Citation Nr: 1601998 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 11-33 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a gastrointestinal disorder, to include a duodenal ulcer. 2. Entitlement to service connection for a gastrointestinal disorder, to include a duodenal ulcer. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to service connection for a right first toe and foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from March 1974 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and December 2013 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In November 2015, the Veteran testified at a personal hearing at the RO over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. As the Veteran has been diagnosed with various gastrointestinal disorders over the course of the period on appeal, the Board has re-characterized the underlying issue as service connection for a gastrointestinal disorder, to include a duodenal ulcer, to ensure that adequate development and consideration is given, regardless of the precise diagnosis. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v Shinseki, 23 Vet. App 15 (2009). The reopened claim of entitlement to service connection for a gastrointestinal disorder, to include duodenal ulcer, and the claim of service connection for irritable bowel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 1997 Board decision denied service connection for a duodenal ulcer; a September 2003 RO decision determined that the Veteran had not submitted new and material evidence to reopen the previously denied claim; and the Veteran did not perfect an appeal of the September 2003 rating decision or submit new and material evidence within one year of its issuance. 2. Evidence received more than one year since the September 2003 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a gastrointestinal disorder, to include a duodenal ulcer. 3. Resolving all reasonable doubt in the Veteran's favor, a right first toe and foot disability is etiologically related to her active service. CONCLUSIONS OF LAW 1. The RO's September 2003 decision that determined the Veteran had not submitted new and material evidence to reopen the previously denied claim of service connection for a duodenal ulcer is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2015). 2. New and material evidence having been received, the claim of entitlement to service connection for a gastrointestinal disorder, to include a duodenal ulcer, is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for the establishment of service connection for a right first toe and foot disability are met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board reopens the claim of service connection for a gastrointestinal disorder, to include a duodenal ulcer, and grants the claim of service connection for a right first toe and foot disability. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in active service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as peptic ulcer disease and arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gastrointestinal Disorder To Include Duodenal Ulcer Initially, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen the claim of service connection for a gastrointestinal disorder, to include a duodenal ulcer. Service connection for a duodenal ulcer was previously denied by the Board in October 1997, as there was no evidence of record that the Veteran had a current disability manifested by a duodenal ulcer. Decisions of the Board are final unless appealed to the United States Court of Appeals for Veterans Claims (Court), and the Veteran did not appeal the Board decision. In June 2003, the Veteran requested that her claim be reopened. In September 2003, the RO confirmed and continued the prior denial as the Veteran had not submitted new and material evidence sufficient to reopen the previously denied claim. In effect, there was still no evidence of a current disability manifested by a duodenal ulcer. The Veteran did not submit a notice of disagreement within one year of the September 2003 decision, and no relevant evidence was received within the appeal period after the decision. As such, the decision became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); cf. 38 C.F.R. § §§ 3.104(a), 3.156(b), 3.160(d), 20.302 (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). If new and material evidence is presented or secured with respect to a claim that has been disallowed VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the September 2003 rating decision, the evidence of record included service treatment records which had shown a September 1986 upper gastrointestinal series that revealed a duodenal bulb ulcer disease and a December 1986 endoscopy of the stomach that revealed a pyloric channel ulcer and duodenal erosion. In March 1987, she was treated for ongoing epigastric pain and assessed with a duodenal ulcer with recurrent epigastric pain. In July 1991, she was treated for reported epigastric pain, but the lack of objective findings at that time led to an assessment of "no peptic ulcer disease." A report from a visit to a nutrition clinical at the time of the August 1993 separation examination indicated that she was complaining about gastric reflux. She was advised to eat four to six meals a day and avoid spicy foods. The diagnosis by the dietitian was peptic ulcer disease, but it was not indicated that she was taking any medication for this condition. In the associated report of medical history, the Veteran indicated that she was taking Tagamet. A May 1994 VA examination report had shown that the Veteran had a duodenal ulcer in 1985 and still had occasional indigestion. She stated that she was not taking any medication for this condition. Upon examination, there was mild epigastric tenderness but no masses. It was indicated that she failed to report for a scheduled upper gastrointestinal series. The diagnoses included "history of duodenal ulcer." It is noted that there were no clinical findings reported that actually confirmed the presence of any ulcer. Dyspepsia was diagnosed at a January 1995 visit to a private physician, but the findings from this examination were not indicative of an ulcer and an ulcer was not included in the diagnoses at that time. At a November 1995 hearing, the Veteran testified that she was taking Tagamet and was on a restrictive diet. New evidence added to the claims file more than one year after the September 2003 decision is material to the Veteran's claim. Specifically, during the November 2015 Board hearing, the Veteran testified that she began having stomach issues in service around September 1986. She described experienced acid reflux and burning, and being continuously treated for related symptoms. She would take both prescription and over-the-counter medication for relief. She added that she has been treated for related symptoms associated with a duodenal ulcer ever since service. The Veteran has also submitted additional medical records in support of her claim. In September 2009, a VA Radiographic Report dated in May 1994 was added to the record showing that an upper gastrointestinal series revealed an impression of marked deformity and narrowing of the duodenal bulb as a result of scarring from previous or chronic duodenal ulcer disease. In May 2009, a private medical record from H. Singh, M.D., dated in January 2003, was submitted showing, in pertinent part, that the Veteran had h. pylori gastritis, treated with medication. VA outpatient treatment records dated from April 2000 to October 2013 show that the Veteran occasionally reported a history of peptic ulcer disease. She was intermittently assessed with gastroesophageal reflux and diverticulosis. A private Esophagogastroduodenoscopy (EGD) Procedure Report from the Tallahassee Endoscopy Center dated in August 2008 shows that the Veteran was given an impression of (1) lumen appeared to be narrowed in the distal esophagus rule out extrinsic compression versus early achalasia; (2) the gastroesophageal junction appeared normal; (3) the stomach appeared normal; (4) the pylorus appeared normal; and (5) duodenal diverticulum. A VA examination report dated in September 2009 shows that the Veteran was noted to have a duodenal ulcer that reportedly had its onset in the 1980's, and that had become progressively worse. A history of irritable bowel syndrome and gastroesophageal reflux disease were also indicated. The diagnosis, in pertinent part, was duodenal ulcer in service, resolved with no residual pyloric channel ulcer in service, resolved with no residual. The examiner explained that the Veteran did have duodenal ulcer and pyloric ulcer in service, however, on most recent EGD there was no ulceration seen in either area - stomach and duodenal mucosa were normal. The examiner concluded that no opinion is indicated for the claimed duodenal ulcer. In June 2014, VA outpatient treatment records dated in April 2000 were added to the record showing a diagnosis of gastroesophageal reflux with a history of peptic ulcer disease. Private outpatient treatment records from P. Reynolds, D.P.M., M.S., dated from May 2009 to February 2010 show that the Veteran was said to have a history of stomach ulcers. Private medical record from Digestive Disease Clinic dated from October 2010 to November 2011 show intermitted diagnoses of chronic esophageal reflux and irritable bowel syndrome. Private medical records from Dr. Singh, dated from July to September 2015, showing prominent gastrocolic reflex and irritable bowel syndrome. Lay statements submitted from various friends and family members indicate that the Veteran was noted to have demonstrated stomach symptoms and a frequent need to use the bathroom. As the foregoing evidence was not of record at the time of the September 2003 RO decision, it is new. Moreover, when presumed credible, the new evidence, while not establishing a current diagnosis of a duodenal ulcer, does establishes ongoing and current gastrointestinal symptomatology; thus, it is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening the claim for service connection. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Right First Toe and Foot Disability With regard to the issue of service connection for a right first toe and foot disability, the Board finds that the medical evidence of record is at the very least in equipoise, and therefore, service connection is warranted. During the November 2015 Board hearing, the Veteran described injuring her right foot while getting off of a top bunk, wherein she slipped and her hit a wall locker, injuring the right big toe. She added that she was treated at sick call where it was determined she had fractured the toe and was put in a cast. She added that she had issues with rubbing against the right big toe from wearing her military boots. She indicated that she continued to experience symptoms associated thereto ever since service such that she ultimately underwent surgery in October 2015. A review of the Veteran's service treatment records reveals that in March 1976, the Veteran reported a painful fourth toe on the right foot after kicking a wall locker one week earlier. There was pain and swelling with walking, and it hurt to wear a boot. The assessment was rule out fracture. A physical profile record dated in March 1976 shows that the Veteran was placed on restricted duty because of a fractured foot. A service treatment record dated in November 1984 shows that the Veteran reported a painful first toe of the right foot. She described a history of a fracture to the same area three years earlier. The provisional diagnosis was possible bunion or malunion of fracture. The assessment was fibular sesamoiditis - no fracture. Following service, a VA examination report dated in December 2013 shows that the Veteran was diagnosed with right hallux valgus with degenerative changes at first metatarsophalangeal joint. The examiner opined that the current right big toe condition was less likely as not incurred in or caused by active service. The examiner explained that the service treatment records contained one entry about a painful toe in 1984 with a history of fracture three years earlier. The examiner added that the service treatment records did not reveal a right first big toe fracture, but rather of a fracture of another digit. The examiner noted that diagnosis of pain in 1984 was acute sesamoiditis which was inflammation of the sesamoid bones under the metatarsophalangeal joint area which had apparently resolved as the separation examination report was silent for mention of the claimed condition. The current claimed condition was documented in 2005 as being present for years and worse in high heeled shoes. The cause of the hallux valgus was said to be unknown, but generally accepted by the medical community as related to wearing high heeled/ill-fitting shoes [military boots not generally regarded as a cause of hallux valgus] with inherited [genetic] factors involved. The examiner concluded that there was no objective evidence that the current claimed condition is due to active military service. VA outpatient treatment records dated from May 2011 to April 2013 show intermittent treatment for right big toe and foot symptoms for which the Veteran had a bunionectomy. The Veteran was being followed during this period by K. J. Flesher, D.P.M. A medical record from VA podiatrist Dr. Flesher, dated in October 2015, shows that following a review of the Veteran's service treatment records, it was concluded that the Veteran's foot injury and right hallux injury were caused by, a result of, or aggravated by military training. Dr. Flesher explained that training caused injury to her foot and hallux, and that she had been seen by medical while on active duty. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, the Board finds that, at the very least, a state of relative equipoise has been reached as to the etiology of the asserted right big toe and foot disability. As such, service connection for a right first toe and foot disability is granted is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for a duodenal ulcer is reopened, and to this extent only the appeal is granted. Service connection for a right first toe and foot disability is granted. REMAND Regarding the merits determination for a gastrointestinal disorder, to include duodenal ulcer, the Board finds that the Veteran's service treatment records contain evidence of various gastrointestinal symptoms during active service. The post-service treatment records also contain ongoing intermittent records of treatment for variously diagnosed gastrointestinal symptoms. While the a current diagnosis of a duodenal ulcer has not been established, the Board finds that an opinion must be rendered as to whether the Veteran's currently diagnosed gastrointestinal disorder(s) are etiologically related to those treated during service. Additionally, the Board finds that an opinion should also be rendered as to whether the asserted and currently diagnosed irritable bowel syndrome, is etiologically related to active service, or to a service-connected disability (if it is established that a gastrointestinal disability is related to active service in light of the inquiry outlined above). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); McLain v. Nicholson, 21 Vet. App. 319 (2007); Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b) (2015). Finally, as this matter is being remanded for the reasons set forth above, any additional VA and private treatment records of the Veteran for her asserted gastrointestinal disability, to include duodenal ulcer and irritable bowel syndrome, should also be obtained on remand. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding records of private treatment of the Veteran's gastrointestinal disability, to include any updated records from the Digestive Disease Clinic (Dr. Singh). 3. Then schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of her asserted gastrointestinal disability, to include duodenal ulcer and irritable bowel syndrome. The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. The examiner should answer all of the following questions as definitively as possible: (a) The examiner should identify any current gastrointestinal disability, and specifically discuss whether a duodenal ulcer or residuals of a duodenal ulcer are currently present. (b) For any such gastrointestinal disability other than irritable bowel syndrome diagnosed, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such had its onset in service, had its onset in the year immediately following any period of service (in the case of any diagnosed gastric or duodenal ulcer), or is otherwise the result of service, to include documented treatment of gastrointestinal symptoms therein? (c) Is it at least as likely as not that irritable bowel syndrome, which has been diagnosed during the appeal period, had its onset in service or is otherwise the result of service, to include documented treatment of gastrointestinal symptoms therein? (d) If service connection for a gastrointestinal disability other than irritable bowel syndrome is warranted based on question (b) above, is it at least as likely as not that the Veteran's diagnosed irritable bowel syndrome was caused (in whole or in part) by that service-connected disability? (e) If service connection for a gastrointestinal disability other than irritable bowel syndrome is warranted based on question (b) above, is it at least as likely as not that the Veteran's diagnosed irritable bowel syndrome has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by that service-connected disability? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular gastrointestinal disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs