Citation Nr: 1804076 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-15 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a gastrointestinal disorder and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 1958 to November 1958, August 1959 to September 1959, and in July 1960, and active duty from October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran and his daughter testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 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 whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a gastrointestinal disorder is addressed in the decision below. The reopened claim is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in September 2003, the Board denied service connection for a gastrointestinal disorder. 2. Evidence added to the record since the final September 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a gastrointestinal disorder. CONCLUSIONS OF LAW 1. The September 2003 Board decision that denied service connection for a gastrointestinal disorder is final. 38 U.S.C.A. § 7104(b) (West 2002) [38 U.S.C. § 7104(b) (2012)]; 38 C.F.R. § 20.1100 (2003) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a gastrointestinal disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the AOJ originally denied service connection for a gastrointestinal disorder in a January 2001 rating decision. Thereafter, the Veteran appealed such denial to the Board and, in a September 2003 decision, the Board upheld the AOJ's denial of service connection for a gastrointestinal disorder. At such time, the Board considered the Veteran's statements, service treatment records (STRs), post-service treatment records, and a July 2002 VA examination. In this regard, the Board noted that, while the Veteran's September 1961 in-service examination noted that he had a duodenal ulcer, such finding was later determined to be incorrect and, thus, the Veteran was presumed to have been of sound condition upon entrance into service. Additionally, the Board noted that the competent evidence of record did not rebut the presumption of soundness and that the Veteran's diagnosed gastrointestinal disorder was not related to his military service. Consequently, the Board found that there was no nexus between the Veteran's diagnosed gastrointestinal disorder and his military service. Under the legal authority then in effect, the Board's September 2003 decision is final. 38 U.S.C.A. § 7104(b) (West 2002) [38 U.S.C. § 7104(b) (2012)]; 38 C.F.R. § 20.1100 (2003) [(2017)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(c). Specifically, such provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). In the instant case, the Veteran's service personnel records were received subsequent to the issuance of the September 2003 Board decision; however, as such are irrelevant to his claim for service connection for a gastrointestinal disorder, 38 C.F.R. § 3.156(c) is inapplicable to the instant claim and the September 2003 Board decision is final. In September 2013, the Veteran submitted a request to reopen his claim for service connection for a gastrointestinal disorder. In connection with such application, he submitted additional statements and medical records. The Veteran also submitted a May 2014 statement from his treating physician, Dr. D.D., who noted that the Veteran had been a patient of his for many years and had a persistent history of stomach problems, including gastritis and chronic reflux esophagitis. A statement from F.P. was also received in May 2014. In such letter, F.P. stated that he had served with the Veteran in 1960 and 1961, and that the Veteran often felt weak and looked very thin during the remainder of his service. F.P. also stated that he kept in touch with the Veteran for 50 years and knew to this day that his stomach problems were due to ulcers. However, the Board notes that the evidence of record does not indicate that F.P. is competent to relate the Veteran's stomach problems to his previous ulcers. Nonetheless, as the September 2003 Board decision denied the claim on the basis that there was no nexus between the Veteran's diagnosed gastrointestinal disorder and the newly received evidence indicates that such disorder may have been incurred in, or otherwise related to, his military service, the Board finds that the evidence received since the September 2003 Board decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim for service connection for a gastrointestinal disorder. See 38 C.F.R. § 3.156(a). Accordingly, new and material evidence has been received, and such claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, the claim for service connection for a gastrointestinal disorder is reopened; the appeal is granted to this extent only. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he has a pre-existing gastrointestinal disorder that was aggravated by his active duty military service. Specifically, he contends that he was unable to tolerate mess hall food during such service. However, as previously mentioned, the Veteran was presumed to have been of sound condition upon entrance into service. Nonetheless, VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this regard, the Veteran's claim was previously denied because, while he had diagnoses of gastroesophageal reflux disease (GERD) and numerous tiny peptic ulcers, an April 2003 VA addendum opinion noted that such disorders were not due to his military service because x-rays did not confirm the presence of peptic or duodenal ulcer during the Veteran's military service. Furthermore, a July 2003 VA addendum opinion noted that it was not at least as likely as not that the Veteran's condition was initiated during his military service as the Veteran was diagnosed with a duodenal ulcer prior to service and was successfully treated with diet alone. However, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the nature and etiology of any gastrointestinal disorder. Specifically, as noted above, newly received evidence indicates that the Veteran may have a gastrointestinal disorder that is related to his military service. Furthermore, at the November 2017 Board hearing, the Veteran stated that he was not treated with a special diet during his in-service hospitalization, and his symptoms have continued since his military service. Thus, a VA examination is needed to determine if there is clear and unmistakable evidence that the Veteran has a current gastrointestinal disorder that pre-existed his military service and was not aggravated by service or, if it did not clearly and unmistakably pre-exist service, whether such had its onset during, or is otherwise related to, his military service. Further, on remand, the Veteran should also be given an opportunity to submit any additional treatment records and updated VA treatment records should be obtained dating since September 2015. 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. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claim. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records dating since September 2015, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any gastrointestinal disorder. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. After reviewing the record, to include the Veteran's service treatment records and his lay statements, the clinician should respond to the following: (A) Please identify all of the Veteran's currently diagnosed gastrointestinal disorders, to include GERD. (B) For each identified diagnosed gastrointestinal disorder, the clinician should indicate whether there is clear and unmistakable evidence that such disorder(s) pre-existed service. (i) If there is clear and unmistakable evidence that the disorder pre-existed service, the clinician is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service. If there was an increase in the severity of the Veteran's disorder, the clinician should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the current disorder pre-existed service, then the clinician is asked to opine whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's active duty service. If the clinician is unable to provide the requested opinion without resort to speculation, the clinician should clearly indicate that and describe what facts or information is missing that would permit a non-speculative opinion. A clear rationale for all opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions should be considered in giving any opinion. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs