Citation Nr: 1114686 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 10-32 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Whether new and material evidence was received to reopen a claim for entitlement to service connection for a gastrointestinal disorder, also claimed as amebic dysentery, ulcerative colitis, inflammatory bowel disease, and Crohn's disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the St. Paul, Minnesota, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA). The Board notes the Veteran's original claim was denied for amebic dysentery and ulcerative colitis which he asserted developed as a result of service in Korea and that in correspondence dated in April 2010 he asserted his gastrointestinal disorder was more appropriately addressed as Crohn's disease with diarrhea symptoms which began in service after a painting detail. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that reliance upon a new etiological theory is insufficient to transform a claim which has been previously denied into a separate and distinct, or new, claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). A new and material evidence determination is required when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). 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). FINDINGS OF FACT 1. An unappealed September 1958 rating decision denied service connection for ulcerative colitis and dysentery. A March 1959 Board decision denied entitlement to service connection for amebic dysentery. 2. Evidence added to the record since the March 1959 Board decision does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence was not received and the claim for entitlement to service connection for a gastrointestinal disorder, also claimed as amebic dysentery, ulcerative colitis, inflammatory bowel disease, and Crohn's disease, may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the Veteran in a July 2009 letter. That letter notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim to reopen and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The Veteran was adequately notified of these matters by the July 2009 VA correspondence. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). In this case, the available record includes service treatment records, private treatment reports, VA treatment and examination reports, and the Veteran's statements in support of the claim. The Board finds the notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. In correspondence dated in October 2010 the Veteran stated that he had no additional evidence to provide in support of his claim. Further attempts to obtain additional evidence would be futile. The Court has also held that when making a determination whether submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Board finds that based upon the evidence received in this case that there is no reasonable possibility that additional VA assistance could assist the Veteran in substantiating his claim. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. New and Material Evidence Claim VA law provides that service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). VA law provides that, in general, rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2010). Board decisions are final from the stamped mailing date on the face of the decision unless reconsideration is ordered, the decision is revised because of clear and unmistakable error (CUE), or a timely notice of appeal is received by the Court. 38 C.F.R. § 20.1100. In this case, a March 1959 Board decision denied entitlement to service connection for amebic dysentery. It was noted that the Veteran's service treatment records and separation examination were negative for a gastrointestinal disability or amebic dysentery, that there was no reference to dysentery on a July 1955 VA examination report, and that in his July 1955 claim the Veteran stated that amebic dysentery and ulcerative colitis began in February 1958. The decision noted private medical opinions submitted in support of the claim were considered. Previously, an unappealed September 1958 rating decision had denied entitlement to service connection for ulcerative colitis and dysentery. The Board finds these service connection determinations are final. There is no claim the decisions involved clear and unmistakable error. The pertinent evidence added to the record since the March 1958 determination includes VA and private treatment records noting diagnoses of Crohn's disease without opinion as to etiology. The Veteran also provided statements asserting that he had experienced severe diarrhea after working on a painting detail in 1954 with subsequent treatment on sick call in Seoul. He claimed that his Crohn's disease was the result of an amebic disease he acquired in Korea. Based upon a comprehensive review of the record, the Board finds the evidence added as to the claim for entitlement to service connection for a gastrointestinal disorder does not raise a reasonable possibility of substantiating the claim. The evidence obtained is essentially cumulative of the evidence previously considered. The evidence previously of record included private medical opinions with diagnoses of a chronic gastrointestinal disorder and the Veteran's statements that the disorder was incurred as a result of service. The Board finds that no new evidence was received indicating a nexus to an established event, injury, or disease during active service which if considered could reasonably result in substantiation of the claim. Therefore, the claim for entitlement to service connection may not be reopened. ORDER New and material evidence was not received to reopen a claim for entitlement to service connection for a gastrointestinal disorder, also claimed as amebic dysentery, ulcerative colitis, inflammatory bowel disease, and Crohn's disease; the appeal is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs