Dolan v. Brown

9 Vet. App. 358, 1996 U.S. Vet. App. LEXIS 757, 1996 WL 511870
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 4, 1996
DocketNo. 94-589
StatusPublished
Cited by12 cases

This text of 9 Vet. App. 358 (Dolan v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dolan v. Brown, 9 Vet. App. 358, 1996 U.S. Vet. App. LEXIS 757, 1996 WL 511870 (Cal. 1996).

Opinion

FARLEY, Judge:

This is an appeal from a July 8, 1994, Board of Veterans’ Appeals (BVA or Board) decision which determined that new and material evidence sufficient to reopen a claim for service connection for a duodenal ulcer had not been submitted. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the BVA decision.

I. BACKGROUND

The appellant served in the U.S. Army from November 1953 until his medical discharge in February 1955. Record (R.) at 189. An October 1950 x-ray report from St. John’s Hospital noted that while no “definite evidence of ulcer crater is seen[,] [t]he findings are indicative of a duodenal ulcer.” R. at 16. The appellant had reported a history of an ulcer condition upon being drafted in 1951, but a March 1951 examination at Fort Jay did not confirm this history. R. at 17. Nevertheless, he received a dependent deferment and did not enter the service at that time. R. at 36. He was drafted again in 1953, and although the report from his prein-duetion examination noted that the appellant had a “history of [an] ulcer,” the examiner reported that the condition was not verified in March 1951 and found the appellant to be qualified for service. R. at 17,242.

A March 1954 gastrointestinal series of x-rays revealed “contraction and irregularity of outline [of the duodenal cap] which may be due to scar formation from previous ulceration. ... No evidence of an active ulcer is noted at this time.” R. at 46. An April 1954 examination at Fort Dix also did not reveal an active ulcer. R. at 86. In May 1954, the appellant went overseas. Ibid. By August 1954, he was hospitalized due to a duodenal ulcer, and an x-ray report showed that his duodenal bulb was deformed and his ulcer was characterized as “probably currently active.” R. at 22. He was placed on medication and a “sippy” ulcer diet. R. at 22-23, 27-30, 33-35, 74. In a September 1954 medical record, an examining doctor stated: “In view of the chronic course of this patient’s illness it seems unlikely that he will be able to perform consistent duty in this the-ater_” R. at 35. X-rays taken in September and October 1954 also revealed that the appellant’s duodenal ulcer was “probably” active. R. at 97,101. A December 1954 x-ray showed “contraction and deformity of the duodenal bulb without the demonstration of an ulcer crater,” and the examiner’s impression was “[o]ld duodenal ulcer with residual deformity.” R. at 173.

In January 1955, a medical board found that the appellant was unfit for duty, and that the ulcer condition preexisted service and was not aggravated by service. R. at 142, 172, 177. In a letter to the Army’s physical review board, the appellant’s representative opposed the finding that the ulcer had not been aggravated by service. He argued that the appellant had been drafted after the Army determined that he did not have an ulcer even though the appellant had informed Army doctors of the ulcer, and that service had aggravated the ulcer. R. at 186-87. No response to this letter appears in the record, and the appellant was given a medical discharge in February 1955. R. at 189.

The appellant immediately applied for service connection. A March 14,1955, transmittal of records form indicates that the appellant’s service medical records (SMRs) were transferred to the Brooklyn, New York, regional office (RO), although the only form checked off among a list of forms listed as “INCLOSURES” is the appellant’s DD Form 214, i.e., his report of separation. R. at 191. On March 29, 1955, the RO requested that the “physical exam at induction only” be furnished, but the reply was that “[n]o medical records [were] found,” although at the bottom of the form, under the heading [360]*360“ORIGINALS (LOANED),” it was typed in that one “physical] exam[ination]/ent” had been previously loaned. R. at 193. The appellant’s wife submitted a statement, in which she reported that the appellant had had stomach problems when she first met him in 1950, but that the appellant was told by an Army doctor who examined x-rays that the appellant did not have an ulcer, but rather had a “tender duodenal cap.” R. at 196. She also noted that the appellant began to experience severe stomach pains and vomiting while stationed at Fort Dix, that he got worse when he went overseas, and was then sent home. R. at 196-97. In April 1955, the RO denied the claim, finding that the appellant’s condition preexisted service and was not aggravated by his time in service. R. at 201. The RO relied on (1) the fact that when hospitalized during service the appellant gave a history of gastric symptoms since the age of 16, and (2) the x-ray report from St. John’s Hospital. Ibid.

Soon after its decision, the RO received a letter from the appellant’s mother, in which she stated:

My son ... started having trouble with his stomach about 1950. He went to the doctor [who] suggested ... x-rays_ He went to St. John’s Hospital and had the x-rays taken, at which time they told him he had a suspicion of an ulcer_
At his preinduction physical they took x-rays at Fort Jay which proved negative .... He didn’t have any real trouble with his stomach until he was inducted in the Army in 1953. While he was at Fort Dix he began to get sick again. They took more x-rays which again proved negative. He was sent overseas and his stomach got much worse, so they put him in the hospital where they took more x-rays which showed an ulcer.

R. at 205-06. The RO responded with a confirmed rating decision. R. at 208, 210. The appellant’s wife submitted another statement, in which she contended that the service “aggravate[d] [the appellant’s] stomach to the point of an active ulcer,” and that the SMRs “prove without any doubt that the [A]rmy did aggravate his stomach.” R. at 212-13, 216. The RO responded by informing the appellant that he needed to submit new and material evidence and by sending him an appeal form. R. at 219. There is nothing in the record on appeal that suggests that the appellant appealed the denial of his claim.

In October 1991, the appellant sought to reopen his claim. R. at 229. The RO denied the claim in November 1991. R. at 234. The appellant then submitted copies of his SMRs and other records. R. at 236-82. The RO received a December 1991 letter from Dr. Daniel L. Crane, who stated that he had treated the appellant for the last two years and that the appellant “constantly complained of severe gastrointestinal symptoms which he claims to have had since his time in the service.” R. at 284. The RO issued a confirmed rating decision in February 1992, finding that the submitted evidence was not material. R. at 288.

The appellant testified at a hearing in October 1992 (R. at 312-19) that, while he did have stomach problems prior to entering service, he did not have an ulcer and was first diagnosed with that condition in Germany. R. at 313-15. With regard to the 1950 x-ray, he argued that it did not provide a “definite indication that I ha[d] an ulcer.” R. at 315. In November 1992, the hearing officer found that the appellant had not submitted new and material evidence. R. at 321-22. In a May 1993 statement, Dr. Crane wrote that he had been treating the appellant for “several years.... Apparently, this ulcer developed whilst Mr. Dolan was serving in the armed forces in Germany in the middle 1950s.” R. at 337.

The- appellant testified at a hearing before the BVA in May 1993. R.

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Cite This Page — Counsel Stack

Bluebook (online)
9 Vet. App. 358, 1996 U.S. Vet. App. LEXIS 757, 1996 WL 511870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolan-v-brown-cavc-1996.