Citation Nr: 1328117 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 06-33 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hiatal hernia. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to hiatal hernia. 4. Entitlement to service connection for Barrett's esophagus, claimed as secondary to hiatal hernia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1971. The Veteran's DD Form 214 indicates that he was awarded the Combat Action Ribbon during service in the Republic of Vietnam from February 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A Board hearing was held before the undersigned by videoconference in May 2013. A transcript of this hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of such evidence. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for hiatal hernia was denied by an unappealed October 1996 rating decision. 2. The evidence received since the October 1996 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hiatal hernia. 3. The Veteran engaged in combat with the enemy during active service in the Republic of Vietnam. 4. The Veteran's hiatal hernia is etiologically related to an in-service injury. 5. The only competent, probative medical opinion of record indicates that the Veteran's GERD is etiologically related to his hiatal hernia. 6. The only competent, probative medical opinion of record indicates that the Veteran's Barrett's esophagus is etiologically related to his hiatal hernia. CONCLUSIONS OF LAW 1. The October 1996 rating decision that denied service connection for hiatal hernia is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 2. New and material evidence having been submitted, the claim for entitlement to service connection for hiatal hernia is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Service connection for hiatal hernia is warranted. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). 4. Service connection for GERD secondary to hiatal hernia is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012). 5. Service connection for Barrett's esophagus secondary to hiatal hernia is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duties to notify and assist is necessary. Petition to Reopen The Veteran's appeal regarding hiatal hernia arises out of his contention that he suffered an abdominal injury in Vietnam, and developed hiatal hernia as a result of that trauma. The Veteran's claim of entitlement to service connection for hiatal hernia was initially denied by an October 1996 rating decision on the grounds that he had (1) no in-service injury or (2) relationship between his hiatal hernia and service. The Veteran was notified of the October 1996 rating decision and his appellate rights by a letter dated October 4, 1996; however, he did not appeal. Further, as new and material evidence was not received during an applicable appellate period following this RO decision, there was no evidence for VA to evaluate as pending in conjunction with 1996 rating decision. 38 C.F.R. § 3.156(b). Therefore, the October 1996 rating decision is final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). In July 2005, the Veteran filed a request to reopen his previously denied claim of entitlement to service connection for hiatal hernia. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence obtained since the October 1996 rating decision includes an April 2006 private opinion noting a nexus between the Veteran's in-service injury and his hiatal hernia. This evidence is new in that it had not previously been submitted. It is also material insofar as it relates to a previously unestablished fact (relationship to service) necessary to substantiate the claim. The additional evidence being both new and material, the claim for entitlement to service connection for hiatal hernia is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). Service Connection Claims Because the Board grants the petition to reopen the hiatal hernia issue above, it will not address the merits of whether service connection is warranted for this issue. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). The evidence of record, including a December 2006 VA endoscopic report, reflects a diagnosis of hiatal hernia. Therefore, the first Cuevas element has been satisfied. Regarding the first Cuevas element, the Veteran alleges that while serving in the Republic of Vietnam, he suffered an abdominal injury caused by debris from an exploding booby trap. The Veteran's DD Form 214 reflects that he was awarded the Combat Action Ribbon, indicating that the Veteran engaged in combat with the enemy. Although there is no official record of such incurrence, the Board accepts the Veteran's statements of in-service incurrence as consistent with the circumstances, conditions, or hardships of his service. See 38 U.S.C.A. § 1154(b) (West 2002); see also Unit Histories indicating the presence of booby traps in the location and during the time that the Veteran served in Vietnam. Therefore, the second Cuevas element has been met. What remains to be established is whether the Veteran's hiatal hernia was caused by this in-service injury. The only medical evidence of record regarding this question is an April 2006 opinion by a private physician. In his opinion, the physician noted that a blunt injury to the upper abdomen (such as the Veteran's) "can definitely cause a hiatal hernia by increasing intra-abdominal pressures and occasionally causing herniation of the stomach through the diaphragm." Thus, any reasonable doubt is resolved in the Veteran's favor, and the Board finds that this opinion weighs in favor of the claim. The third Cuevas element has been met. Because each of the three Cuevas elements has been met, service connection for hiatal hernia is warranted. Regarding the remaining claims for service connection for GERD and Barrett's esophagus, the Veteran has asserted a secondary service connection theory of entitlement (as due to or caused by his hiatal hernia). For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012). The evidence of record, including the December 2006 endoscopic report and pre-procedure assessment, reflect diagnoses of GERD and Barrett's esophagus. The Veteran is also now service-connected for hiatal hernia. Therefore, the first and second Wallin elements have clearly been satisfied. What remains to be established is whether the Veteran's GERD and/or Barrett's esophagus was caused or aggravated by his service-connected hiatal hernia. The only medical evidence of record regarding this question is an April 2006 opinion by a private physician. In his opinion, the physician noted that "it is as likely as not that [the Veteran's] reflux symptomatology worsened after the trauma sustained at the time of the explosion [which caused the hiatal hernia]. This obviously eventually over a long period of time can progress and cause Barrett's." He also noted that the Veteran was "diagnosed [with] severe reflux esophagitis with Barrett's esophagus. Hiatal hernia and subsequent reflux esophagitis are closely related." With resolution of any doubt in favor of the Veteran, the Board finds that these statements are sufficient to satisfy the third Wallin element, and ultimately these secondary service connection issues on appeal. Thus, the Board finds that secondary service connection for GERD and Barrett's esophagus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for hiatal hernia, and the petition to reopen is granted. Entitlement to service connection for hiatal hernia is granted. Entitlement to service connection for GERD secondary to hiatal hernia is granted. Entitlement to service connection for Barrett's esophagus secondary to hiatal hernia is granted. ____________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs