Citation Nr: 1414018 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-04 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for pancreatitis, and if so whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which reopened the previously denied claim for service connection for pancreatitis and denied the claim on its merits. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in April 2012. A transcript of the hearing is of record. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied service connection for the Veteran's claimed pancreatitis. The Veteran did not appeal this denial and that decision became final. 2. The evidence presented since the November 2002 denial raises a reasonable possibility of substantiating the Veteran's claim for service connection for pancreatitis. 3. Resolving all doubt in favor of the Veteran, the evidence shows that currently diagnosed pancreatitis was incurred in service. CONCLUSIONS OF LAW 1. The November 2002 rating decision that denied service connection for pancreatitis is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for pancreatitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for pancreatitis have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for pancreatitis. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. New and Material Evidence A previously denied claim will be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision makers, and 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. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, 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. The Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claim for service connection for pancreatitis. The last final denial was issued by the RO in November 2002. The claim was denied because the RO found there was no relationship between the Veteran's pancreatitis and service. The November 2002 rating decision became final because no notice of disagreement or new and material evidence was received within one year of the issuance of the rating decision. Accordingly, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 7105. Since the November 2002 rating decision, new evidence has been added to the claims file, including a June 2011 letter by Dr. Dale Bachwich opining that the Veteran's current pancreatitis is related to service. As this speaks directly to an element which was not of record, a nexus between the Veteran's current diagnosis of pancreatitis and his service, it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for pancreatitis is reopened. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that his pancreatitis is related to service. At the Board hearing, the Veteran testified that he had back pain in service, he was treated for this in service with Motrin and put on light duty, but no further investigation was completed. The Veteran essentially contends that he was misdiagnosed in service and that the back pain he suffered in service was due to pancreatitis. He further contends that he was taking a large quantity of Motrin in service, which worsened his pancreatitis. STRs show documented in-service complaints of nausea and vomiting in August 1992 and cramps, diarrhea, tenderness to abdomen in September 1992. STRs also show complaints of back pain in December 1993, January 1994, October 1994, and March 1995. In December 1993, the Veteran reported having back pain for one year. The medical evidence shows that the Veteran was diagnosed with pancreatitis on July 6, 1995, 24 days after service. VA treatment records dated May 2005 to December 2005, September 2007, and May 2009 to August 2010 have consistently shown a diagnosis of pancreatitis. The Veteran's private treating physician, Dr. Bachwich, has treated the Veteran for chronic pancreatitis from July 2000 through at least June 2011, and opined that based on the appearance of the pancreas in 2000 and his understanding of the time course of chronic pancreatitis, it is "well certain" that the Veteran's chronic pancreatitis was present during his service. Although VA examiner's thought it unlikely the Veteran's pancreatitis problem first manifested by his treatment in service, given the Veteran's credible lay statements concerning his symptoms in service and the positive nexus opinion by the Veteran's private treating physician, the evidence is at least in equipoise. Resolving all doubt in the Veteran's favor, service connection is warranted for pancreatitis. Consequently, the benefit sought on appeal is granted. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). ORDER As new and material evidence has been presented, the Veteran's claim for service connection for a pancreatitis is reopened. Service connection for pancreatitis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs