Citation Nr: 1311178	
Decision Date: 04/04/13    Archive Date: 04/19/13	

DOCKET NO.  09-30 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for Hirschsprung's disease.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel

INTRODUCTION

The Veteran served on active duty from August 1976 to August 1979.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

In a rating decision of August 1980, the RO denied entitlement to service connection for Hirschsprung's disease.  The Veteran voiced no disagreement with that determination, which has now become final.  Since the time of the August 1980 rating decision, the Veteran has submitted additional evidence in an attempt to reopen his claim.  The RO found such evidence neither new nor material, and the current appeal ensued.

This case was previously before the Board in June 2011, at which time it was remanded for additional development.  The case is now, once more, before the Board for appellate review.


FINDINGS OF FACT

1.  In a rating decision of August 1980, the RO denied entitlement to service connection for Hirschsprung's disease.  It was held that this was a congenital defect not a disability subject to service connection and it was not aggravated by service.  He was notified and did not appeal.

2.  Evidence received since the time of the RO's August 1980 decision denying entitlement to service connection for Hirschsprung's disease, by itself, or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the Veteran's claim.



CONCLUSIONS OF LAW

1.  The decision of the RO in August 1980 denying entitlement to service connection for Hirschsprung's disease is final.  38 U.S.C.A. §§ 5103, 5103A, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

2.  Evidence received since the time of the RO's decision in August 1980 denying entitlement to service connection for Hirschsprung's disease is new, but not material, and insufficient to reopen the Veteran's previously-denied claim.  38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met.  There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application.  VA notified the Veteran in correspondence of May and October 2008, and in June 2011, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim.  As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that a VA examination is in order.

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a videoconference hearing before the undersigned Veterans Law Judge in February 2011, as well as service treatment records, VA and private treatment records and examination reports, and a submitted Internet article.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Reopening a Claim

The Veteran in this case seeks service connection for Hirschsprung's disease, also known as congenital megacolon.  In pertinent part, it would appear that the Veteran is, in fact, arguing that Hirschsprung's disease, which admittedly preexisted his entry upon active military service, underwent an increase in severity beyond natural progress during his period of active military service.

In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (2012).

Congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases of injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c).

Notwithstanding the aforementioned, once entitlement to service connection for a given disorder has been denied by a decision of the RO, that decision, absent disagreement by the Veteran within a period of one year, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).  Where a claim for entitlement to service connection has been previously denied, and that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence has been presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers.  Evidence is "material" if, by itself, or when considered with previous evidence of record, it 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 (2012).  In addition, new evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals to alter its decision."  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In the present case, at the time of the aforementioned rating decision in August 1980, it was noted that a Medical Board report dated in July 1979 showed the Veteran to have been evaluated for recurring constipation.  Further noted was a history of hospitalization at six weeks of life with a diagnosis of congenital megacolon, followed by a sigmoid loop colostomy.  Reportedly, at approximately a year and a half of age, the Veteran underwent the surgical resection of his rectum and sigmoid colon, with a Swenson pull-through procedure.  A pathology specimen obtained at the time demonstrated the absence of ganglion cells in the myenteric plexus, consistent with a diagnosis of Hirschsprung's disease.  The Veteran's postoperative course was essentially unremarkable.  However, he did suffer from episodes of fecal incontinence up to the age of 18.  Reportedly, the Veteran was able to pass the physical examination for induction into the United States Marine Corps.  Residual scarring was noted on examination.  However, over the course of a few months, he experienced increasing problems with constipation requiring the chronic use of laxatives.  Moreover, he had been unable to find a satisfactory time for bowel movements due to his duties in the field and barracks life.  On physical examination, the Veteran's colon was quite dilated, consistent with both his surgical procedures and that of chronic constipation.  Moreover, in spite of a normal growth and development pattern, and his being able to pass the physical examination for induction, the Veteran was beginning to show the typical pattern of Hirschsprung's disease with a subsequent pull-through procedure.  Namely, he had been having problems with constipation associated with poor bowel habits.  Based on such findings, the Medical Board concluded that the Veteran did not meet the minimum standards for enlistment or induction, and was unfit for further military service by reason of physical disability not incurred in or aggravated by service.  

Subsequent VA examination showed a history of colon resection for Hirschsprung's disease with a main problem of constipation.  Sigmoidoscopy showed no mucosal lesions, while rectal biopsy revealed nonspecific inflammation of the lamina propria and rectal mucosa.

Based on the aforementioned, the RO denied entitlement to service connection for Hirschsprung's disease, considered a constitutional and/or developmental defect, and not a disability under the law.  Further noted was that constipation did not constitute aggravation beyond natural progress of the disease, but was rather a typical pattern for people who had Hirschsprung's disease with a subsequent pull-through procedure.  Significantly, the determination of the RO in August 1980 denying entitlement to service connection for Hirschsprung's disease was adequately supported by and consistent with the evidence then of record, and is now final.

Evidence received since the time of the August 1980 rating decision, consisting, for the most part, of additional records of the Veteran's inpatient hospitalization as a child (some of which appear to have been of record at the time of the August 1980 rating decision), various other unrelated private medical records, an Internet article, and the Veteran's testimony at a videoconference hearing in February 2011. While some of this is at least in part "new" in the sense that it was not previously of record, is not "material."  More specifically, those records show only treatment for the Veteran's Hirschsprung's disease as a very young child, as well as treatment for various other unrelated medical problems.  Significantly, since the time of the August 1980 rating decision, the Veteran has submitted no evidence whatsoever of postservice treatment for Hirschsprung's disease.  Nor has any evidence been submitted establishing a link between the Veteran's active military service and that pathology.  To the extent the Veteran appears to be arguing that his preexisting Hirschsprung's disease was, in fact, "aggravated" by his active military service, he has submitted no evidence in support of that claim.  Under the circumstances, the Board is of the opinion that the evidence submitted since the time of the August 1980 rating decision denying entitlement to service connection for Hirschsprung's disease does not constitute new and material evidence sufficient to reopen the Veteran's previously denied claim.  This is to say that, by itself, or when considered with the previous evidence of record, the newly-received evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim.  Accordingly, the application to reopen the claim regarding the issue of entitlement to service connection for Hirschsprung's disease must be denied.


ORDER

New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for Hirschsprung's disease is denied.


	                        ____________________________________________
	MICHAEL D. LYON
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs