Citation Nr: 0201999 Decision Date: 02/28/02 Archive Date: 03/05/02 DOCKET NO. 98-06 490A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a gastrointestinal disorder to include dysentery. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) dated January 19, 2001, which vacated a December 1999 Board decision and remanded the case for further development in light of the Veterans Claims Assistance Act of 2000. The matter originally arose from an October 1997 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). As set forth below, the Board finds that new and material evidence has been presented to reopen the claim of service connection for a gastrointestinal disorder to include dysentery. However, the Board is not, at this time, considering the claim of entitlement to service connection for a gastrointestinal disorder to include dysentery on the merits. Rather, the Board is undertaking additional development on the issue of service connection for a gastrointestinal disorder to include dysentery pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903.) After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing this issue. FINDINGS OF FACT 1. In a June 1995 decision, the RO determined that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a gastrointestinal disorder to include dysentery. The veteran was provided notice of his procedural and appellate rights in June 1995; however a notice of disagreement was not received within the subsequent one-year period. 2. Evidence submitted since the RO's June 1995 decision is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's June 1995 decision which determined that new and material evidence had not been submitted to reopen the claim of service connection for a gastrointestinal disorder, to include dysentery is final. 38 U.S.C.A. § 7105 (West 1991). 2. New and material evidence has been submitted since the RO's June 1995 decision, thus, the claim of service connection for a gastrointestinal disorder to include dysentery is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5107, 5126 (West Supp. 2001). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The Act and implementing regulations eliminate the concept of a well-grounded claim, redefine the obligations of VA with respect to the duty to assist, and supersede the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this case, even though the RO did not have the benefit of the explicit provisions of the VCAA, VA's duties have been fulfilled. First, VA has a duty to notify the veteran and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103. The record shows that the veteran was notified in October 1997 and March 1998 rating decisions, in an April 1998 statement of the case, and in a December 1998 supplemental statement of the case, all sent to the veteran, of the reasons and bases for the denial of his claim. VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. The Board concludes that the discussions in the rating decisions, in the statement of the case, and in the supplemental statement of the case, informed the veteran of the information and evidence needed to substantiate this claim and complied with VA's notification requirements. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A. In this case, the Board is reopening the veteran's claim. With regard to the claim of service connection on the merits, further development is being undertaken. In the circumstances of this case, a remand would serve no useful purpose with regard to the issue on the front page of this decision. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As noted, in this case, even though the RO did not have the benefit of the explicit provisions of the VCAA, VA's duties have been fulfilled with regard to the issue on the front page of this decision. Moreover, as the Board finds that the directives of VCAA have been complied with regarding VA's duties to notify and to assist the veteran, the Board finds that the veteran has not been prejudiced by the Board's consideration of the merits of his claim, as set forth below. See Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby]. For the reasons previously set forth, the Board believes that the veteran has been given ample opportunity to provide evidence and argument in support of his claim to reopen the claim of service connection. In short, the Board finds that the veteran has been given adequate notice of the need to submit evidence or argument and that he is not prejudiced by this decision. Background The veteran had active service from March 1969 to October 1970. Following his discharge from service, the veteran filed a claim for service connection for chronic diarrhea/dysentery. Of record were his service medical records which showed treatment for diarrhea and vomiting during service. The post-service records showed that he was afforded a VA examination in December 1983. At that time, the veteran reported that he had had chronic and recurrent diarrhea since November 1969 during service. Physical examination resulted in a diagnosis of history of chronic diarrhea, etiology unknown. In a December 1983 rating decision, the RO denied the veteran's claim for service connection. The veteran appealed this determination to the Board. Private medical evidence was submitted. Records from the Henry Clay Frick Community Hospital showed that the veteran reported having a history of diarrhea since service. He was treated at this hospital for diarrhea and underwent a sigmoidoscopy and an upper gastrointestinal series. The small bowel study was normal. He also underwent a barium enema which yielded a finding of no abnormalities. February and October 1984 statements were received from William F. Colvin, M.D., in which he stated that he treated the veteran in 1981 for ulcerative colitis. A November 1984 letter of the Connellsville State General Hospital showed that the veteran was x-rayed at that facility. In a June 1985 Board decision, the Board determined that service connection was not warranted for a chronic gastrointestinal disorder. Thereafter, the veteran sought to reopen his claim. In support of his claim to reopen, he submitted a statement from Albert G. Saloom, M.D., in which Dr. Saloom stated that the veteran had amebic dysentery and chronic gastroenteritis with chronic persistent diarrhea during service. In February 1986, the RO determined that service connection was not warranted for a chronic gastrointestinal disorder. The veteran appealed that determination to the Board. In support of his claim to reopen, he submitted duplicate service records which showed that the veteran was treated for diarrhea during service. Dr. Saloom's statement was again submitted. In addition, the veteran also submitted a statement of M. J. McCloy, M.D., which showed that the veteran was treated in January 1973 for persistent diarrhea and abscess of the perianal area. In a June 1987 decision, the Board determined that there was no new factual basis justifying a grant of service connection for a chronic gastrointestinal disability including dysentery. Thereafter, the veteran sought to reopen his claim. In support of his claim to reopen, he submitted another statement of Dr. Saloom in which Dr. Saloom opined that the veteran developed amebic dysentery and dysentery and chronic gastroenteritis with chronic persistent diarrhea during service. He indicated that he last examined the veteran in April 1988 following an attack of diarrhea. In June 1988, the RO confirmed and continued the prior denial of service connection. The veteran appealed that determination to the Board. In a July 1989 decision, the Board determined that there was no new factual basis justifying a grant of service connection for a chronic gastrointestinal disability including dysentery. In June 1990, the RO confirmed and continued the prior denial of service connection. The veteran appealed that determination to the Board. In a February 1992 decision, the Board determined that new or material evidence had not been submitted to reopen the claim of service connection for a chronic gastrointestinal disability including dysentery. The veteran subsequently appealed the February 1992 Board decision to the Court. In a June 30, 1994 decision, the Court affirmed the Board's February 1992 decision. Thereafter, the veteran sought to reopen his claim. In support of his claim to reopen, he submitted a letter from Thomas P. Buckelew, Ph.D., in which he indicated that it was possible that the veteran suffered from a current disability related to his military service. He indicated that he was not a physician and had not examined the veteran. In a June 1995 decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for a chronic gastrointestinal disability including dysentery. Currently, the veteran seeks to reopen the claim of service connection for a chronic gastrointestinal disability including dysentery. In support of his claim, he has submitted duplicates of one of Dr. Saloom's letters; duplicates of the letter of Thomas P. Buckelew, Ph.D.; a service medical record of another veteran; duplicate service medical records of his own; and a medical opinion from Craig N. Bash, M.D., in which Dr. Bash related the veteran's gastrointestinal illness, which is most likely "chronic amebiasis or its chronic form so-called ulcerative postdysenteric colitis (UPD) or other yet to be diagnosed gastroenteritis (YTBDG)" to the veteran's service in Vietnam. Analysis When a claim has been disallowed by the RO, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991). According to the Court, sections 5108, 7104(b), and 7105(c) require that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In this case, the last final decision of record was the June 1995 rating decision. The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been 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 evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board notes that the legal standard of what constitutes "new and material" evidence was recently amended. This amendment is inapplicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. 66 Fed. Reg. 45,620, 45,630 (August 29, 2001) (to be codified at 38 C.F.R. § 3.156(a).) A review of the newly submitted evidence shows that while the veteran submitted evidence duplicative to evidence already of record, he also submitted the new opinion of Dr. Bash which was not previously of record. This opinion states that the veteran incurred gastrointestinal disability as result of his service in Vietnam. The Board finds that assuming the credibility of the recent evidence as required by Justus, the veteran has submitted new and material evidence. This evidence is relevant and probative to the issue at hand and is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Accordingly, this claim of service connection for a gastrointestinal disorder to include dysentery is reopened. ORDER New and material evidence has been submitted to reopen the claim of service connection for a gastrointestinal disorder to include dysentery. H. N. SCHWARTZ Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.