BVA9500672 DOCKET NO. 93-08 707 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a duodenal ulcer. 2. Entitlement to an increased disability evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARINGS ON APPEAL The veteran and Leo R. Ryan, Ph.D. ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had active military service from May 19, 1965 to May 2, 1967 and from October 11, 1967 to October 10, 1970. He had additional active military service from October 11, 1970 to December 7, 1977 from which he was discharged under other than honorable conditions. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an October 1990 rating decision of the St. Petersburg, Florida Regional Office (hereinafter "the RO") which determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a duodenal ulcer and denied an increased disability evaluation for his service-connected post-traumatic stress disorder. The veteran has been represented throughout this appeal by the Military Order of the Purple Heart. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to reopen and grant his claim for service connection for a duodenal ulcer and in denying an increased disability evaluation for his service-connected post-traumatic stress disorder. He contends that he initially manifested an ulcer disorder during active military service or, in the alternative, he has been diagnosed by both a private physician and his treating Department of Veterans Affairs (hereinafter "VA") clinical psychologist as suffering from a chronic ulcer disorder secondary to post-traumatic stress disorder. He advances that his service-connected psychiatric disability is productive of severe social impairment and total industrial impairment. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that he has submitted new and material evidence sufficient to reopen his claim for service connection for a duodenal ulcer. For the reasons and bases discussed below, the veteran's claim for service connection for a duodenal ulcer and an increased disability evaluation for post-traumatic stress disorder is remanded to the RO for further action. FINDINGS OF FACT 1. In September 1983, the RO denied service connection for a duodenal ulcer. The veteran submitted a notice of disagreement to the adverse decision in October 1983. In July 1984, the RO confirmed the September 1983 rating decision and denied service connection for a duodenal ulcer secondary to the veteran's service-connected post-traumatic stress disorder. In July 1984, the veteran submitted a notice of disagreement to the July 1984 rating decision. A statement of the case was issued to the veteran in September 1984. The veteran submitted a substantive appeal in September 1984. Supplement statements of the case were issued to the veteran in January and April 1985. In June 1985, the veteran submitted a written statement withdrawing his appeal as to the denial of service connection for an ulcer disorder. 2. The additional documentation submitted since the July 1984 rating decision includes information not previously considered which, when viewed with all of the evidence, could lead to a decision favorable to the veteran. CONCLUSION OF LAW The additional documentation received since the July 1984 RO decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for a duodenal ulcer. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed as to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a duodenal ulcer. I. Prior RO Decisions In September 1983, the RO denied service connection for a duodenal ulcer. The veteran submitted a notice of disagreement to the adverse decision in October 1983. In December 1983, the RO established service connection for post-traumatic stress disorder. In July 1984, the RO confirmed the September 1983 rating decision and denied service connection for a duodenal ulcer secondary to the veteran's post-traumatic stress disorder. In July 1984, the veteran submitted a notice of disagreement to the July 1984 rating decision. A statement of the case was issued to the veteran in September 1984. The veteran submitted a substantive appeal in September 1984. Supplement statements of the case were issued to the veteran in January and April 1985. In June 1985, the veteran submitted a written statement withdrawing his appeal as to the denial of service connection for an ulcer disorder. The evidence upon which the RO formulated its July 1984 denial of service connection may be briefly summarized. The veteran's service personnel records indicate that he had honorable active military service for VA purposes from May 19, 1965 to May 2, 1967 and from October 11, 1967 to October 10, 1970. He had additional active military service from October 11, 1970 to December 7, 1977 from which he was discharged under other than honorable conditions. The service medical records associated with the veteran's periods of honorable service make no reference to either a duodenal ulcer or the onset of such a disability. A November 1975 Army treatment record indicates that the veteran complained of intermittent sharp pain in the esophageal area. An impression of "probable gastroenterological reflux by history" was advanced. A December 1976 Army treatment record notes that the veteran complained of epigastric/low substernal pain. Impressions of epigastric pain, "probable acid/peptic disease," and "rule out ulcer" were advanced. The report of a December 1977 Army physical examination for service separation conveys that the veteran neither complained of nor exhibited any stomach or intestinal abnormalities. A March 1980 written statement from the veteran relates that he was treated for gastritis at Moncrief Army hospital in 1972 and was subsequently treated for possible ulcers at Fort McClellan, Alabama and Fort Bragg, North Carolina. VA hospital summaries dated in March 1980 and February 1982 report that the veteran was diagnosed as suffering from a duodenal ulcer with gastrointestinal bleeding. A December 1982 written statement from the veteran advances that his ulcer disorder "started from gastritis suffered in 1972 at Fort Jackson, South Carolina." He acknowledged receiving "no treatment at all for my ... ulcer in my good period of service." A December 1982 VA psychological evaluation conveys that the veteran suffered from a duodenal ulcer which was "directly related to his continued stress due to post-traumatic stress disorder and paranoid schizophrenia." The report of an August 1983 VA examination for compensation purposes indicates that the veteran was suffering from a history of a peptic ulcer with chronic ulcer disease. II. New and Material Evidence Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1993). Here, the veteran withdrew his appeal which essentially negates the notice of disagreement he did submit. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the RO's July 1984 decision. Title 38 of the Code of Federal Regulations (1993) 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) (1993). The United States Court of Veterans Appeals (hereinafter "the Court") has elaborated on what constitutes "new and material evidence." New evidence is not that which is merely cumulative of other evidence already present in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990). When evidence is material, it means that there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the appeal. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence received since the July 1984 RO decision consists of photocopies of the veteran's service personnel and medical records; VA examination and treatment records; treatment records from Robert Dunn, M.D., and the Bay Way Family Practice; statements from Joseph B. Mitchell, M.D., Timothy C. Runyon, D.P.M., Nicholas A. Kozlov, M.D., and F. Bill Darden; a September 1980 Department of the Army, Board for Correction of Military Records decision with attachments; a July 1992 Social Security Administration decision with attachments; transcripts of personal hearings conducted before a VA hearing officer in September 1984, August 1988, March 1991, and December 1992; and written statements from the veteran. In reviewing this additional evidence, the Board observes that the August 1991 statement from Dr. Kozlov conveys that: [The veteran] has evidence of chronic peptic ulcer disease, and multiple relapses have occurred in association with stress. This is related to his post-traumatic stress syndrome. I think that you should take this into account when you are considering his disability rating. At the December 1992 hearing on appeal, Leo R. Ryan, Ph.D., the veteran's treating VA clinical psychologist, testified that the veteran "has a chronic state of anxiety due to post-traumatic stress disorder" which "in turn puts stress on the body and produces an ulcer." The additional documentation submitted since the July 1984 rating decision consists, in part, of opinions from a private physician and a VA clinical psycholo-gist which advance that the veteran's ulcer disorder is etiologically related to his service-connected post-traumatic stress disorder. Such evidence is new and material as to the issue of service connection for a duodenal ulcer and is therefore sufficient to reopen the veteran's claim. ORDER The veteran's application to reopen his claim of entitlement to service connection for a duodenal ulcer is granted. REMAND In light of the reopening of the veteran's claim, the Board observes that the veteran's entitlement to service connection for a duodenal ulcer is to be determined following a de novo review of the entire record. In considering a similar factual scenario, the Court has held that: ... when, as here, the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In light of the Court's holding in Bernard, the veteran should be provided an opportunity to submit further evidence, testimony and argument in support of his claim prior to resolution of the instant appeal. The Board notes that the August 1991 statement from Dr. Kozlov appears to indicate that he has provided ongoing treatment for the veteran's ulcer disorder. Clinical documentation of such treatment has neither been requested nor incorporated into the record. Additionally, the veteran has not been afforded a recent VA gastroenterological examination. Such an evaluation would be helpful in determining the etiology of the veteran's ulcer disorder. In turning to the issue of the veteran's entitlement to an increased disability evaluation for post-traumatic stress disorder, the Board observes that the clinical record is in conflict as to the present severity of the veteran's psychiatric disability. Whereas the report of the most recent VA psychiatric examination conducted in May 1991 conveys that the veteran was suffering from mild active post-traumatic stress disorder, VA psychological evaluations dated between 1990 and 1992 relate that his service-connected psychiatric disorder was productive of severe social impairment and total unemployability. The Court has clarified that where the clinical record does not adequately reveal the current state of the veteran's disability, further VA examination must be conducted. Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). Given the divergent findings as to the veteran's post-traumatic stress disorder, I conclude that additional VA psychiatric evaluation and a VA social and industrial survey would be helpful in determining the present nature and severity of the veteran's post-traumatic stress disorder. The veteran has advanced contentions on appeal which the Board has construed as a request for a total rating for compensation purposes based on individual unemploy-ability. This issue is referred to the RO for action deemed appropriate. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the Court in Schafrath and Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. After obtaining the appropriate release, the RO should contact Nicholas A. Kozlov, M.D., and request that he forward all available clinical documentation pertaining to the veteran for incorporation into the record. 2. The RO should then schedule the veteran for a VA psychiatric evaluation in order to determine the present nature and severity of the veteran's service-connected post-traumatic stress disorder. The examination should be conducted in accordance with the Physician's Guide to Disability Evaluation Examinations. The claims folder should be made available to the examiner prior to the examination. 3. The RO should then contact the accredited representative and inform the veteran that he may submit additional evidence and argument in support of his claim for service connection for a duodenal ulcer and may request a personal hearing. The veteran should be allowed an adequate period of time to respond to the RO's notice. 4. The RO should then adjudicate the veteran's claim for service connection for a duodenal ulcer on a de novo basis. When the requested action has been completed and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, this case should be returned to the Board for further appellate consideration, if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for additional development of the record and comply with due process of law. No inference should be drawn from it regarding the final disposition of this claim. EDWARD W. SEERY 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).