Citation Nr: 18155591 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-06 584 DATE: December 4, 2018 ORDER The application to reopen a claim of service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), is granted. Entitlement to service connection for irritable bowel syndrome (IBS) as a qualifying chronic disability under 38 C.F.R. § 3.317 is granted. FINDINGS OF FACT 1. In a July 2011 rating decision, the RO denied entitlement to service connection for a gastrointestinal disorder (characterized by the RO as GERD). The Veteran did not appeal this decision and new and material evidence was not received within one year after it was issued. 2. Evidence received since the July 2011 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for a gastrointestinal disorder. 3. The Veteran has a functional gastrointestinal disorder, namely IBS, which constitutes a medically unexplained chronic multisymptom illness that is presumptively the result of service in Southwest Asia. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied the Veteran’s claim for entitlement to service connection for a gastrointestinal disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the July 2011 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for gastrointestinal disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for IBS are met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to December 1991, including service in the Southwest Theater of Operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO confirmed and continued the previous denial for service connection for a gastrointestinal disorder (characterized by the RO as service connection for GERD). In the December 2015 Statement of the Case (SOC), the AOJ reopened the Veteran’s previously denied service connection claim for a gastrointestinal disorder (characterized by the RO as service connection for GERD) and confirmed and continued the previous denial for service connection GERD. Regardless, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001). In August 2018, the Veteran was scheduled to appear at a Board hearing before a Veterans Law Judge. He failed to appear for said hearing, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). The issue has been recharacterized to include the related gastrointestinal diagnosis of IBS, in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). New and Material Evidence Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a gastrointestinal disorder. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a July 2011 rating decision, the RO denied the Veteran’s original claim of service connection for GERD on the basis that it did not occur in, was caused by, or aggravated by, his military service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the July 2011 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the July 2011 rating decision consisted of the Veteran’s STRs, VA treatment records, a lay statement from the Veteran’s spouse, and a VA examination report. Specifically, the Veteran’s VA treatment records showed a diagnosis of GERD. In the VA examination report, the examiner found that there was no association between GERD and the Veteran’s military service. In May 2013, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for a gastrointestinal disorder, claimed as a stomach condition. Relevant evidence received after the July 2011 rating decision includes the Veteran’s statements, VA treatment records, an October 2015 VA examination report and a November 2015 addendum opinion. The Veteran’s statement includes his reports that his gastrointestinal disorder is due to his service-connected PTSD and his prescribed medications. The Veteran’s VA treatment records and VA examination report confirms a diagnosis of GERD and that he is his prescribed medications to treat his service-connected PTSD. Also, in the October 2015 VA examination report, the VA examiner provided a positive nexus opinion between the Veteran’s gastrointestinal disorder, namely GERD and diarrhea, and his service-connected PTSD medications. This theory of entitlement to service connection, service connection on a secondary basis to include as due to prescribed medications, was not previously considered. While a new theory of entitlement is not itself a basis for reopening a claim, Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (“A new theory of causation for the same disease or injury that was subject of a previously denied claim cannot be the basis of a new claim”), in determining whether the low threshold for reopening is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. Id. at 118. In this case, the new evidence since the final prior denial in July 2011 includes the Veteran’s lay statements relating his gastrointestinal disorder to his PTSD and the positive nexus opinion between the Veteran’s gastrointestinal disorder and his service-connected PTSD medications. This new evidence could reasonably substantiate the claim through consideration of an alternative theory of entitlement. Accordingly, the evidence received since the July 2011 rating decision is new and material evidence, and reopening of the claim of service connection for a gastrointestinal disorder is therefore warranted. 38 C.F.R. § 3.156. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Applicable Law for Veterans with Service in the Southwest Asia Theater of Operations during the Persian Gulf War. Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Objective indications of a chronic disability include both ‘signs,’ in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a)(3-5). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i)(B). A note to paragraph (A)(2)(I)(B)(3) states that: functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. In the case of claims based on undiagnosed illness or a medically unexplained chronic multisymptom illness under 38 U.S.C. § 1117; 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report signs and/or symptoms of the claimed disability. Id. To determine whether the qualifying chronic disability is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Entitlement to service connection for a gastrointestinal disorder. The Veteran seeks service connection for a gastrointestinal disorder. Specifically, he claims that his gastrointestinal disorder is due to his military service, while stationed in the Persian Gulf, and that he has suffered from symptoms of gastrointestinal disorders, such gastritis attacks, diarrhea, and loose stools, in and since service. See Veteran’s claim dated December 2010 and VA examination report dated July 2011. He explains that he was exposed to raw crude oil, smoke, and radiation from depleted uranium rounds that were used for a chemical weapons dump, which caused his gastrointestinal disorder. For the reasons below, entitlement to service connection for a gastrointestinal disorder, specifically IBS, is warranted. At the outset, the Veteran’s DD Form 214, confirms that he served in Southwest Asia from September 1990 to April 1991. Therefore, the Veteran is a qualifying Persian Gulf Veteran. The Veteran has a current gastrointestinal disorder, namely IBS. Here, the evidence shows that the Veteran has consistently reported symptoms of IBS, such as loose stools and diarrhea. See, e.g., VA treatment record dated December 2011. In a January 2012 VA treatment record, the treatment provider notes that there is “concern for inflammatory bowel disease.” In an October 2015 VA examination report, the examiner’s statements suggested that the Veteran had symptoms of IBS. The Veteran is competent to report signs and symptoms of the claimed disability. See Gutierrez, 19 Vet. App. at 8-9. In light of the Veteran’s complaints of IBS symptoms, the medical evidence, and resolving in reasonable doubt in the Veteran’s favor a current diagnosis for IBS has been established. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). The Veteran reports that he suffered from symptoms of gastrointestinal disorders, such gastritis attacks, diarrhea, and loose stools, in and since service. Indeed, a June 1991 STR notes that the Veteran had bloody diarrhea. Thus, the evidence establishes that the Veteran has a chronic gastrointestinal disability diagnosed as IBS that had its onset during his period of service in the Southwest Asia. In this case, there is no medical opinion that directly addresses the etiology of the Veteran’s IBS. However, IBS is a functional gastrointestinal disorder that constitutes a medically unexplained chronic multisymptom illness within the meaning of 38 C.F.R. § 3.317 and thus a chronic qualifying disability under 38 U.S.C. § 1117. As there is no affirmative evidence that the disability was not incurred during the appellant’s service in Southwest Asia, service connection for IBS is warranted on a presumptive basis in accordance with the provisions of 38 U.S.C. § 1117. See 38 C.F.R. § 3.317 (a)(7). Lastly, as the Board has granted service connection for IBS as a functional gastrointestinal disorder, it need not address entitlement to other gastrointestinal disorders as the function impairment as such will be contemplated in the assigned rating for IBS. In this regard, under the schedule of ratings for the digestive system, 38 C.F.R. § 4.114, when service connection is in effect for multiple gastrointestinal disorders, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In other words, as the Veteran’s rating for IBS will contemplate his gastrointestinal symptoms, the Board need not address entitlement to service connection for separate gastrointestinal disorders as such will not result in higher or separate ratings. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel