Citation Nr: 1328266	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-49 937	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Whether new and material evidence has been received to 
reopen a claim of service connection for Crohn's disease.


REPRESENTATION

Veteran represented by:	Christopher J. Boudi, Attorney


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran had active military service from September 1982 
to August 1986.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a January 2007 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Chicago, Illinois, which denied reopening of a claim for 
service connection for Crohn's disease on the grounds of no 
new and material evidence.  

Although the Veteran initially sought the opportunity to 
testify at a Board hearing before a Veterans Law Judge, a 
July 2013 statement signed by the Veteran's attorney 
reflects that he withdrew this request.  

The issue of service connection for Crohn's disease is 
addressed in the REMAND portion of the decision below and is 
REMANDED to the Department of Veterans Affairs Regional 
Office.


FINDINGS OF FACT

1.  In a rating decision in January 1995, the RO denied 
service connection for Crohn's disease; after the Veteran 
was notified of the adverse decision and of his right to 
appeal, he did not appeal, and no new evidence pertinent to 
the basis of the denial of that claim was received by VA 
within one year from the date that the RO mailed notice of 
the determination to the Veteran.  

2.  Evidence that is not cumulative or redundant of that in 
the record in January 1995, and that relates to an 
unestablished fact necessary to substantiate the claim for 
service connection for Crohn's disease, has been received.


CONCLUSIONS OF LAW

1.  The January 1995 rating decision denying service 
connection for Crohn's disease is final.  38 U.S.C.A. § 
7105(a) (West 2002); 38 C.F.R. §3.104 (2012).

2.  Evidence added to the record since the January 1995 
rating decision denying service connection for Crohn's 
disease is new and material.  38 U.S.C.A. § 5108 (West 
2002); 38 C.F.R. § 3.156 (2012).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board reopens the Veteran's back 
disability claim and remands it for further development.  As 
such, no discussion of VA's duty to notify and assist is 
necessary.  

In a rating decision in January 1995 the RO denied the 
Veteran's initial service connection claim for Crohn's 
disease (claimed as service connection for "inflammation of 
stomach with diarrhia") on the grounds that service 
treatment records were negative for diagnosis of or 
treatment for Crohn's disease.  After appropriate notice of 
this decision and of his appeal rights, the Veteran did not 
appeal, and no evidence pertaining to the issue was either 
physically or constructively received by VA within one year 
of the January 1995 rating decision.  The January 1995 
decision is therefore final.  38 U.S.C.A. § 7105; 38 C.F.R. 
§§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. 
Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011).  

In June 2006 the Veteran filed a claim to reopen, which was 
denied by the RO in a January 2007 rating decision on the 
grounds of no new and material evidence.  The Veteran has 
appealed.

The January 1995 rating decision is the last final decision 
on the merits.  The claim decided therein is not subject to 
revision on the same factual basis.  38 U.S.C.A. § 7104.  In 
order to reopen the claim, new and material evidence is 
needed.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  

New evidence means existing evidence not previously 
submitted to agency decision makers.  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).  In determining whether 
evidence is new and material, the credibility of the 
evidence is generally presumed.  Justus v. Principi, 3 Vet. 
App. 510, 512-513 (1992).  

At the time of the January 1995 rating decision the evidence 
consisted of service treatment records, including records of 
treatment from October 1983, to November 1984, for rectal 
bleeding, diarrhea, vomiting, and chills; variously 
diagnosed as viral syndrome and gastroenteritis.  

The record also included the report of a VA examination done 
in October 1994, in which the examiner noted that the 
Veteran had been diagnosed two years earlier.  The examiner 
also commented that the disease had first presented as 
perirectal fissures.  Diagnosis was "[history] of perirectal 
fissures since age 20 (probably related to Crohn's 
disease.").

Evidence added to the record since the January 1995 rating 
decision includes VA treatment records, private medical 
records, Social Security disability records, and the Veteran 
and his attorney's contention that the Veteran's symptoms 
during service were those of Crohn's disease.  

This evidence is new since it was not of record in 1995, and 
material as it, by itself and particularly when considered 
with the October 1994 examiner's remarks, relates to an 
unestablished fact necessary to substantiate the claim for 
service connection for a back disorder; namely, an 
indication that the Veteran's Crohn's disease, first 
diagnosed after service, actually began during service; and 
it must be presumed credible for the purpose of reopening 
the claim.  Justus, 3 Vet. App. at 512-13.  New and material 
evidence having been presented, the claim is reopened.  38 
C.F.R. § 3.156(a); see also Shade.  




ORDER

New and material evidence having been submitted, the 
Veteran's claim for service connection for Crohn's disease 
is reopened and, to that extent only, the appeal is granted.


REMAND

Having reopened the claim for service connection for Crohn's 
disease based on new and material evidence, the Board has 
jurisdiction to review the underlying service connection 
claim, de novo, based on the whole record.  For the reasons 
that follow the Board finds that additional development is 
warranted.

The evidence confirms that the Veteran was treated for 
uncontrollable "urgency of defacation," vomiting, rectal 
bleeding, and chills during service, which he now contends 
is related to his post-service diagnosis of Crohn's disease.  
Remand for a VA examination is warranted.  See McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  On remand any extant VA 
treatment records should be associated with the claims file.  
Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file, either 
physically or electronically, all of the 
Veteran's VA medical records pertaining to 
the Veteran dating from April 2013.  

Any other pertinent records identified by 
the Veteran during the course of the 
remand should also be obtained and 
associated with the claims file, following 
the receipt of any necessary 
authorizations from the Veteran.  

If no records are found and it is determined 
that further attempts to obtain the records 
would be futile, notify the Veteran and his 
attorney of the negative results in 
accordance with 38 C.F.R. § 3.159(e), and 
allow the Veteran an opportunity to submit 
the sought-after records.

2.  Notify the Veteran that he may submit 
lay statements from himself, as well as from 
individuals such as friends and/or family 
members, who have first-hand knowledge of 
the onset and/or recurrence of any 
gastrointestinal symptoms, to specifically 
include treatment for or a diagnosis of 
Crohn's disease, during and/or since 
service.  He should be provided an 
appropriate amount of time to submit this 
lay evidence.

3.  Schedule the Veteran for an 
appropriate VA examination regarding his 
claim of service connection for Crohn's 
disease.  The claims file must be made 
available and reviewed by the examiner.  
All indicated tests should be done, and 
all findings must be reported in detail.  

The examiner must identify all 
gastrointestinal disabilities found to be 
present.  Thereafter, the examiner must 
opine as to whether it is at least as 
likely as not that any gastrointestinal 
found to be present is related to or had 
its onset in service.

In providing this impression, the examiner 
must specifically offer an opinion as to 
whether it is at least as likely as not 
that the Veteran's Crohn's disease is 
related to or had its onset in service.  

In formulating this opinion, the examiner 
must address the Veteran's competent lay 
evidence as to the onset of his 
gastrointestinal symptoms during and since 
service.  The examiner must also 
specifically acknowledge and consider the 
1994 VA examiner's remarks that the 
Veteran's Crohn's disease, diagnosed at the 
Veteran's age of 28, first presented as 
perirectal fissures at the Veteran's age of 
20.

If the VA examiner determines that he/she 
is unable to provide the requested medical 
opinion(s) without resorting to 
speculation, this should be indicated in 
the report, along with a statement as to 
whether there is additional evidence that 
could enable an opinion to be provided, or 
whether the inability to provide the 
opinion is based on the limits of medical 
knowledge. 

A complete rationale for all opinions must 
be set forth in the examination report.

4.  Then, readjudicate the appeal.  If the 
benefit sought remains denied, issue a 
Supplemental Statement of the Case to the 
Veteran and his attorney, and then return 
the appeal to the Board for appellate 
review, after the Veteran has had an 
adequate opportunity to respond.

The Veteran has the right to submit additional evidence and 
argument on the matter 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).


______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs