Citation Nr: 1506861 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 12-35 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for irritable bowel syndrome (IBS), to include diverticulitis of the colon, previously claimed as gastroenteritis, and if so whether the claim should be allowed. 2. Entitlement to a compensable rating for sleep apnea. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran had active service from December 2001 to August 2008. This matter came before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a videoconference in June 2013. A transcript thereof is contained within Virtual VA. In addition to the paper claims file, there are paperless, electronic claims files, Virtual VA and Veterans Benefits Management System (VBMS) associated with this appeal, a review of which does not reveal anything pertinent to the present appeal, except the transcript of the videoconference and VA treatment (CAPRI) records. For the reasons stated below, the application to reopen the claim for service connection for IBS, to include diverticulitis of the colon, previously claimed as gastroenteritis, is granted but further development is required prior to de novo adjudication of this claim. The issues of de novo adjudication of the claim for service connection for IBS, to include diverticulitis of the colon, previously claimed as gastroenteritis, and entitlement to a compensable rating for sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED. FINDINGS OF FACT 1. The Veteran did not appeal a February 2010 rating decision denying service connection for gastroenteritis, of which he was notified that month and that decision is final. 2. The evidence received since the February 2010 rating decision is new and material for the purpose of reopening the claim. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying reopening of a claim for service connection for gastroenteritis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2014). 2. New and material evidence, when considered with the old evidence, is sufficient to reopen the claim for service connection for IBS, to include diverticulitis of the colon, previously claimed as gastroenteritis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist By letter in September 2011 the RO satisfied its duty under the Veterans Claims Assistance Act of 2000 (VCAA) to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the Veteran was notified of the information and evidence necessary to substantiate the claims connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. It also notified him of the way initial disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The United States Court of Appeals for Veterans Claims (Court) had held in Kent v. Nicholson, 20 Vet. App. 1 (2006) that in a new and material evidence claim, the VCAA notice must include not only that evidence and information needed to reopen the claim and the elements required for claim substantiation, but also the reason(s) for the prior denial, i.e., which element(s) was not previously substantiated. Kent v. Nicholson, 20 Vet. App. 1 (2006). In a precedential opinion the VA Office of the General Counsel held in VAOPGCPREC 6-2014 that Kent v. Nicholson, 20 Vet. App. 1 (2006) was no longer valid because of subsequent decisions of the U.S. Court of Appeals for the Federal Circuit in Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed.Cir.2007) and Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed.Cir. 2009) (Vazquez-Flores II), and because of revisions in 2012 to 38 U.S.C.A. § 5103(a) by Pub.Law No. 112-154, §504(a), 126 Stat. 1165, 1191 (2012). VAOPGCPREC 6-2014 determined that the VCAA only requires claim-specific notice and not case-specific notice. Thus, there was no requirement to provide notice of the reason(s) for the prior denial, i.e., (the elements for claim substantiation that were found not to exist). As to the duty to assist, regarding the application to reopen the claim for service connection, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation, as required by 38 U.S.C.A. § 5103A. The Veteran's service personnel records and his available service treatment records (STRs) are on file. His private and VA treatment records are on file. He has been afforded a VA nexus examination. 38 C.F.R. § 3.103(c)(2) requires that a presiding official fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board videoconference in this case focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. The Veteran has not alleged that there was any deficiency with respect to the hearing, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). While assistance is required, 38 C.F.R. § 3.103(c)(2) does not require that one presiding at a hearing pre-adjudicate a claim. Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam). As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance for the purpose of adjudicating whether new and material evidence has been submitted to reopen the claim for service connection for IBS, to include diverticulitis of the colon, previously claimed as gastroenteritis. However, for the reasons which follow, de novo adjudication of this claim is deferred pending further development. Principles of Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See 38 U.S.C.A. §§ 1110, 1131; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Historically, the Veteran was notified in June 2009 of a rating decision that month which denied service connection for gastroenteritis. He did not appeal that decision. That decision noted that although the complete STRs were not available, he had been treated during active military service for gastroenteritis in June and July 2002 but that no permanent residual or chronic disability subject to service connection was shown by the STRs or demonstrated by postservice evidence. VA outpatient treatment (VAOPT) records reflect that he was seen after service in May 2009 when dehydration and gastroenteritis were a concern. Service connection for gastroenteritis was denied because it was only a temporary condition which resolved without permanent residuals during or following service. A February 2010 rating decision, of which the Veteran was notified that month, confirmed and continued the denial of service connection but the Veteran did not appeal that decision. In June 2011 he applied to reopen that claim. That decision noted that additional STRs revealed additional treatment for gastroenteritis in July 2008, shortly before discharge from active service. Also, an official examination in 2009 reflected that the Veteran related a history of having had gastroenteritis and that he complained of gastrointestinal (GI) symptoms but there was no current diagnosis of a GI disorder. The February 2012 rating decision which is appealed found that the additional evidence was new and material for the purpose of reopening the claim for service connection. Specifically, the new and material evidence consist of private clinical records from the Family Medicine Associates in 2011 which demonstrated that in June 2011 the Veteran had a history of alcohol abuse. The diagnoses were hepatitis and alcoholism. In June 2011 he had GI complaints of nausea, vomiting, and diarrhea. He reported that he had had similar symptoms during service and he thought that the current symptoms might be related to the symptoms he experienced during service. The impressions were gastroenteritis and alcoholic steatohepatitis. Regardless of how the RO ruled on the question of reopening, the Board must decide that matter in the first instance. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For applications to reopen, such as this, received on or after August 29, 2001, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. "Material" evidence is evidence that 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 and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). The focus is not exclusively on whether the evidence remedies the principal reason for denial in the last prior decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new and material if, and assuming its credibility, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. However, VA will not provide a VA nexus examination in the reopening context but will if the claim is reopened. 38 C.F.R. § 3.159(c)(4). Here, the RO found that the new and material evidence warranted a VA nexus examination, which was conducted in January 2012. A January 2012 VA GI examination noted that the Veteran now complained of diarrhea 2 to 3 times weekly with occasional episodes of bowel disturbance. The diagnosis was IBS. The examiner reported that the Veteran's current symptoms, involving cramping and lower abdominal pain, were consistent with symptoms of the lower GI tract as opposed to those which the Veteran experienced during service, which related to his stomach, i.e., the upper GI tract. The examiner opined that the Veteran's current IBS was less than likely related to his gastroenteritis in-service. The rationale was that viral gastroenteritis is a short lived viral infection which affected the lining of the GI tract and caused severe, but short term symptoms. Gastroenteritis resolved when the infection cleared and did not predispose one to or lead to chronic GI disease. Subsequently, the Veteran submitted a December 2012 private clinical record which documents that he now has colonic diverticulitis. At the videoconference the Veteran testified that he had first had GI symptoms during service when overseas in the Gulf War in about 2004, at which time he had had nausea and abdominal pain. Subsequently during service he was even treated with intravenous fluids but after an evaluation the medical personnel could not provide a definitive answer as to what the Veteran had. Page 6. In the last couple of years he had been treated by VA for the same symptoms and upon evaluation it was found that he had diverticulitis of the colon, for which he was given antibiotics and pain medication. Page 6. The Veteran testified that his treating physicians were of the opinion that the symptoms which he had now, being the same as the symptoms during service, were due to diverticulitis of the colon which he had during service. Pages 8 and 9. However, he was not sure whether this had been recorded, i.e., put into writing. Page 9. Analysis The Board concurs that the additional private clinical records justify reopening of the claim because these include a diagnosis of gastroenteritis, which was the same diagnosis the Veteran had during service. Indeed, this was the reason that the Veteran was provided a VA nexus examination in January 2012. In Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (where the issue was aggravation of pes planus) the Court stated that, where there was an application to reopen a claim, because the Board had remanded the case for an examination to determine the nature and severity of the claimed condition, the examination would not have been necessary unless the claim was to be adjudicated on the merits. In Falzone, at 404, the Court held that in rendering such assistance (i.e., obtaining a VAX before reopening) "the Board performed a "de facto reopening" of the claim. Therefore, since there is new and material evidence, the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, prior to de novo adjudication further development of the case is required. ORDER New and material evidence having been submitted, the Veteran's claim for service connection for IBS, to include diverticulitis of the colon and gastroenteritis, is reopened. REMAND The STRs show that the Veteran was given Phenergan in March 2008 for gastritis and again in July 2008 for gastroenteritis. The January 2012 VA examiner stated that the Veteran had gastroenteritis during service which was limited in its effect to the upper GI tract. However, the Board notes that a July 16, 2008, STR states that the Veteran had "other and unspecified noninfectious gastroenteritis and colitis [italics added]." In this regard, the Board notes that colitis affects the lower GI tract. Thus, the clinical history reported by the January 2012 VA examiner is not completely accurate. Thus, the opinion rendered requires clarification. The Veteran was scheduled for a VA rating examination with respect to his claim for a compensable rating for sleep apnea in October 20011 but he failed to attend. At the videoconference he testified that he did not use a "CPAP" machine and that this disability was actually better than it had been during military service which he felt was due to a combination of exercising, eating more fiber and having stopped drinking and stopped smoking. Pages 3 through 5 of the transcript of the videoconference. He had last been treated for this disability during service but he would still, from time to time, awaken at night with a sensation as if he had been holding his breath. Page 3. When he was scheduled for his VA rating examination he had called VA and stated that he would be unable to attend that rating examination because he would be traveling at the time of the scheduled examination. However, he would attend any additional examination which might be needed. Pages 4 and 5. In the judgment of the Board, the Veteran has established good cause for not having attended the previously scheduled VA rating examination. In light of this, the Veteran should be afforded an up-to-date VA rating examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to state whether he has received any private or VA treatment or undergone any hospitalization since discharge from service in August 2008 for sleep apnea and, if so, at which private or VA facility(ies). The RO should then obtain these records for association with the claims folder. Also, the Veteran should be contacted and requested to submit any medical statements, such as the opinions of his treating physicians to which he testified at the videoconference, in support of his claim for service connection for IBS, to include diverticulitis of the colon, previously claimed as gastroenteritis. 2. Obtain an addendum opinion from the January 2012 VA examiner which addresses the significance, if any, of the July 2008 STR which noted that the Veteran had "unspecified noninfectious gastroenteritis and colitis." Specifically, the examiner is requested to clarify whether it is as likely as not that the above cited STRs, together with the evidence as a whole, demonstrates that the Veteran had a chronic disorder of the lower GI tract during active service. 3. Schedule the Veteran for an appropriate examination for the purpose of evaluating the severity of his service-connected sleep apnea. The examination should include any tests or studies deemed necessary for an accurate assessment. The claims folder should be made available to the examiner for review before the examination. The examiner should document whether the Veteran has persistent day-time hypersomnolence; whether the use of a breathing assistance device is required; and whether there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or which requires or has required a tracheostomy. 4. Advise the Veteran of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2104). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to the examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Then, the RO should review the claim folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. Then, the RO should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and afford the Veteran an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs