Citation Nr: 1111490 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 06-07 056A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1951 to August 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decisional letter of the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In December 2007, January 2010, and in July 2010, the case was remanded to satisfy notice and due process requirements. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The matter of entitlement to service connection for peptic ulcer disease based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDINGS OF FACT 1. An unappealed June 1958 rating decision denied service connection for a stomach condition based essentially on findings that no ulcer had been found in service, and because the Veteran's symptoms of a duodenal ulcer were not shown until September 1957, three years after his separation from service. 2. Evidence received since the June 1958 rating decision includes evidence not of record at the time of that decision which suggests the Veteran's peptic ulcer disease might be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for peptic ulcer disease; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for peptic ulcer disease may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis An unappealed June 1958 rating decision denied the Veteran's claim of service connection for a stomach condition based essentially on a finding that an ulcer was not shown to have been manifested in service, and because it was not shown that he had symptoms of a duodenal ulcer until September 1957, three years after his separation from service. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disorder also may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/ or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Evidence of record in June 1958 consisted of the Veteran's service treatment records (STRs), the report of a May 1958 VA examination, and a June 1958 Certificate of Attending Physician by Dr. D.C.M. The Veteran's STRs show that in August 1953, he complained of vomiting and nausea while at sea. In May 1954, it was noted that he suffered from "rather severe and apparently at times incapacitating motion sickness since his first on board ship in 1952," and had undergone considerable amount of treatment without success. It was also noted that he had been absent without leave on several occasions in an attempt to avoid going on board ship. He was then transferred to a U.S. Naval Hospital in Oakland, California, for additional treatment. On admission to the hospital, his physical examination was within normal limits, and his laboratory results were also within normal limits or negative. It was the physician's assessment that the Veteran suffered from chronic seasickness, as substantiated by his records. In July 1954, the Veteran underwent a Board of Medical Survey and was found unfit for service by reason of motion sickness. It was further found that the motion sickness pre-existed his service, and was not incurred in or aggravated by his service. In August 1954, the Veteran was discharged from the U.S. Naval Service by reason of physical disability. His STRs are silent for any complaints, findings, treatment, or diagnosis related to peptic ulcer disease. On May 1958 VA examination, the Veteran complained of vomiting and pains in his stomach. The examiner noted that records in the Veteran's claims file showed that he was separated from service because of motion sickness, and acknowledged the Veteran's complaint that he still suffered from "rare occasions of nausea." A physical examination of the digestive system was negative for tenderness or masses felt. An X-ray of the kidney, ureter, and bladder was essentially unremarkable, and a gastrointestinal series showed a "[d]eformed duodenal bulb, suggesting duodenal ulcer, to be evaluated on clinical findings. Ulcer niche not demonstrated." A June 1958 Certificate of Attending Physician by Dr. D.C.M. states that in September 1957, the Veteran was examined for "symptoms compatible with Duodenal Ulcer." Evidence received since the June 1958 rating decision includes lay statements from the Veteran's wife, son, and brother, stating essentially that the Veteran has had problems with his stomach for a very long time, and VA treatment records and private treatment records from Henry Mayo Newhall Memorial Hospital, Gastrointestinal Medical Center, Santa Clarita Gastroenterology Medical Group, and Dr. S.P.H. The Veteran's VA and private treatment records document his current complaints and treatment regarding peptic ulcer disease. Among these records is a July 2010 treatment record from Dr. S.P.H., which notes the Veteran reported that his history of epigastric abdominal pain dated back to 1952, when he served in the military, and that he had "APCs" prescribed in service. After a physical examination, peptic ulcer disease was assessed. Dr. S.P.H. stated that the Veteran's peptic ulcer disease "developed in the military," and noted that the Veteran still continued to experience epigastric abdominal pain. Dr. S.P.H. also noted that the Veteran had "requested VA compensation for being ill." Reopening of the Claim The Board finds that the evidence received since the June 1958 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses the unestablished fact necessary to substantiate the Veteran's claim of service connection for peptic ulcer disease. Specifically, the claim was denied in June 1958 based on findings that an ulcer was not manifested in service, and was not manifested until three years after the Veteran's separation from service in September 1957 (in essence, that it was unrelated to service). Evidence received since the June 1958 rating decision includes a July 2010 treatment record from Dr. S.P.H. in which he opines, essentially, that the Veteran's peptic ulcer disease had its onset in service. Although there is no indication that Dr. S.P.H. had familiarity with the Veteran's actual medical history, and his medical opinion appears to be based entirely on the Veteran's accounts, for purposes of reopening a new and material evidence claim, the Veteran's accounts are deemed credible. See Fortuck, 17 Vet. App. at 179-80 (In determining whether new and material evidence exists, the Board must "presume the credibility of the evidence and may not decline to reopen a claim for lack of new and material evidence merely because the proffered evidence is found to lack credibility"); see also Justus, 3 Vet. App. at 513. Accordingly, the Board finds Dr. S.P.H.'s July 2010 medical opinion to be competent evidence that relates to the matter of a nexus between the Veteran's current peptic ulcer disease and his service, and therefore raises a reasonable possibility of substantiating the claim. Thus, the additional evidence received is new and material and is sufficient to reopen the claim of service connection for peptic ulcer disease. ORDER The appeal to reopen a claim of service connection for peptic ulcer disease is granted. REMAND The RO denied the Veteran's claim of service connection for peptic ulcer disease on the basis that new and material evidence had not been received to reopen a prior final decision. The decision above reopens such claim, finding that new and material evidence has been received. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's claim of service connection for peptic ulcer disease on its merits, and the Veteran has not waived his right to their initial consideration, the Board finds that a remand is necessary for the RO to adjudicate the Veteran's claim in the first instance. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) The RO should review the entire record, make any credibility assessments indicated, and arrange for any further development warranted (to include a new VA examination to determine the medical plausibility of the Veteran's accounts and/or to determine whether his current peptic ulcer disease is etiologically related to his service, if such is indicated). Then the RO should readjudicate (based on de novo review) the Veteran's reopened claim of service connection for peptic ulcer disease. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs