Citation Nr: 1300294 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-35 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for reactive airway disease/ bronchitis with chronic cough, including as due to undiagnosed illness. 2. Whether new and material evidence has been received to reopen a claim of service connection for ulcerative colitis/Crohn's disease, including as due to undiagnosed illness. 3. Whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder, including as due to undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1987 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Baltimore, Maryland Department of Veterans Affairs (VA) Regional Office (RO). In his September 2008 substantive appeal on VA Form 9, the Veteran requested a hearing before the Board. In May 2011, he withdrew his request for such hearing, scheduled in June 2011. In September and November 2012, the Veteran submitted additional evidence with waivers of initial AOJ consideration. The issues of service connection for reactive airway disease and ulcerative colitis on de novo review and whether new and material evidence has been received to reopen a claim of service connection for a seizure disorder are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. An unappealed January 2006 Board decision denied service connection for reactive airway disease, based on findings that such disability is a known clinical diagnosis (and not an undiagnosed illness), and that it was not manifested in, or shown to otherwise be related to, the Veteran's active duty service. 2. Evidence received since the January 2006 Board decision includes medical evidence that suggests that the Veteran's current respiratory disability may be related to environmental exposures in service. 3. An unappealed January 2006 Board decision denied the Veteran service connection for ulcerative colitis based on findings that such disease is a known clinical entity (and not an undiagnosed illness), and was not manifested in, or shown to be related to, the Veteran's active duty service. 4. Evidence received since the January 2006 Board decision includes medical literature suggesting that posttraumatic stress disorder (PTSD) (for which the Veteran has established service connection) may exacerbate Crohn's disease. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for reactive airway disease may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. New and material evidence has been received, and the claim of service connection for ulcerative colitis may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch this decision grants in full those portions of the claims that are addressed, there is no reason to belabor the impact of the VCAA on these matters, since any notice error or duty to assist omission is harmless. B. Legal Criteria, Factual Background, and Analysis A January 2006 Board decision upheld the denial of the Veteran's original claim of service connection for reactive airway disease, based on findings that such disability is a known clinical diagnosis (and not an undiagnosed illness) and was not manifested in, or shown to be related to, his active duty service. That decision also denied service connection for ulcerative colitis (likewise based on findings that such disability is a known clinical entity, and not an undiagnosed illness; and was not manifested in, or shown to be related to, the Veteran's service. The Veteran did not appeal this decision, and it is final. 38 U.S.C.A. § 7104(b). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "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 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to gastrointestinal signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theatre of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non- medical indicators that are capable of independent verification. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system) (no pertinent evidence was found in Virtual VA) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Evidence of record in January 2006 included the Veteran's STRs. In February 1989, he endorsed a history of persistent cough and asthma. He was not seen for treatment of reactive airway disease or ulcerative colitis. His service personnel records included a March 1991 notation that he was deployed to Kuwait from February to March 1991 and was "exposed to heavy atmospheric smoke generated by numerous (in excess of 500) oil well fires. The likelihood and nature of any potential long-term health hazard as a result of exposure are unknown at this time." Postservice medical evidence includes a June 1993 VA examination report showing that on clinical evaluation the Veteran's respiratory system was clear to auscultation and percussion. For the digestive system, the findings included no organomegaly, normoactive bowel sounds, and negative for masses. Kaiser Permanente records from 1997 to 2004 show treatment for ulcerative colitis, bronchitis and cough. A June 2002 record shows a diagnosis of cough of undetermined etiology. November 1995 treatment records from Howard University Hospital show treatment for colitis. May 2001 treatment records from Southern Maryland Hospital Center show treatment for chest pain. A May 2001 treatment record from Holy Cross Hospital shows pneumothorax and chronic cough. An October 2001 VA examination report notes that the Veteran's lungs were clear to auscultation bilaterally, but on forced expiration, the expiratory phase was prolonged. The diagnoses were ulcerative colitis and reactive airway disease (etiology unstated). Also of record were lay statements from persons who had observed the Veteran's chronic coughing at work. In an August 2003 letter, Dr. Gayoso noted that recent events at work had resulted in acute stress/anxiety, which adversely affected the Veteran's ulcerative colitis. In a January 2005 letter, Dr. Tseng stated that the Veteran likely has pulmonary disease associated with underlying inflammatory bowel disease; and referred him to Johns Hopkins University Hospital for further evaluation. A May 2005 VA examination report notes a history of productive cough, and ulcerative colitis since 1995. The diagnosis was chronic productive cough with bronchiectasis, more than likely a pulmonary complication of ulcerative colitis. The examiner stated that the Veteran's cough began in September 2000, and STRs do not demonstrate any respiratory problems in service. On the basis of the Veteran's history, military and civilian medical records, examination and test results, he opined that it is unlikely that there is a nexus between the Veteran's lung condition and his exposure to smoke from oil fires during the Persian Gulf War. Evidence received since the January 2006 Board decision includes a February 2008 note from Drs. Bennett and Stein, P.C. (specialists in Colon & Rectal Surgery) indicating that the Veteran had undergone surgery (and would not be able to work). 1997 to 2009 Kaiser Permanente records show treatment for bronchiectasis and Crohn's Disease. January 2008 treatment records from Holy Cross Hospital show treatment for colitis. A January 2009 VA examination report shows lungs fields were clear to auscultation. On digestive system evaluation, the abdomen was flat, bowel sounds were decreased, there were no masses or tenderness, an ileostomy was noted. 2008 to 2011 VA treatment records show the Veteran received treatment for cough, Crohn's disease, and bronchiectasis; a December 2009 record notes a deployment health education consultation. August 2011 and October 2011 treatment reports from Carolina Pulmonary and Critical Care show treatment for bronchiectasis. A September 2012 letter from Dr. Flume notes that the Veteran is a Persian Gulf War veteran with occupational exposure to various noxious materials. He states that it is a reasonable hypothesis that the Veteran's lung disease could be related to occupational exposures (in the Persian Gulf); he expressed the suspicion that the Veteran had a predeployment examination that was negative for lung disease. Also submitted was an internet article entitled, "PTSD Correlates with Disease Activity in Crohn's," which indicates that symptoms of PTSD are prevalent with exacerbations of Crohn's disease. The Board finds that the evidence received since the January 2006 Board decision is new and material, as it was not of record at the time of that decision and directly addresses the unestablished facts necessary to substantiate the Veteran's claims of service connection for reactive airway disease and ulcerative colitis. Specifically, service connection for reactive airway disease claim was denied based on findings that such disease is a known clinical diagnosis (and not an undiagnosed illness), and was not manifested in, or shown to be related to the Veteran's service. And service connection for ulcerative colitis claim was denied based on findings that that disease was a known clinical diagnosis (and not an undiagnosed illness) and also was not manifested in, or shown to be related to, the Veteran's service. The evidence received since the January 2006 Board decision includes a medical opinion by Dr. Flume suggesting that the Veteran's respiratory disability may be related to occupational exposures in service, and an internet article that indicates that PTSD (which the Veteran has service-connected) may aggravate Crohn's disease. As such evidence is new and directly addresses the bases for the prior denials of the Veteran's claims, it is both new and material. It raises a reasonable possibility of substantiating these claims. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Therefore, these claims must be reopened. . ORDER The appeal to reopen claims of service connection for reactive airways disease and for ulcerative colitis is granted. REMAND While the notice provisions of the VCAA appear to be satisfied, a review the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of his claims. Under 38 C.F.R. § 3.159(c)(4), an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that requirement (c) (i.e., that there be evidence that a disability may be associated with service) is a low threshold requirement. The Veteran contends that he has bronchiectasis as a result of exposure to oil fires while in service. A March 1991 administrative record notes that when the Veteran was deployed in Kuwait during Desert Storm, he was exposed to smoke from oil fires. While he was afforded a VA examination, in light of Dr. Flume's opinion submitted in the interim, another VA examination (that encompasses consideration of the entire record, including Dr. Flume's opinion) is indicated.. The record does not include a VA medical examination/opinion that addresses the proposed (secondary service connection) theory of entitlement tot service connection for Crohn's disease. In light of the submission of [internet-based] medical literature that supports that theory, an examination to secure a medical advisory opinion in the matter is necessary. Regarding all of the claims, pertinent treatment records appear to be outstanding. A January 2008 VA treatment record notes that Kaiser Permanente (where the Veteran was treated for bronchiectasis, Crohn's and seizures) records from November 1995 to January 2008 were reviewed electronically on the Computerized Patient Record System (CPRS)(which is not accessible to the Board). There are no Kaiser Permanente records for 1995 and 1996 associated with the current record. (i.e., claims file and Virtual VA) Furthermore, a January 2010 deferred rating decision notes that November 2009 records in the CAPRI system (also not accessible to the Board) show treatment by a pulmonologist in Georgetown. In addition, an August 2011 letter from Dr. Kirschenfeld notes that he had scheduled the Veteran for a high-resolution computed tomography (HRCT) to evaluate his bronchiectasis; records related to that procedure are not available. An October 2011 treatment record from Lexington Medical Center is incomplete. In a September 2012 letter, Dr. Flume states that he treated the Veteran at the Medical University of South Carolina; and that the Veteran's most recent hospitalization was in March 2012. As the letter notes all three disabilities at issue, records of the treatment identified must be secured. Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of the complete records of treatment the Veteran received for the disabilities at issue that exist in the CAPRI and CPRS records storage systems (and have not been associated with the record available for review). The RO should ask the Veteran to identify the provider(s) of any (and all) further evaluations or treatment he has received for respiratory disability, Crohn's disease and seizures ( records of which are not already associated with the claims file), and to provide the releases necessary for VA to secure records of any such private evaluation or treatment. Of particular interest are records of the treatment he received from Kaiser Permanente in 1995 and 1996; records from the pulmonologist in Georgetown who evaluated him; records pertaining to the HRCT scheduled by Dr. Kirschenfeld; and records from Lexington Medical Center and Medical University of South Carolina. If any private provider does not respond to the RO's request for records identified, the Veteran should be so advised, and further advised that ultimately it is his responsibility to ensure that private treatment records are received. 2. The RO should then arrange for the Veteran to be examined by a pulmonologist to ascertain the likely etiology of his respiratory disorder (to include chronic bronchitis with cough and bronchiectasis), and specifically whether or not it is related to his exposure to oil fires in service. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran (to include any studies deemed necessary), the examiner should provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each respiratory disability entity found/shown by the record. As to each respiratory disability entity diagnosed. Please opine whether such is at least as likely as not (a 50% or better probability) related to the Veteran's active duty service (to include as due to exposure to environmental hazards/smoke and fumes from fires therein). (b) If no chronic respiratory disability entity is diagnosed, please reconcile such finding with the clinical records that show treatment for respiratory complaints (and also indicate whether or not the Veteran has an undiagnosed respiratory illness). The examiner must explain the rationale for all opinions. 4. The RO should also arrange for the Veteran to be examined by an appropriate physician to ascertain the likely etiology of his Crohn's disease (and specifically whether or not it was caused or aggravated by his service-connected PTSD). The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Please opine whether it is at least as likely as not (a 50% or better probability) that the Veteran's Crohn's disease/ulcerative colitis is related directly to his active duty service (i.e., was incurred or aggravated therein). (b) If Crohn's disease is deemed to not be related directly to the Veteran's service please opine further whether or not such disease was caused or aggravated by his service-connected PTSD? If the conclusion is that the Crohn's disease was not caused, but was aggravated, by the service-connected PTSD, please identify the degree of disability(in terms of symptoms and functional impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature as deemed appropriate. 5. The RO should then re-adjudicate the claim (the respiratory and Crohn's disease claims de novo; the seizure disorder claim in light of pertinent additional evidence received pursuant to the requests above. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs