Citation Nr: 0003563 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 93-11 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a duodenal ulcer. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The veteran and the veteran's wife ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from December 1952 to December 1954. In February 1955, the Kansas City, Missouri, Regional Office denied service connection for a duodenal ulcer. In March 1955, the veteran was informed in writing of the adverse decision and his appellate rights. The veteran did not submit a notice of disagreement. In September 1989, the St. Louis, Missouri, Regional Office (RO) denied service connection for a duodenal ulcer. In June 1990, the Board of Veterans' Appeals (Board) denied service connection for a duodenal ulcer. The veteran and his accredited representative were provided with copies of the Board's decision. This matter came before the Board on appeal from a March 1992 RO decision of the RO which determined that new and material had not been submitted to reopen the veteran's claim of entitlement to service connection for a duodenal ulcer. In July 1992, the RO determined that the February 1955 rating decision was not clearly and unmistakably erroneous in denying service connection for a duodenal ulcer. In September 1992, the veteran was afforded a hearing before a Department of Veterans Affairs (VA) hearing officer. In March 1995, the Board remanded the veteran's claims to the RO for additional action. In June 1996, the Board determined that the veteran had not submitted new and material evidence to reopen his claim of entitlement to service connection for a duodenal ulcer and the issue of whether the Kansas City, Missouri, Regional Office committed clear and unmistakable error in its February 1955 rating decision denying service connection for a duodenal ulcer did not exist as a matter of law. The veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In [citation redacted], the Court affirmed that the Board's determination as to the issue of clear and unmistakable error in the February 1955 rating decision; vacated that portion of the Board's decision which determined that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for a duodenal ulcer; and remanded that issue to the Board for proceedings consistent with its decision. The veteran has been represented throughout this appeal by the Disabled American Veterans. FINDINGS OF FACT 1. In June 1990, the Board denied service connection for a duodenal ulcer. The veteran and his accredited representative were provided with copies of the decision. 2. The documentation submitted since the June 1990 Board decision is relevant and probative of the issue at hand. CONCLUSION OF LAW The June 1990 Board decision denying service connection for a duodenal ulcer is final. New and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for a duodenal ulcer has been presented. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156, 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a veteran requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. An adverse determination as to either question is appealable. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1105 (1999). In reviewing an application to reopen a veteran's claim of entitlement to service connection, the Court has held that: [T]he Secretary must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 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, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C. § 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 his duty to assist under 38 U.S.C. § 5107(a) has been fulfilled. Winters v. West, 12 Vet. App. 203, 206 (1999), citing Elkins v. West, 12 Vet. App. 209 (1999). I. Prior Board Decision In June 1990, the Board denied service connection for a duodenal ulcer upon its determination that the claimed disorder preexisted service entrance and had not been aggravated by active service. The veteran and his accredited representative were provided with copies of the decision. The evidence considered by the Board in reaching its June 1990 decision may be briefly summarized. A December 17, 1952 Army radiological study indicates that the veteran was found to exhibit a cloverleaf deformity in the duodenal bulb with questionable evidence of an active ulcer. A disposition slip reflected hospital admission for a condition that was "LOD- no EPTS." A January 1953 Army treatment entry conveys that the veteran reported experiencing episodic vomiting and abdominal pain during "all of his life." A January 1953 upper gastrointestinal study revealed no abnormalities. The report of the veteran's November 1954 physical examination for service separation relates that no abdominal or visceral abnormalities were identified. Clinical documentation from Prime Health and Michael S. Fedotin, M.D., shows that the veteran received treatment for ulcer disease starting in approximately 1980. II. New and Material Evidence Title 38 of the Code of Federal Regulations (1999) states, in pertinent part, that: "New and material evidence" means evidence not previously submitted to agency decision makers 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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. 38 C.F.R. § 3.156(a) (1999). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence submitted since the June 1990 Board decision denying service connection for a duodenal ulcer consists of Office of the Surgeon General, Department of the Army (SGO) records, service personnel records, VA clinical documentation, the transcript of the September 1992 hearing before a VA hearing officer; and written statements from [redacted] [redacted], the veteran's wife, the veteran's daughter, and the veteran. In its April 1999 decision, the Court commented that the veteran and his wife's testimony and statements on appeal and a statement from the veteran's neighbor convey that the veteran did not have an ulcer disorder prior to service entrance; he exhibited progressive ulcer symptomatology during his period of active service; and he suffered from continuous ulcer symptomatology since service separation. The Court concluded that the veteran had submitted new evidence in support of his claim and such evidence, if not new and material, "undoubtedly 'contribute[d] to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability.'" [citation redacted]. In light of the Court's opinion, the Board finds that this additional evidence is new and material as to the issue of the veteran's entitlement to service connection for a duodenal ulcer and is therefore sufficient to reopen his claim. ORDER The veteran application to reopen his claim of entitlement to service connection for a duodenal ulcer is granted. REMAND In his December 1999 Informal Brief of Appellant, the national accredited representative advanced that the veteran received significant gastrointestinal treatment at the Fort Riley, Kansas, Army Hospital during active service. Clinical documentation from the identified facility has not been requested. In addressing a similar factual scenario, the Court has held that when the veteran identifies clinical treatment associated with specific military facilities, the VA has a duty to either undertake an exhaustive record search or explain why such action is not justified. Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). Additionally, the national accredited representative advanced in his December 1999 Informal Brief of Appellant that the veteran reported in his January 1955 Veteran's Application for Compensation or Pension (VA Form 8-526) that he had been treated for stomach trouble by a Dr. Walker at Clinton General Hospital "from June 1952 to December 1954 (A period encompassed by the veteran's military service.)." The Board observes that the veteran actually indicated that he had been treated by Dr. Walker prior to service entrance between June 1952 and December 1952. The Court has held that the VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). Accordingly, this case is REMANDED for the following action: 1. The RO should request that a search be made of the records of the Fort Riley, Kansas, Army Hospital for any documentation pertaining to treatment of the veteran. All material produced by the requested search should be incorporated into the record. 2. Upon receipt of the appropriate releases, the RO should contact Dr. Walker and Clinton General Hospital and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran for incorporation into the record. 3. The RO should then schedule the veteran for a VA examination for compensation purposes which is sufficiently broad enough to accurately determine the current nature and severity of his chronic gastrointestinal disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should express an opinion as to the etiology of all identified gastrointestinal disabilities and their relationship, if any, to the veteran's inservice gastrointestinal symptomatology. 1. The physician should expressly state whether the veteran has duodenal ulcer disease. 2. The examiner should determine whether the veteran did, in fact, have a duodenal ulcer during service. 3. The examiner should determine whether a duodenal ulcer clearly and unmistakably preexisted service. 4. If a duodenal ulcer preexisted service, were the inservice manifestations indicative of natural progress of the disease. 5. In the examiner's opinion, is a layman capable of distinguishing manifestations due to a duodenal ulcer from gastritis, a hiatal hernia, inflammation of the gastric mucosa or anxiety reaction. The claims file, including a copy of this REMAND, MUST be made available to the examiner prior to the examination. 4. In representing the VA before the Court, the General Counsel of the VA has noted that the RO has duties. Pursuant to 38 C.F.R. § 3.655 (1999), when the veteran without good cause fails to report for examination, his reopened claim for service connection will be denied. However, the Secretary of the VA must show a lack of good cause for failing to report. Further, the VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The RO must comply with all notification requirements regarding the duty to report and the failure to report for examination. This serves as notice of the regulations. 5. The RO should prepare a rating decision that addresses every identified diagnosis of the digestive tract. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See the Veterans' Benefits Improvement Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38 U.S.C.A. § 5101 (West 1991 and Supp. 1998) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the RO is to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV. Paras. 8.44-8.45 and 38.02-38.03. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to allow for additional development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. H. N. SCHWARTZ Member, Board of Veterans' Appeals