Solomon v. Brown

6 Vet. App. 396, 1994 U.S. Vet. App. LEXIS 274, 1994 WL 117083
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 8, 1994
DocketNo. 92-1391
StatusPublished
Cited by33 cases

This text of 6 Vet. App. 396 (Solomon 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
Solomon v. Brown, 6 Vet. App. 396, 1994 U.S. Vet. App. LEXIS 274, 1994 WL 117083 (Cal. 1994).

Opinion

MANKIN, Judge:

Bruce W. Solomon (appellant) appeals a September 4, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for a postoperative duodenal ulcer, denying reopening of a claim for service connection for a low-back disorder, and denying an increased rating for residuals of a small bowel resection, currently rated as ten percent disabling. The appellant claims the Board erred in declining to reopen his claim for a low-back disorder as caused by either an in-service injury or as secondary to an in-service appendectomy because it failed to determine whether the evidence submitted by the appellant was new and material. We hold that the evidence submitted by the appellant is new and material, and therefore this claim will be remanded. However, we also hold that there is no new and material evidence as to the appellant’s claim that his back condition was aggravated by service or that it was a secondary result of the use of spinal anesthesia during an in-service operation, and therefore this portion of the Board’s decision will be affirmed.

The appellant further claims the Board erred in denying service connection for the postoperative duodenal ulcer because he asserts it is secondary to service-connected disabilities. The Board found that the ulcer was not caused by current service-connected disabilities. We hold that this determination is not clearly erroneous, and accordingly will affirm the Board on this matter. However, the Board failed to consider that the ulcer may have been related to the low-back disorder, and shall be required to consider this issue on remand if the Board determines that the back condition is service connected.

Finally, the appellant asserts that the Board’s determination that he is not entitled to an increased rating for residuals of a small bowel resection is clearly erroneous. However, the Board’s decision is supported by a plausible basis and, accordingly, the Court will affirm these findings of the Board.

I. Factual Background

The appellant served in the United States Army from September 1952 to September 1954. In April 1953, an appendectomy was performed on the appellant, during which he was administered a spinal anesthetic. The appellant argues that he has had continuous lower back pain as a result of this spinal anesthetic, or, alternately, as a result of a back injury incurred while in service. He sought treatment for the pain in December 1953, and the medic prescribed hot showers and aspirin for back strain. In 1965, the appellant had back surgery, during which his [399]*399L5-S1 disc was removed, and degenerative arthritis was noted.

In 1969, the appellant was service connected at zero percent for the appendectomy sear, and service connection for a back disability was denied. The decision was not appealed. In 1977, after complaining of severe abdominal pain, the appellant was diagnosed with a bowel obstruction. The appellant’s doctor opined that the bowel obstruction was secondary to the ruptured appendix, which had occurred in service.

In 1983, the appellant suffered a perforated duodenal ulcer, which was over-sewn. He had continued problems with his stomach, including a vagotomy, antrectomy and Bill-roth I, and gastrointestinal bleeding. The appellant’s medical history indicated a long history of taking aspirin and Feldene for relief of arthritis.

In 1986, the small bowel resection was service connected as secondary to the appendectomy and rated at ten percent disabling. Service connection for the duodenal ulcer was denied, however. The appellant did not appeal this determination. In May 1989, the appellant submitted a claim for an increased rating for his service-connected disabilities and attempted to reopen his claims for service connection of his ulcer and low-back disorder. The claims were denied by a confirmed rating decision of August 1989. A Notice of Disagreement was filed in November 1989.

The appellant submitted several documents from Alexander Jacobs, M.D., in which the doctor stated his opinion that the appellant’s ulcer and low-back disorder were the secondary result of the appellant’s ruptured appendix in service. By a decision dated April 3,1991, the Board remanded the appellant’s appeal to the VA Regional Office to obtain a current examination and opinion from a specialist regarding the extent of the small bowel resection residuals. The examining physician found:

The etiology of the [appellant’s] peptic ulcer disease is due to non-steroidal anti-inflammatory medications including Fel-dine [sic] and aspirin in 1983. The degree and amount of small bowel resection in 1977 is insufficient to lead to or cause the recurrence of duodenal ulcer disease. Gastric hyper-secretory states occur only with large or massive small bowel resections. The status only persists for a period of three to six months after such a resection. The resection of 13 inches of the distal ileum is insufficient to produce any type of hyper [sic] secretory status. Therefore, it is the examiner’s opinion that the small bowel resection in 1977 bears no causal relationship to the occurrence of duodenal ulcer disease in 1983.

In June 1991, a confirmed rating decision was issued denying the appellant’s claims.

In August 1991, the appellant submitted additional documentation from Hal S. Crane, M.D., in which the doctor opined that the appellant’s low-back disorder was of service-related origin. Another confirmed rating decision was issued in August 1991. The Board’s September 4, 1992, decision agreed with this determination, and the present appeal followed.

II. Analysis

A. New and Material Evidence

The appellant contends that the Board erred in determining that he did not submit new and material evidence to reopen his claim. The appellant advances several theories by which he contends he should be service connected. First, the appellant asserts service connection should be granted for his back condition because it resulted from either a back injury incurred while in service or as secondary to his in-service appendectomy. In order to determine if a claimant has presented new and material evidence, the Court will conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). This analysis requires that two findings be made to conclude that the evidence is new and material — there must be a finding that the evidence is, first, new and, second, that it is material. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is new where it is not merely cumulative or repetitious of evidence already of record. Id. at 174. If the evidence is not new, there is no need to determine whether the evidence is material. See Manio, 1 Vet.App. at 145. Newly presented evidence is material where [400]*400it “is relevant and probative of the issue at hand.” Colvin, 1 Vet.App. at 174. Furthermore, material evidence is that which creates “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Id.

Whether newly submitted evidence is new and material is a question of law which this Court reviews de novo. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992).

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 396, 1994 U.S. Vet. App. LEXIS 274, 1994 WL 117083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solomon-v-brown-cavc-1994.