening of a previously
denied claim.  As previously noted, the record contains the last
page of the Board's first decision in this case, rendered in
September 1966.  That page contains the Board's findings of fact
and the conclusions of law.  The conclusions of law are followed
by citations to the appropriate laws and regulations then in
effect regarding the issue of entitlement to service connection
for the cause of the veteran's death.  As also previously noted,
the record contains a copy of the Board's entire March 1980
reconsideration decision.  On page 5 of that decision, the same
laws and regulations were cited with a brief summary of their
provisions.

In pertinent part, 38 U.S.C. §§ 310, 331 (1976) concerned the
requirements for establishing service connection for a disability
resulting from disease or injury incurred in or aggravated by
service.  These provisions, 38 U.S.C. §§ 310, 331 (1976), have
since been recodified into 38 U.S.C.A. §§ 1110, 1131 (West 1991),
respectively, but ssubstantively have remained the same.
Further, 38 U.S.C. § 410 (1976) and 38 C.F.R. § 3.312 (1979)
concerned the requirements for establishing service connection
for the cause of the veteran's death.  38 U.S.C. § 410 (1976) has
been recodified in 38 U.S.C.A. § 1310 (West 1991), and remains
the same.  38 C.F.R. § 3.312 (1994) is the same regulation as
before.  Thus, the appellant was previously advised of the
pertinent laws and regulations regarding the establishment of
service connection for the cause of the veteran's death.

Next, the Board must determine whether the appellant has been
advised of the pertinent laws and regulations regarding the
reopening of a claim previously denied by the Board.  The Board's
March 1980 reconsideration decision includes (at page 5)
summaries and citations to the laws and regulations then in
effect regarding the reopening of claims.  For the purpose of
this discussion, the pertinent provision of 38 U.S.C. § 4003
(1976) provided that a decision of the Board was final.  This
provision has been recodified in 38 U.S.C.A. § 7103 (West 1991),
and remains the same.  38 U.S.C. 4004(b) (1976) provided that a
claim disallowed by the Board could not thereafter be reopened
and allowed, and no claim based upon the same factual basis could
be considered.  38 U.S.C. 4004(b) (1976) has been recodified in
38 U.S.C.A. § 7104(b) (West 1991), and remains the same.

In September 1989, prior to the appellant's submission of the
Notice of Disagreement in this appeal, a law became effective
concerning the type of evidence required to reopen a claim.  38
U.S.C. § 3008 (subsequently recodified in 38 U.S.C. § 5108)
provides that the VA will reopen a claim when "new and material"
evidence is presented.  The legislative history of the law
indicates that Congress intended the law to "create a more
certain basis for the reopening of claims...[so that] an attorney
entering a case following a disallowance by the Board would not
always be restricted in appealing to the [United States Court of
Veterans Appeals], to relying on the administrative record in
existence when the attorney entered the case."  Manio v.
Derwinski, 1 Vet.App. 140, 145-146 (1991) (quoting from S. Rep.
No. 418, 1005h Cong., 2d Sess. 34 (1988)).  The United States
Court of Veterans Appeals (Court) interpreted the legislative
history of this law to mean that it would be inconsistent with
the statutory framework created by 38 U.S.C. §§ 3008 (recodified
as 5108) and 4004(b) (recodified as 7104(b)) to require that the
new evidence, by itself, establish a new factual basis so as to
reopen a claim.  Manio at 146.  The Board determines that the
addition of 38 U.S.C. § 3008 did not impose new requirements to
reopen a claim, but merely clarified the law in existence,
emphasizing that the new and old evidence must be reviewed to
determine whether a new factual basis had been created.  Hence,
it was not necessary to specifically advise the appellant of the
provisions of 38 U.S.C. § 3008 (now § 5108).

Moreover, even if the VA was required to advise the appellant of
this law during the current appeal, the evidence currently of
record indicates the appellant, through her representative, has
been aware of the concept of new and material evidence.  At the
October 1990 hearing before the traveling section of the Board,
the appellant's representative referred to the Board's 1966
decision and to a medical textbook relating to tropical diseases.
(Hearing transcript at page 2).  Shortly thereafter, he referred
to the Board's previous finding, (possibly Finding of Fact 10 of
the September 1966 decision), that there were no medical bases to
establish a relationship between the veteran's service-connected
scrub typhus and nonservice-connected hemorrhoids, or to show
that scrub typhus may affect the anal canal.  The representative
then referred to a page in a medical textbook which he asserted
established that scrub typhus can implicate the alimentary tract,
thereby providing proof of the medical relationship previously
lacking in the appellant's case.  (Hearing transcript at page 3).
As will be discussed in more detail, the appellant and her son
presented testimony that the veteran experienced rectal bleeding
upon his return from service.  The representative at the hearing
was essentially asserting that new evidence, such as the medical
textbook and the hearing testimony, provided a reasonable
possibility of a change in outcome of the Board's prior decision
when considered with all of the old evidence.  Therefore, the
representative was essentially arguing that the appellant had
submitted new and material evidence to reopen her claim.  See Cox
v. Brown, 5 Vet.App. 95, 98 (1993).

In addition, the hearing transcript, the copy of the last page of
the Board's September 1966 hearing decision, and the copy of the
Board's March 1990 reconsideration decision show that the
appellant and her representative have been aware of the evidence
which is relevant to her appeal.  Therefore, in light of the
evidence that during the current appeal she has been aware of the
issue on appeal, the pertinent laws and regulations, and the
relevant evidence, any deficiencies that may have been contained
in the Statement of the Case constituted harmless error.  Cf.
Mykles v. Brown, No. 93-187 (U.S. Vet. App. Feb. 6, 1995)
(harmless error for the Board to have failed to notify appellant
of reliance upon additional evidence), 38 C.F.R. § 20.1102 (1994)
(error in a Board decision is harmless if it does not affect the
merits of the case or the appellant's substantive rights).

Due to the loss of the documents, the Board is unable to review
any contentions of the appellant contained in the Notice of
Disagreement and the Substantive Appeal.  However, based on the
arguments presented by her representative at the October 1990
hearing, the Board determines that her contentions have been
adequately presented to the Board.

Based on the above findings, the Board determines the appellant's
due process rights have been fulfilled in this appeal.

II.  New and Material Evidence

A.  Laws and Regulations

After a denial by the Board, the claimant must submit new and
material evidence to reopen a claim.  38 U.S.C.A. § 5108 (West
1991); 38 C.F.R. § 20.1105 (1994).  Until the claim has been
reopened, the VA does not have the duty to assist the claimant in
development of his or her claim.  See Sarmiento v. Brown, 7
Vet.App. 80 (1994).  New evidence, submitted to reopen a claim,
will be presumed credible solely for the purpose of determining
whether the claim has been reopened.  Justus v. Principi, 3
Vet.App. 510, 513 (1992).  Furthermore:

'New' evidence is that which is not merely
cumulative of other evidence of record.
'Material' evidence is that which is
relevant to and probative of the issue at
hand and which...must be of sufficient
weight or significance (assuming its
credibility) that there is a reasonable
possibility that the new evidence, when
viewed in context of all the evidence, both
new and old, would change the outcome.

Cox v. Brown, 5 Vet.App. at 98.  Furthermore, all evidence
received since the Board's final denial will be reviewed to
determine whether new and material evidence has been received to
reopen a claim.  See Glynn v. Brown, 6 Vet.App. 523, 529 (1994).

In light of the holding of Glynn, the Board must determine how
the March 1980 reconsideration decision affected the Board's
prior two decisions in order to determine when the appellant's
claim for entitlement to service connection for the cause of the
veteran's death was finally denied.  The law in effect at the
time of the March 1980 reconsideration decision, 38 U.S.C. § 4003
(1976), provided that a final decision of the Board could be
corrected based on obvious error.  According to the discussion of
the evidence in the reconsideration decision, the Board in its
February 1971 decision determined that the appellant had not
reopened her claim.  In addition, the findings of fact and the
conclusion of law of the reconsideration decision show that the
reconsideration decision did not replace the prior Board
decisions.  Therefore, the Board determines that all the evidence
received since the Board's September 1966 decision must be
considered to determine whether new and material evidence has
been received to reopen the appellant's claim.

B.  Discussion

According to the veteran's death certificate, the cause of death
in August 1965 was generalized peritonitis due to adrenal
exhaustion due to chronic ulcerative colitis.  At the time of his
death, service connection was in effect for scrub typhus and for
malaria, both assigned noncompensable (0 percent) evaluations.

The evidence received between the Board's September 1966 decision
and the February 1971 decision consisted of (1) a copy of an
article in a medical textbook relating to scrub typhus; (2) a
copy of a medical article relating to bacillary dysentery; (3) a
statement from a person who was hospitalized with the veteran
during service; and (4) testimony by the appellant and two
relatives.  The evidence received since the Board's February 1971
decision consists of (5) copies of SGO records; (6) a photograph
of the veteran shown to the Board  members at the October 1990
hearing; (7) references by the appellant's representative at the
October 1990 hearing to a medical textbook; (8) testimony by the
appellant at the October 1990 hearing; and (9) testimony by the
son of the appellant and the veteran at the October 1990 hearing.

Initially, the Board must determine whether any evidence is new,
that is, not cumulative of the evidence considered by the Board
in September 1966.  Items (1), (2) and (7) relating to references
to medical textbooks are new.  Item (3), the statement from
someone who was hospitalized with the veteran during service, and
who reported the veteran experienced periodic diarrhea at that
time, is cumulative of the service medical records that showed
the veteran experienced diarrhea during his hospitalization from
August 1944 to January 1945 for scrub typhus and malaria.
Regarding item (4), the testimony of the appellant and two
relatives prior to February 1971 that the veteran was in good
health prior to service, but was in poor health following
service, is cumulative of the March 1966 testimony that the
veteran always complained of blood in his stools and diarrhea
after discharge from service.  Item (5), the SGO records, showing
that the veteran was hospitalized during service for scrub typhus
and malaria, are cumulative of the service medical records of the
hospitalization.  Item (6), the photograph of the veteran, is
new.

In regard to item (8), the appellant testified before the Board
in October 1990 that the veteran did not visit her for a couple
of months after he returned from service because he was very
sick.  She added that the veteran experienced rectal bleeding and
chronic diarrhea upon his return from service.  The Board finds
that the appellant's testimony at the October 1990 hearing is
cumulative because testimony and statements from the appellant
and others as to the veteran's rectal bleeding and diarrhea upon
return from service were previously considered by the Board in
September 1966.

The son of the appellant and the veteran testified at the October
1990 hearing that his father died when the son was 11 years old.
He related that he remembered from the late 1950's or early
1960's that his father was very sickly and was always in and out
of the hospitals.  He stated his father was informed by doctors
that his medical problems were due to service.  He further
testified that he remembered his father had to go to the bathroom
constantly, and that his mother had to prepare a special diet for
his father.  He referred to a telegram the veteran sent during
service that indicated his father had been hospitalized for a
month, wearing no clothes.  He added that he had been told by
people that his father was very sickly when he returned from
service.

The son's testimony as to veteran's symptoms and treatment for
his gastrointestinal disorder during the late 1950's and early
1960's is cumulative of the previously considered treatment
records and veteran's testimony at a May 1965 RO hearing that
revealed treatment for bleeding bowels since 1959, severe
diarrhea since 1962, and ulcerative colitis in 1965.  However,
the Board finds as new evidence the son's testimony as to the
telegram sent by the veteran during service, and the purported
opinions by treating physicians that the veteran's
gastrointestinal disorders were related to service.

The Board must determine whether items (1), (2), (6), (7) and (9)
are also material evidence.  All the new evidence is relevant to
the issue of service connection for the cause of the veteran's
death.  Thus, the Board must consider whether these items are "of
sufficient weight or significance (assuming [their] credibility)
that there is a reasonable possibility that the new evidence,
when viewed in context of all the evidence, both new and old,
would change the outcome."  Cox v. Brown, 5 Vet.App. at 98.

The Board determines that item (6), the photograph of the veteran
taken shortly after service, is not of sufficient weight or
significance to provide a reasonable possibility of a change of
outcome of the Board's September 1966 decision.  The Board notes
that the appellant's representative at the October 1990 hearing
indicated the photograph showed the veteran to be in an emaciated
condition.  The Board presumes the photograph shows the veteran
to be underweight at that time.  However, Finding of Fact 6 of
the Board's original decision indicates the veteran did not lose
weight during service.  The service medical records do not show
he was emaciated upon separation from service.  In addition, the
appellant testified at the October 1990 hearing that the veteran
"was never a big man."  (Hearing transcript, page 6).
Furthermore, the veteran reported at a VA examination in January
1951 that he was well after his hospitalization during service
until he experienced severe diarrhea in August 1950.

In regard to item (9), the testimony of the veteran's son, the
Board determines that the veteran's telegram sent while
hospitalized during service is not material.  The telegram
apparently indicated the veteran reported that he was seriously
ill, requiring a hospitalization for a month without wearing his
clothes.  However, in view of the service medical records showing
no residuals of typhus or malaria at separation from service, or
of any gastrointestinal disorder, and the veteran's report to the
VA in 1951 that he was well for several years following service,
the evidence that he experienced severe symptoms of some type
during his hospitalization does not establish a reasonable
possibility of a change in the Board's September 1966 decision.

In addition, assuming that the physicians who treated the veteran
linked his gastrointestinal problems to service, there is no
evidence that such opinions were rendered based on a review of
the veteran's service medical records, or post-service treatment
records.  As previously noted, these records fail to show any
chronic gastrointestinal problems until several years after
service.  In view of the other evidence before the Board, the
Board determines that the son's testimony as to the medical
opinions of physicians who treated the veteran several years
after service is not of sufficient weight to provide a reasonable
possibility of a change in outcome of the Board's September 1966
decision.

Therefore, what new evidence remains concerns the medical
textbook references, items (1), (2) and (7).  Item (1) concerns a
passage from a medical textbook indicating that enlargement of
the lymphoid follicles in the gastrointestinal tract was seen in
several cases of scrub typhus.  Item (2) indicated that there was
a high incidence of chronic ulcerative colitis developing from
dysentery and that in cases of dysentery of a long-standing
nature where the intestine was chronically thickened and
sclerosed, the primary infectious agent might have disappeared.
In 1967, the appellant's representative asserted that the
veteran's hemorrhoids were the result of the scrub typhus, and
that the surgical intervention (hemorrhoidectomies) either caused
the hemorrhoids or old lesions from dysentery to develop into
ulcerative colitis.

Assuming the credibility of the medical literature regarding
scrub typhus, it still does not establish a medical relationship
between the veteran's scrub typhus shown during service, and the
veteran's hemorrhoids shown several years after service.  The
appellant's representative does not possess the medical expertise
to link enlarged lymphoid follicles to hemorrhoids or ulcerative
colitis.  See Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Moreover, the medical evidence reveals no findings of such a
disorder during and following service.

Assuming the credibility of the medical literature regarding
bacillary dysentery, the only evidence that the veteran
experienced symptoms of such a disorders has been the testimony
and the statements by the appellant and others that the veteran
experienced chronic diarrhea upon return from service and
appeared sickly.  The lay testimony and statements, however, have
been contradicted by the service medical records which showed the
absence of significant diarrhea or other gastrointestinal
symptoms during service, and by the post-service medical
treatment records showing no gastrointestinal problems until
1950, and all the medical records showing no diagnosis of
dysentery.  In fact, the lay testimony and statements are
directly contradicted by the veteran's own statements to
examining physicians following service and by his 1965 hearing
testimony.

The Board's finds the veteran's statements hold great probative
value since he knew best the history of his gastrointestinal
symptomatology during and after service, and the Board cannot
perceive of any reason why he would have falsely portrayed his
symptomatology to the VA.  As noted previously, the appellant,
the relatives and friends, and the representative do not possess
the medical expertise to opine that the veteran had dysentery
during or after service.  Hence, since the evidence does not
establish that the veteran ever had dysentery, the medical
literature linking dysentery to ulcerative colitis cannot provide
a reasonable possibility of a change in outcome of the Board's
September 1966 decision.

Item (7) concerns the references by the appellant's
representative at the October 1990 hearing to a medical textbook
on tropical diseases.  The first reference concerns the
relationship of dysentery to ulcerative colitis which for the
reasons just discussed, does not constitute material evidence.
The representative cited another page of the same medical
textbook indicating that scrub typhus implicates the alimentary
canal.  For the reasons previously discussed, this does not
constitute material evidence.

The representative then observed that the VA rating schedule
indicates various residual disorders may result from scrub
typhus.  In pertinent part, 38 C.F.R. § 4.88a, Diagnostic Code
6317 (1994), provides that when scrub typhus is not active, the
residual cardiac condition, pulmonary involvement,
thrombophlebitis, deafness, etc., are to be rated separately.
The representative asserted that since thrombophlebitis was
recognized by the VA as a residual of scrub typhus, accepted
medical principles establish that hemorrhoids can also be caused
by scrub typhus because of the involvement of the disease with
the circulatory system.  Therefore, continuing the logic of his
argument, the veteran's ulcerative colitis diagnosed many years
after service was due to hemorrhoids, shown a few years after
service, which were due to scrub typhus.

First, the Board notes that the representative did not contend
that the cited medical textbook showed there was a medical
relationship between scrub typhus and hemorrhoids.  Second, the
VA diagnostic code for scrub typhus does not specifically
establish that there is a medical relationship between
hemorrhoids and scrub typhus, and the representative does not
possess the medical expertise to provide such a medical
relationship.  Third, even assuming the purported accepted
medical principles, the medical evidence shows that the veteran's
hemorrhoids were first manifested in 1950, several years after
service.  The Board has discounted the only possible evidence of
hemorrhoids during and shortly after service, the previously
discussed lay testimony and statements.  Therefore, any medical
literature linking scrub typhus to hemorrhoids still does not
establish a reasonable possibility of a change of outcome of the
Board's September 1966 decision in this case.

The Board determines that no evidence has been received since the
Board's September 1966 decision which is new and material so as
to reopen the appellant's claim for service connection for the
cause of the veteran's death.  In regard to the testimony of the
veteran's son that the veteran's treating physicians linked the
gastrointestinal problems to service, since the appellant has not
reopened her claim, the VA has no duty to assist her in obtaining
any such medical opinions from the physicians.  See Sarmiento v.
Brown, 7Vet.App. at 80.

The Board notes that at the close of the October 1990 hearing,
the appellant's representative stated a "medical specialization
in tropical medicine should be afforded in this case."  (Hearing
transcript, page 16).  The Board interprets this remark as
possibly requesting the obtaining of a medical opinion.
Although, as just noted, the duty to assist does not arise until
the appellant has reopened her claim, the Board recognizes that
38 C.F.R. § 20. 901(a) (1994) provides that the Board may obtain
a medical opinion from the VA Chief Medical Director when such
medical expertise is necessary for equitable disposition of an
appeal.  Furthermore, 38 C.F.R. § 20.901(d) (1994) provides that
the Board may obtain an opinion from an independent medical
expert (IME) if warranted by medical complexity or controversy of
the case.

A decision by the Board was delayed in this case while the Board
attempted to obtain an IME opinion.  Upon further reflection of
the evidence and current legal precedents, the Board determines
that the case does not present medical complexity or controversy,
or otherwise require an expert medical opinion to equitably
decide this appeal.  Significantly, there have been no
conflicting or tentative diagnoses or medical opinions received
which would link the veteran's ulcerative colitis to service.  In
addition, as previously noted, a gastrointestinal disorder was
not shown until several years after service.

ORDER

Service connection for the cause of the veteran's death is
denied.

          CHARLES E. HOGEBOOM
          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.