Citation NR: 9704840 Decision Date: 02/12/97 Archive Date: 02/19/97 DOCKET NO. 94-47 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a hiatal hernia secondary to service-connected sinusitis. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gregory W. Fortsch, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to July 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating actions by the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 1995, a hearing was held before a hearing officer at the RO. A transcript of that hearing is of record. CONTENTIONS OF APPELLANT ON APPEAL The veteran generally contends that his hiatal hernia was caused by his service-connected sinusitis. Specifically, he states that the Theophylline he was prescribed by the VA for sinus problems as well as constant drainage from his nasal passages down to his throat, chest, and stomach from his service-connected sinusitis both caused his hiatal hernia. The veteran also contends that he has submitted new and material evidence to reopen his claim for service connection for asthma. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 the veteran has failed to submit a well-grounded claim for service connection for hiatal hernia secondary to his service-connected sinusitis. It is also the decision of the Board that the veteran has failed to submit new and material evidence to reopen the claim for service connection for asthma. FINDINGS OF FACT 1. The claim for service connection for hiatal hernia secondary to service-connected sinusitis is not plausible. 2. There is no competent medical evidence in the claims folder which indicates that the veteran’s hiatal hernia was caused by his service-connected sinusitis. 3. The last final disallowance of the veteran’s claim of service connection for bronchial asthma was issued by the Board in a July 1990 decision. 4. Additional evidence received since July 1990 is cumulative or, when considered in the context of all the evidence, both new and old, does not create a reasonable possibility that the outcome of the decision would be changed if the claim were reopened. CONCLUSIONS OF LAW 1. The veteran’s claim for service connection for hiatal hernia secondary to service-connected sinusitis is not well- grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1996). 2. Evidence received since the last final disallowance by the Board in July 1990 is not new and material; the claim of service connection for asthma is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. § 3.156 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claim Secondary service connection can be granted for a disability under the law. Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. See 38 C.F.R. § 3.310 (1996). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought, in order for the claim to be well- grounded. See Jones v. Brown, 7 Vet.App. 134 (1994). The veteran does not claim and the evidence does not show treatment for or complaints of hiatal hernia in the service. A review of the extensive medical evidence from VA and private sources in the claims file indicates that the veteran had a variety of stomach and ulcer problems as early as 1973. VA records show that the veteran was treated in 1973 for an upset stomach and possible peptic and duodenal ulcer problems. In private records, stomach discomfort was noted in August 1974 and December 1975 while peptic ulcer was noted in July 1978. Later, in March 1988, the veteran complained about bloating of the stomach in a VA record. September through November 1989 private records show that the veteran suffered from problems including a distended gallbladder, cholestasis, cholecystitis, pancreatitis, and a possible liver abscess. A June 1991 outpatient VA treatment record showed that the veteran had been hospitalized in 1989 for observation of an ulcer flare-up. According to a private record, the veteran was diagnosed with hiatal hernia in January 1992. Finally, in May 1992, the veteran indicated to an attending VA physician that his hiatal hernia and digestive problems, according to his allergy doctor, were caused by the his service-connected rhinitis. In July 1995, the veteran testified at his personal hearing that his stomach problems, according to his doctors, could very likely have come from his service-connected sinusitis. See Hearing Transcript, p. 1. He added that his hiatal hernia could have been due to the constant drainage from his nasal passages down to his throat, chest and stomach. Id. at 4. The veteran also figured out himself that the Theophylline prescribed for nine months for his sinus problems caused his gastroesophageal reflux and hiatal hernia. Id. A review of the above-described evidence indicates that the veteran has not submitted a well-grounded claim for service connection for hiatal hernia secondary to service-connected sinusitis. For the veteran’s claim for secondary service connection for hiatal hernia to be well-grounded, there must be evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones. The veteran has not presented such evidence. It is true that the veteran has submitted a variety of articles over the years which show that the Theophylline he took in 1989 and 1990 has health risks and side effects, which include nausea, vomiting, gastric acid secretion, and abdominal pain, but these articles only speak generally of the effects of the drug. They do not specifically speak to the veteran’s hiatal hernia or other stomach problems, nor do they provide an opinion on the cause of the veteran’s hiatal hernia. Although the medical evidence shows that the veteran was diagnosed with hiatal hernia in January 1992, and he claims that his physicians have stated that his hiatal hernia and his service-connected sinusitis are related, the veteran has not submitted supporting statements from these physicians. Attempts have been made to obtain all outstanding clinical records and there is no suggestion of an etiological relationship between sinus disability and hernia pathology in these records. The veteran’s own statements and testimony regarding his beliefs on the cause of his hiatal hernia are not sufficient alone to make the claim well- grounded. The veteran is not a licensed medical practitioner, and he is not, therefore, competent to offer opinions on questions of medical causation or diagnosis. Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim where claims are deemed to be not well-grounded, the VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995). In this case, the RO fulfilled its obligation under section 5103(a) in the August 1994 Statement of the Case and subsequent supplemental Statements of the Case in which the veteran was informed of the reasons for the denial of his claim. Furthermore, by this decision, the Board is informing the veteran of the evidence which is lacking and that is necessary to make his claim well-grounded. In light of the fact that the veteran has failed to submit evidence of medical nature showing that his hiatal hernia is secondarily related to his service-connected sinusitis, the claim for service connection for hiatal hernia secondary to service- connected sinusitis must be denied. II. New and Material Claim In an April 1980 Board decision, service connection was denied for emphysema and bronchitis. When a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered, except upon the submission of new and material evidence with respect to that claim. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156. In this case, the Board denied the appellant’s request to reopen the claim for service connection for bronchial asthma in July 1990. That determination is a final disallowance of the claim and the appellant’s claim cannot be reopened unless new and material evidence is submitted. In its July 1990 decision, the Board found that the evidence submitted in support of reopening the claim failed to show the presence of bronchial asthma during service or for many years thereafter and failed to establish a causal relationship between the disorder and the veteran’s service-connected nasal disorders. The Board therefore concluded that the veteran had not submitted new and material evidence to reopen the claim. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that “new evidence” is evidence that is not “merely cumulative” of other evidence of record. Id. The Court has also explained that evidence is “material” where it is “relevant to and probative of the issue at hand” and where it is of “sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court has reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, 7 Vet.App. 113 (1994). The issue of whether the evidence submitted is new and material is a question of law and its credibility must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet.App. 510, 513 (1992). However, the Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require the VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, 7 Vet.App. 216 (1994). The Court has recently clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet.App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. If the evidence is “new” and “probative,” then it must be determined whether such evidence presents a reasonable possibility of changing the outcome of the prior decision based on all the evidence. If these conditions are met, then the evidence is both “new” and “material.” Id. The evidence submitted since the last final disallowance of the veteran’s claim in July 1990 and claimed by the veteran to be new and material consists of VA outpatient treatment records dated from November 1988 to August 1993, private treatment records dated from September 1989 to January 1992, July 1995 hearing testimony, and copies of numerous articles from medical treatises and journals. The Board concludes that all of this evidence is new, but that none of it is material. With respect to the private treatment records, they are not material as they fail to reflect treatment for asthma. The VA records show treatment for a variety of respiratory problems, including rhinitis and bronchial asthma, but they are not material as they fail to show a relationship between the veteran’s asthma and the veteran’s other service-connected disabilities or service itself. See Cox v. Brown, 5 Vet.App. 95 (1993) (treatment records created years after service that do not indicate that the disorder is service-connected cannot constitute new and material evidence). The July 1995 hearing testimony does not pertain to the claim for asthma, but, rather, to the claim for service connection for hiatal hernia. For that reason, it is not material. Finally, some of the articles submitted by the veteran discuss the adverse effects of Theophylline, a drug prescribed for treatment of asthma. These articles are not material as they fail to be probative of the issue regarding whether the veteran’s asthma was incurred in service or related to a current service-connected nasal problem. Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim where it is determined that new and material evidence has not been submitted to reopen a claim for service connection, the VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. See Graves v. Brown, 8 Vet.App. 523 (1996). This obligation depends upon the particular facts of the case and the extent to which the Secretary of the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. at 80. In this case, the RO fulfilled its obligation under section 5103(a) in the April 1996 statement of the case (SOC) and subsequent June 1996 supplemental SOC in which the RO informed the veteran of the reasons for the denial of his claim. Furthermore, by this decision, the Board is informing the veteran of the evidence which is lacking and that is necessary to reopen his claim. Thus, in light of the fact that the veteran has failed to provide new and material evidence showing that his asthma is related to service or any of his service-connected disabilities, the claim for service connection for asthma remains denied. ORDER The appeal for service connection for hiatal hernia secondary to service-connected sinusitis is denied. New and material evidence not having been submitted to reopen the claim for service connection for asthma, the claim remains denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -