Citation Nr: 18147510 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-25 864 DATE: November 5, 2018 ORDER The previously denied claim of entitlement to service connection for a gastrointestinal disorder is reopened. REMANDED Service connection for a gastrointestinal disorder is remanded. FINDING OF FACT Evidence that became available following an unappealed December 2001 rating decision denying service connection for epigastric pain is not cumulative or redundant of the evidence previously available, relates to a necessary but previously unestablished fact, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The December 2001 rating decision is final, but service connection for a gastrointestinal disorder is reopened based on new and material evidence. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.160, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1963 to March 1965. He also served in the Army National Guard from December 1976 to April 1996. This matter is on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA). Service connection for gastroesophageal reflux disease (GERD) was denied in it. At the outset, the Board of Veterans’ Appeals (Board) finds that GERD encompasses symptoms similar to epigastric pain and a chronic stomach disorder. Service connection claims for such were denied in June 1999 (notice was not sent until July 1999), June 2000, September 2001, and December 2001. It follows that the Veteran’s current claim therefore is not a new claim, but rather a request to reopen a previously denied claim. Clemons v. Shinseki, 23 Vet App. 1 (2009); Velez v. Shinseki, 23 App. 199 (2009). Preliminary Matters VA has duties to notify and to assist a claimant seeking VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Discussion of them is unnecessary, however, as the Veteran’s previously denied claim for service connection for a gastrointestinal disorder is reopened. As this determination is favorable to him, any notification or assistance errors made ultimately were harmless. Reopening a Previously Denied Claim In general, rating decisions that are not appealed are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1103. A claim denied in a final rating decision shall be reopened for readjudication if there is new and material evidence. 38 U.S.C. § 5108. New evidence is evidence not previously available. Material evidence is evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether a reasonable possibility of substantiating the claim is raised is low, with consideration to be given to triggering VA’s duty to assist. Shade v. Shinseki, 24 Vet. App. 110 (2010). The December 2001 rating decision, which is the last previous denial of service connection identified above, noted that the Veteran had a stomach condition. VA and private treatment records as well as an August 2001 VA medical examination indeed provided diagnoses in this regard. However, it further noted that there was no indication this condition was incurred in or aggravated by his service. An October 2001 statement from his wife B.G.. recounting that he had stomach problems since 1968 when they met was deemed insufficient in this regard—as was an October 2001 statement from his mother K.G.., who recounted that his stomach problems started during service. While service treatment records were not specifically discussed, earlier denials of service connection emphasized that they document the Veteran’s treatment for epigastric pain only once in October 1963. Chronicity thus was not established. The Veteran did not file a timely appeal of the December 2001 rating decision. He also did not submit new and material evidence within the period for filing an appeal, so the rating decision was not reconsidered. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). As such, it is final. Evidence that became available only after it includes more VA and private treatment records, an April 2012 VA medical examination and opinion, and a January 2014 private medical opinion. These opinions are material as well as new because they relate to the necessary but previously unestablished fact of a nexus to service. There were no opinions before, and thus there is no cumulation or redundancy. Although the VA opinion is against service connection, the private opinion is for this benefit. There thus is a reasonable possibility of substantiating the claim, particularly when accounting for any additional evidence VA has a duty to assist in procuring (see remand section). In conclusion, the Board finds that reopening is warranted. REASONS FOR REMAND Before adjudicating service connection for a gastrointestinal disorder, additional development is needed. Available private treatment records from Dr. S.A. are dated only through March 2012, while available VA treatment records are dated only through March 2018. These latter records reference the Veteran’s receipt of care from private Dr. R.S., a gastroenterologist, from which no treatment records are available. Efforts must be made to obtain more from each of these sources. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Next, July 2017 VA treatment records indicate that testing suggests a new diagnosis of gastroparesis may be warranted. The nature of the Veteran’s disability is currently unknown, in other words. A new VA medical examination therefore must be scheduled. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This examination should be complete with an opinion because whether the Veteran’s disability, however diagnosed, has a nexus to service also currently is unknown. Id. The April 2012 VA medical opinion finding no nexus was based on there being no documentation of chronicity. However, it is continuity of symptoms, and not continuity of treatment, that is important. Savage v. Gober, 10 Vet. App. 488 (1997). No discussion was made of the statements of the Veteran, B.G., and K.G. regarding continuity of his symptoms. The January 2014 private medical opinion, which is from Dr. S.A., found a nexus to service. Yet the basis for this finding was not provided. The opinion accordingly is of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Regional Office finally must conduct an initial review of additional pertinent evidence not submitted by the Veteran. 38 U.S.C. § 7105(e)(1); 38 C.F.R. §§ 19.31(a-b), 19.37(a-b), 20.1304(c). This matter is REMANDED for the following action: 1. Follow established procedure to obtain any relevant treatment records concerning the Veteran: (a) from VA dated from March 2018 to present, (b) from private Dr. S.A. dated from March 2012 to present, and (c) from private gastroenterologist Dr. R.S. 2. After completing paragraph 1, schedule the Veteran for a VA medical examination regarding his gastrointestinal disorder. The examiner is to review the claims file as well as interview and examine the Veteran. For each diagnosis made, the examiner should opine as to whether it at least as likely as not (a 50 percent or greater probability) began during, or otherwise is related to, his service. A detailed explanation is required for each answer. In this regard, the examiner is advised that continuity of symptoms is important, not continuity of treatment. The examiner also is advised that discussion of medical principles as they relate to the medical and lay (non-medical) evidence and of medical literature would be of assistance to the Board. 3. Then, readjudicate this matter. If the decision made is not fully favorable to the Veteran, issue a supplemental statement of the case. Allow him and his representative time to respond before returning this matter to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records or to report for a scheduled VA medical examination, for example, may impact the decision made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional argument or evidence, whether himself or through an appointed representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). All remands by the Board, including this matter, or the United States Court of Appeals for Veterans Claims finally are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel