Citation Nr: 1801619 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-18 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for colitis and Crohn's disease, claimed as a gastrointestinal disease, and if so, whether service connection is warranted. 2. Entitlement to service connection for a respiratory disorder to include emphysema, claimed as breathing problems, to include as the result of asbestos and lead paint exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to February 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2017 videoconference hearing. A copy of the transcript has been associated with the claims file. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issues have been characterized as indicated on the front page of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 1948 rating decision denied service connection for a gastrointestinal disease; the Veteran did not perfect an appeal. 2. Evidence submitted since the May 1948 rating decision, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the colitis and Crohn's disease claim, and therefore raises a reasonable possibility of substantiating the claim. 3. Colitis and Crohn's disease was not manifest during service and is not otherwise attributable to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The May 1948 rating decision, in which the RO denied service connection for a gastrointestinal disease, is final. 38 U.S.C. § 7104(b) (2012). 2. New and material evidence has been received since the May 1948 rating decision for gastrointestinal disease; thus, the claim of entitlement to service connection for colitis and Crohn's disease, claimed as a gastrointestinal disease is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Colitis and Crohn's disease was not incurred or aggravated in active service and are not secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material In a May 1948 rating decision, the RO denied service connection for gastrointestinal disease on the basis of no current diagnosis. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO's May 1948 rating decision is final. 38 U.S.C. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of the Veteran's October 2017 hearing testimony, as well as medical evidence. The Veteran testified that he had digestive issues the last year of his service and that the symptoms have continued since. He reported taking medication since the 1940s for diarrhea. The reason for the prior final denial was that there was no evidence establishing the Veteran's gastrointestinal disease arose on active duty or is otherwise causally related to his military service. In other words, the in-service incurrence and the nexus element were missing. This recent evidence suggests that the Veteran's gastrointestinal disease occurred during his service and that he purportedly had a gastrointestinal disease since service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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. Shade v. Shinseki, 24 Vet. App. 110 (2010) Thus, 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. There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA's duty to assist in providing the claimant with a VA examination In this case, the Veteran's hearing testimony suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the May 1948 rating decision. Therefore, the claim of entitlement to service connection for colitis and Crohn's disease, claimed as a gastrointestinal disease, is reopened. The Board also notes that the AOJ also reopened the claim and performed a de novo review in the May 2013 statement of the case. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Furthermore, review of the procedural history and development of the instant appeal persuades the Board that it can decide the merits of the Veteran's reopened claim without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310 (b). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he occasionally had diarrhea in service. His service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis of diarrhea. His April 1943 entrance examination and February 1946 separation examination revealed normal findings and there were no complaints of diarrhea. Post-service, in March 1948, the Veteran underwent a VA examination for a gastrointestinal condition. A radiographic examination of gastrointestinal tract and physical examination did not show abnormalities. The VA examiner found that the Veteran had a normal gastrointestinal tract. An April 2005 VA treatment note revealed that the Veteran was diagnosed with Crohn's disease and was being treated with mesalamine. In January 2012, the Veteran underwent a disability benefits questionnaire (DBQ) for intestinal conditions. The Veteran's claims file was reviewed. He was diagnosed with ulcerative colitis and Crohn's disease in the 1980s. The Veteran reported that he had dysentery the last year of his service. He had diarrhea that would come and go regardless of his diet. He saw a private doctor in the 1980s for diarrhea and was prescribed mesalamine, which provided relief. The Veteran continued to use mesalamine. He retired in 1987, but had to leave work early occasionally because of diarrhea, tiredness, and bloating. The Veteran reported that had diarrhea once a week and that he used to have diarrhea 5 to 6 times daily. He occasionally had nausea and felt bloated. The examiner opined that the Veteran's colitis and Crohn's disease were less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as dysentery is not a precursor for either ulcerative colitis or Crohn's disease. However, dysentery has some characteristics in common with other inflammatory gastrointestinal disorders, such as diarrhea. A February 2012 VA treatment record indicated that the Veteran was diagnosed with ulcerative colitis, which was stable on mesalamine. In an October 2012 letter, the Veteran's daughter stated that the Veteran had colitis since she was a child and that he would have diarrhea or bloody stools when he was stressed or changed his diet. He was prescribed medication to control his diarrhea when she was an adult. A January 2015 DBQ for intestinal conditions was conducted to determine if his condition was related to his service-connected posttraumatic stress disorder (PTSD). The VA examiner found that there was no medical evidence to substantiate the Veteran's diagnosis of colitis and Crohn's disease and provided a negative etiology opinion. A March 2016 deferred rating decision found that the January 2015 VA examiner's opinion was in error as VA treatment records indicated that the Veteran had been diagnosed with colitis and Crohn's disease. The Veteran was scheduled for another VA examination. The Veteran had a DBQ for intestinal conditions in March 2016. The VA examiner wrongfully relied on the January 2015 VA examiner's finding that the Veteran did not have a diagnosis of colitis or Crohn's disease. Once again, in March 2017, the RO ordered another examination as the March 2016 VA examiner relied on incorrect facts as a basis for her opinion. In March 2017, the Veteran underwent another DBQ for intestinal conditions to determine if his condition was related to his service-connected PTSD. The Veteran's claims file was reviewed. He was diagnosed with ulcerative colitis and Crohn's disease. The Veteran reported having a small amount of diarrhea every third day unless he had dairy products or berries, which would cause a larger amount of diarrhea. He stated that his diarrhea was getting better and that he no longer had blood in his stool. The Veteran reported that his private doctor believed that he would be able to stop taking continuous medication to prevent diarrhea. The VA examiner noted that the Veteran's February 1946 separation physical recorded a normal abdomen and that his March 1948 VA examination did not record diarrhea and found that there was no gastrointestinal disease found. The examiner opined that the Veteran's colitis and Crohn's disease were less likely than not (less than a 50 percent probability) due to or the result of the Veteran's service-connected condition as the weight of the medical literature is against PTSD as a cause of colitis and Crohn's disease. The examiner found that there has been no aggravation of the Veteran's colitis by PTSD, especially, since the Veteran reported that his symptoms were improving. At his October 2017 hearing, the Veteran reported that he had diarrhea toward the end of his service and that it had progressed after service. He saw a doctor for diarrhea in the 1980s and was prescribed medication. The doctor never offered an etiology opinion, but the Veteran believed that his diarrhea is related to his service since it began in service. The Veteran's daughter stated that stress and diet caused bouts of diarrhea. She recalled diarrhea bouts since she was in high school. In this case, the January 2012 and March 2017 VA examiners were aware of the Veteran's medical history, provided fully articulated opinions, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to these opinions, and the most probative value in this case, as such opinions are well reasoned, detailed, consistent with other evidence of record, and included a review of the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran's own opinion that colitis and Crohn's disease began in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Although the Veteran has reported that he had diarrhea in service and that it has continued since, the Veteran's February 1946 separation examination revealed normal findings and there were no complaints of diarrhea noted. Further, the March 1948 VA examination revealed a normal gastrointestinal tract. More importantly, there is no nexus between the currently diagnosed colitis and Crohn's disease to his reports of in-service diarrhea or to his service-connected PTSD. As the Veteran is not competent to provide such a nexus without the requisite skill, knowledge or expertise in medicine, the Board must accord greater probative weight to the January 2012 and March 2017 VA examiners. The most probative evidence establishes that colitis and Crohn's disease is not related to service or a service-connected disability. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for colitis and Crohn's disease, claimed as a gastrointestinal disease, is denied. REMAND The Board sincerely regrets the additional delay that will result from this remand, but it is necessary to have a complete record to decide the claim, so the Veteran is afforded every possible consideration. The Veteran asserts entitlement to service connection for a respiratory disorder, to include emphysema, on the basis of being exposed to asbestos and lead paint during his service. The Veteran was diagnosed with emphysema in 1959. In February 2012, VA conceded asbestos exposure based on the Veteran's military occupational specialty and period of service. In January 2012, the Veteran underwent a VA DBQ for respiratory conditions. The Veteran reported that he noticed breathing problems in 1948 and that he had shortness of breath when running or performing strenuous activities. In 1959, he had three incidents of a collapsed lung. No etiology was provided for the collapsed lung. A June 2011 chest x-ray showed chronic emphysema changes with scarring in the lungs. Pulmonary function testing was suggestive of asthma. The VA examiner opined that the Veteran's condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the pulmonary function testing results were consistent with asthma and asthma may occur without exposure to lead or asbestos despite confirming the diagnosis of emphysema as well. Pursuant to Clemons, the Board will consider the Veteran's claim to include any respiratory disorder. Accordingly, remand of this claim is required for provision of an addendum opinion to determine the etiology of the Veteran's emphysema and asthma. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran with an appropriate examiner for a medical addendum to determine the nature and etiology of any current respiratory disorder. The examiner is requested to opine as to whether it is more likely than not, less likely than not, or at least as likely as not that the Veteran's emphysema and/or asthma had its clinical onset during active service or is related to any in-service disease, event, or injury, specifically including the Veteran's in-service exposure to asbestos or lead, as well as all lay statements as to in-service and post-service symptoms. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Review the development action obtained above to ensure that the remand directive has been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs