Citation Nr: 1315972 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 02-16 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for ulcerative colitis. 2. Entitlement to service connection for ulcerative colitis. 3. Whether new and material evidence has been received to reopen a claim for service connection for hiatal hernia. 4. Entitlement to service connection for joint pains, claimed to include as due to service during the Persian Gulf War. 5. Entitlement to a higher compensable rating for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran is a member of the Alabama Army National Guard who has a verified period of active military service from November 1990 to August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2002 rating decision and a subsequent rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in which the RO declined to reopen the claims for service connection for ulcerative colitis, hiatal hernia and joint pains. In January 2003, the Veteran was afforded a personal hearing before a Veterans Law Judge who is no longer employed at the Board. The Veteran was offered the opportunity to testify at another hearing with a VLJ; however, the Veteran did not respond. The Board will adjudicate the appeal based on the current record. In November 2003, the Board remanded the case for further development. In a May 2005 decision, the Board reopened and remanded the claim for service connection for joint pains to the RO for additional development and denied the reopening of the claims for service connection for ulcerative colitis and hiatal hernia on the basis that new and material evidence had not been received. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a May 2007 decision, the Court vacated a portion of the May 2005 Board decision, noting that the issue of service connection for joint pains was not currently before the Court, and remanded the case to the Board for readjudication consistent May 2007 decision. In January 2008, the Board remanded the case for further development and to comply with the Court's remand instructions. Since the requested development has not been fully completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for cervical strain was initially denied in an April 2009 rating decision. Although the Veteran submitted a notice of disagreement for that decision, he failed to submit a substantive appeal following the October 2011 Statement of the Case. The Veteran has not filed a claim to reopen this issue. Therefore, the issue of whether new and material evidence has been received to reopen a claim for service connection for cervical strain was incorrectly included in the most recent November 2012 supplemental statement of the case; it is not before the Board. The issues of service connection for joint pains, whether new and material evidence has been received to reopen the claim for service connection for hiatal hernia, and entitlement to an increased rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a November 1998 rating decision, the RO denied service connection for ulcerative colitis. The Veteran did not timely appeal the decision, and it is now final. 2. Evidence received since the November 1998 rating decision is new and material; it relates to unestablished facts necessary to substantiate the claim for service connection for ulcerative colitis and raises a reasonable possibility of substantiating the claim. 3. Ulcerative colitis had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for ulcerative colitis have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for ulcerative colitis have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. The Board is reopening and granting the claim for service connection for ulcerative colitis. Any error committed with respect to either the duty to notify or the duty to assist with regard to these issues was harmless and will not be further discussed. II. New and material evidence The RO denied reopening the claim for service connection for ulcerative colitis in November 1998, finding that the evidence submitted by the Veteran essentially duplicated evidence that was previously considered and was cumulative. The Veteran did not appeal this decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.160(d). In February 2002, the Veteran filed a request to reopen the claim for service connection for ulcerative colitis. 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 submitted. 38 U.S.C.A. § 5108. 'New' evidence is defined as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence received since the November 1998 rating decision includes statements from the Veteran, former service members and colleagues; a January 2003 hearing transcript; and VA and private treatment records. VA and private treatment records show a diagnosis of, and continuous treatment for, ulcerative colitis within one year of separation. Statements from the Veteran, former service members and colleagues state that the Veteran suffered from diarrhea during service in the Persian Gulf and suffered from symptoms of diarrhea, nausea, and rectal bleeding shortly after separation. This evidence is new and material, as it was not of record at the time of the last rating decision, and it relates to material elements of the claim. The evidence relates to the Veteran's contentions that his ulcerative colitis was incurred in service and that he has suffered from this condition since military service. Reopening the claim is warranted. 38 U.S.C.A. § 5108. III. Service connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records are silent for any treatment of symptoms relating to ulcerative colitis, including during the time of his deployment. The Veteran's separation examination was normal and it was noted in a Southwest Asia demobilization/redeployment medical evaluation that the Veteran did not have stomach pain, nausea, diarrhea, or bloody bowel movements. Private post-service records show that in April 1992, the Veteran was treated for diarrhea lasting two weeks and was diagnosed as having gastroenteritis. In December 1992, the Veteran was treated for epigastric burning, rectal bleeding, and diarrhea. The Veteran reported having diarrhea in service for which he took Imodium. An endoscopy revealed colitis. In January 1993, the Veteran underwent another endoscopy that revealed left-sided ulcerative colitis. During treatment in November 1993, the Veteran reported having diarrhea in service about three weeks after deployment to Saudi Arabia that continued until his return to the States. The Veteran was diagnosed as having left-sided ulcerative colitis. Subsequent VA and private treatment records reveal continuous and persistent treatment for the Veteran's ulcerative colitis. In a December 1996 statement, the Veteran's immediate supervisor stated that he had been the Veteran's supervisor since October 1989. The Veteran returned to work in August 1991 and since his return from the Persian Gulf, the Veteran complained of having diarrhea, nausea, and blood in his stool. Statements received in May 2002 from fellow service members and post-service colleagues state that the Veteran suffered from constant diarrhea during service and he suffered from diarrhea and rectal bleeding since service. J.W. was in the same company as the Veteran in Saudi Arabia and stated that the Veteran began complaining of having nausea, constant diarrhea and fatigue a few weeks after arriving there. He also personally knew that the Veteran went to sick call several times for treatment for these symptoms. The Veteran stated during the January 2003 hearing that when he sought treatment during service the medics just gave him Pepto-Bismol tablets and did not make a record of it. The longer he stayed, the worse it became. At separation in Fort Benning, the Veteran reported having diarrhea during service and that he went to sick call. He was told that it was just probably nerves and to seek treatment at the local VA. The Veteran's numerous statements relating to the inservice onset of diarrhea and recurrent post-service symptoms related to ulcerative colitis, including diarrhea, nausea, and rectal bleeding, are competent and credible because the matters are within lay observation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, his statements have been consistent and are supported by statements from fellow service members and post-service colleagues that provide independent first-hand observations of the Veteran's inservice and post-service symptoms. The Veteran's service treatment records are negative of any treatment or diagnosis relating to his claimed inservice diarrhea; however, the Veteran stated that he was treated by medics who did not make a record of his treatment and his complaints were not noted at separation. The Veteran's statements are credible and, as they are supported by the December 1996 and May 2002 lay statements and medical treatment a few months following separation, are highly probative. See Buchanan v. Nicholson, 452 F.3d at 1335. The competent, credible and persuasive evidence sufficiently places the onset of this condition in service and the medical evidence of record shows that the Veteran has continuously been treated for ulcerative colitis since service. VA has failed to demonstrate by a preponderance of the evidence that ulcerative colitis is not related to service and, accordingly, service connection for ulcerative colitis is warranted. ORDER New and material evidence having been submitted, the petition to reopen the claim for service connection for ulcerative colitis is granted. Service connection for ulcerative colitis is granted. REMAND In the previous remand, the Board requested all records from September 1991 to December 1992 from the Montgomery, Alabama, VAMC, in order to comply with the Court's May 2007 decision. There is no indication in the file that these records were requested. A remand is necessary on all the issues on appeal that were previously remanded to correct this deficiency. Additional VA treatment records are needed, and another examination for the Veteran's claimed joint pains must be obtained. The June 2012 examiner opined that the Veteran's diagnosed degenerative arthritis of the knees, hips and acromioclavicular joints were due to aging. The examiner did not consider the Veteran's statements of having pains in his joints during and since service; nor did the examiner provide a diagnosis or opinion relating to the Veteran's ankles. An appeal to the Board is initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished. The following sequence is required: there must be a decision by the RO; the claimant must timely express disagreement with the decision; VA must respond by issuing a SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. In March 2011, the RO granted service connection for bilateral hearing loss and assigned a noncompensable disability rating effective June 2, 2008. Subsequently in March 2011, the Veteran submitted a timely notice of disagreement disputing the effective date and the disability rating assigned. In October 2011, the RO granted an earlier effective date of March 28, 2008. The RO has not issued an SOC for the issue of entitlement to a compensable disability rating for bilateral hearing loss and no appeal has been perfected. There is no indication that the Veteran has withdrawn his NOD for an increased rating for bilateral hearing loss. Where a notice of disagreement has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC with respect to his claim seeking an increased rating for bilateral hearing loss, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service joint pains. The Veteran must be provided a reasonable amount of time to submit this lay evidence. 3. Obtain VA treatment records from Montgomery, Alabama, from September 1991 to December 1992. All efforts to obtain these records must be fully documented and a negative response must be provided if records are not available. 4. After associating all outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination to determine whether it is as likely as not (a 50 percent or greater probability) that any current disability associated with the Veteran's claimed joint pains are related to his active military service. In doing so, the examiner must acknowledge and discuss the Veteran's competent report as to the onset and recurrent symptoms of his joint pains. The Veteran's file must be provided to the examiner for review. All necessary tests must be conducted and the examiner must review the results of any testing prior to completion of the report. The examiner must provide a complete rationale for all conclusions. 5. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran an appropriate period of time to respond. The case is to then be returned to the Board for further appellate 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). 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 Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs