Citation Nr: 18145912 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-20 566A DATE: October 30, 2018 ORDER New and material evidence sufficient to reopen the claim of service connection for a gastric ulcer disability has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a gastric ulcer disability is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In July 2009, the RO issued a rating decision denying entitlement to service connection for a stomach condition and TDIU. The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final. 2. Evidence received since the July 2009 rating decision regarding the Veteran’s claimed service connection for the stomach condition, since recharacterized as a gastric ulcer disability, is not cumulative or redundant of the evidence previously of record, and assuming its credibility raises a reasonable possibility of substantiating the Veteran’s claim of service connection for his claimed gastric ulcer disability. CONCLUSIONS OF LAW 1. The July 2009 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. New and material evidence sufficient to reopen the claim of service connection for a gastric ulcer disability has been received since July 2009, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1955 to April 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). The Veteran’s attorney withdrew as representative in May 2018. As the Veteran is now unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As part of his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In August 2018 correspondence the Veteran was properly notified of the date, time and location of the scheduled videoconference hearing set for October 16, 2018, but failed to report for the hearing without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Board notes the statement of nonavailability in the Veteran’s file that his service records, to include service medical records, are considered lost as a result of the July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant’s service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The heightened duty to assist may require VA to request alternate source records from the NPRC. VA must also inform a claimant that his or her records have been destroyed and must inform him or her of the alternate information, such as lay statements, that he or she could submit to support contentions of what occurred during service. To this end, VA has notified the Veteran and also previously requested records from private medical sources and from Social Security. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist beyond the NPRC fire issue noted above; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Petition to Reopen In April 2008, VA received the Veteran’s original claim for entitlement to service connection for a stomach condition, later recharacterized as a gastric ulcer disability. The claim was originally denied in July 2009 and the Veteran was notified on July 9, 2009 because the evidence did not show a nexus to service. The RO reviewed the Veteran’s available records and his statements regarding the claimed gastric ulcer disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). The Veteran sought to reopen this claim in August 2011. The RO reviewed the Veteran’s available VA treatment records, private treatment records, and his statements regarding his gastric ulcer disability during and after service. The RO denied reopening of the claim and also denied the claim on its merits in a June 2012 rating decision. The Veteran filed a notice of disagreement (NOD) in July 2012. VA issued a Statement of the Case (SOC) in April 2014. The Veteran perfected an appeal to the Board in June 2014. The Board is required to address new and material claims in the first instance, however the outcome of the rating decision by a regional office. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in July 1989 consisted of VA treatment records and lay statements from the Veteran. The evidence at that time did not establish a nexus back to an in-service incident, injury, or disease. Since the July 1989 rating decision, the Veteran’s file has additional VA medical records and additional lay statements from the Veteran that have been attached to the claims file. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a gastric ulcer disability. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for a gastric ulcer disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). To that extent only, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a gastric ulcer disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is reopening the claim of entitlement to service connection for a gastric ulcer disability in this decision, but VA has never provided the Veteran with a compensation and pension examination for his claimed disability. Therefore, a remand is required to obtain the requisite VA examination and opinion for service connection for the claimed disability. As noted previously, the Veteran’s service treatment records and other personnel records are considered lost in the 1973 National Personnel Records Center fire. An estimated 80 percent of records of Army personnel discharged between November 1, 1912, and January 1, 1960, and 75 percent of records of Air Force Personnel (with names alphabetically after Hubbard) discharged between September 25, 1947, and January 1, 1964, were destroyed in this fire. This description includes the Veteran’s records and a formal finding of nonavailability has already been placed in the claims file. When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant’s service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The heightened duty to assist may require VA to request alternate source records from the NPRC. VA must also inform a claimant that his or her records have been destroyed and must inform him or her of the alternate information, such as lay statements, that he or she could submit to support contentions of what occurred during service. To that end, the Veteran has supplied lay statements as to the occurrence of his gastric ulcer disability, to include during his active service. Under such circumstances, there is also a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Examiners should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 2. Entitlement to a TDIU due to service connected disabilities is remanded. Because the outcome of the remand could materially affect the Veteran’s ability to meet such schedular criteria, the TDIU claim is inextricably intertwined with the remanded gastric ulcer claim and therefore must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matter is REMANDED for the following action: 1. Contact the Veteran and request that the Veteran submit or authorize for release all updated private treatment records associated with his claimed disabilities. All actions to obtain the released records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. Obtain any outstanding VA treatment records. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 2. After the foregoing is completed, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran’s claimed gastric ulcer disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner(s) should answer the following questions: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed gastric ulcer disability had its onset in service or are otherwise related to service. The Veteran’s lay claims should be given appropriate weight, especially his reports of treatment during his active duty service from 1955 to 1957 and treatment post-service. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service and after. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal as noted above, including TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant 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). MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel