Citation Nr: 18153941 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-21 544 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim for service connection for ulcers is reopened; the appeal is granted to that extent. Entitlement to service connection for a stomach condition is remanded. FINDINGS OF FACT 1. Service connection for ulcers was originally denied in an unappealed February 1974 rating decision. 2. A September 2007 rating decision declined to reopen the claim on the basis that new and material evidence was not received; new and material evidence was not received within one year of this decision and the Veteran did not perfect his appeal with a VA Form 9. 3. Evidence added to the record since the last final denial is new and relates to a previously unestablished element- causal nexus. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for ulcers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1943 to September 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In his substantive appeal (via June 2015 VA Form 9), the Veteran requested a Board videoconference hearing. In September 2018, prior to the date of the hearing, he withdrew his hearing request. 38 C.F.R. § 20.702(e). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Agency of Original Jurisdiction (AOJ) originally denied the Veteran’s service connection claim for ulcers in a February 1974 rating decision. Within one year of that rating decision, the Veteran submitted additional statements from a buddy who indicated the Veteran had ulcers while in service. In October 1974, the VA acknowledged the buddy statement and advised the Veteran that his claim remained in a disallowed status. The Veteran did not submit a notice of disagreement and the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 1975, a mostly blank hospital admission notice was associated with the record. Such evidence is not new and material evidence pursuant to § 3.156(b). See Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). The Veteran sought to reopen his claim in October 2006. The AOJ declined to reopen the claim in a September 2007 rating decision. The Veteran timely initiated an appeal with the submission of an NOD. The RO issued a statement of the case in September 2008. The Veteran did not perfect the appeal by filing a Form 9. In addition, no new and material evidence was received within one year of the rating decision. The Veteran submitted medical records pertaining to a pending service connection claim for PTSD. Within those records were treatment records that documented a hospital visit for epigastric discomfort, dyspepsia, vomiting, and diarrhea. Such evidence was duplicative and cumulative of the evidence previously of record, and did not relate to an unestablished fact necessary to substantiate the claim. As such, it was not new and material evidence pursuant to § 3.156(b). See Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). Therefore, the September 2007 rating decision became final. In November 2011, the Veteran submitted an informal claim seeking service connection for what he described as “problems with my stomach.” The Board notes this is a petition to reopen his previously denied claim of service connection for ulcers. This claim is based on similar symptoms and etiology generally asserted by the Veteran in connection with his previous claims for service connection for ulcers. Thus, the claim presently on appeal is a continuation of the previous claims for service connection for ulcers, however variously claimed and diagnosed, purportedly due to events he experienced in service. Therefore, under Boggs and Velez, new and material evidence is required to reopen the claim. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Since the last final decision, VA has received additional evidence related to this claim, in particular a May 2013 VA examination report and statements from the Veteran. Some of the evidence was not previously submitted, and therefore is new. The VA examiner provided a nexus opinion for the ulcer condition. This is new. The Veteran’s statements indicate that he believes his stomach condition is a direct result of the stressful conditions under which he served his country. This newly received evidence relates to an unestablished fact – whether the Veteran’s current stomach condition is related to his in-service stomach problems – and therefore is material. As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for ulcers is granted. REASONS FOR REMAND 1. Entitlement to service connection for a stomach condition is remanded. Having reopened the claims of entitlement to service connection for ulcers, further development is required. The current claim is for service connection for a stomach condition, to include ulcers. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service treatment records reflect complaints and treatment for gastrointestinal problems. The Veteran reports that his stomach pain and “stress” have been a lifelong chronic health issue since his time in service. The Veteran further reports that he feels his stomach problems are a direct result of the stressful conditions in-service. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD). The Board find that this raises a secondary theory of service connection. The Veteran underwent a VA examination in May 2013. The examination report reflects a current diagnosis of post-gastrectomy syndrome and a history of ulcers. The examiner opined that this disability was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. No rationale was provided. In a May 2015 addendum opinion, the examiner explained the rationale was that there was no documentation of chronicity since military separation in 1946. A lack of documented symptomatology is an inadequate rationale, on its own, to refute service connection. See Dalton v. Peake, 21 Vet. App. 23 (2007). Further, the current VA opinion does not reflect adequate consideration of the Veteran’s competent and credible lay statements regarding onset of his stomach symptoms during service (related to stressful events) and continuity after discharge. Finally, the medical opinion does not address whether the Veteran’s stomach condition is secondary to his service-connected PTSD. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, on remand, a new VA examination and opinion, which considers secondary service connection, should be provided. 38 C.F.R. § 4.2. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a medical examination to determine the nature and etiology of his claimed stomach condition(s). The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with authoring the opinion. The examiner is asked to address the following: a. Please identify any ‘stomach condition(s)’ present during the appeal. b. Is it at least as likely as not that any currently diagnosed stomach condition(s) had onset in service or, are otherwise related to service and the symptoms reported therein? A fully-explained rationale must be provided for the opinion proffered. In doing so, the examiner must remain mindful that the Veteran is competent to report, that he experienced gastrointestinal symptoms during service and afterwards since this requires only his personal knowledge. The Board has determined he is credible in this regard. c. Is it at least as likely as not that the Veteran’s stomach condition(s) is either proximately caused or aggravated by his service-connected PTSD? This requires two separate opinions: one for proximate causation and a second for aggravation. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is found, then to the extent possible, the examiner should attempt to establish a baseline severity of the stomach condition(s) prior to aggravation by the PTSD. (Continued on the next page)   A fully-explained rationale must be provided for the opinions proffered. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel