Citation Nr: 18156759 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-60 129 DATE: December 10, 2018 ORDER New and material evidence having been received; the claim for entitlement to service connection for Crohn’s disease is reopened. REMANDED The issue of entitlement to service connection for Crohn’s disease is remanded. FINDINGS OF FACT 1. A May 2013 rating decision denied entitlement to service connection for Crohn’s disease; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the May 2013 rating decision. 2. Evidence received since the May 2013 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for Chron’s disease. CONCLUSIONS OF LAW 1. The May 2013 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103 (2017). 2. New and material evidence having been received; the claim for entitlement to service connection for Chron’s disease is reopened. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to March 1984 and from January 2005 to June 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Analysis In this case, the RO denied service connection for Chron’s disease in a May 2013 rating decision because there was no evidence that the Veteran’s preexisting condition was permanently aggravated by his active service. Thus, service connection for Chron’s disease could not be established. The Veteran was notified of the decision in a letter dated May 24, 2013. The Veteran did not file a notice of disagreement with the May 2013 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 2013 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105. Evidence associated with the record since the final May 2013 rating decision includes the November 2016 VA Form 9, Appeal to Board of Veterans’ Appeals. The Veteran stated that he currently takes additional medication due to his Chron’s disease, which demonstrates that his condition was been aggravated. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the statement raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for Chron’s disease, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to Service Connection for Chron’s Disease The Veteran contends that he currently has Chron’s disease that was permanently aggravated by his active military service. Specifically, the Veteran stated that he currently has up to six bowel movements a day and that he takes multiple medications in order to control his Chron’s disease. See VA Form 9, Appeal to Board of Veterans' Appeals, received November 2016. The Veteran was provided a VA examination related to his Chron’s disease in August 2012. The VA examiner noted the Veteran’s diagnosis of Chron’s disease and in a September 2012 opinion, opined that his Crohn’s disease was at least as likely as not aggravated by his deployment in the military. As rationale, the VA examiner stated that upon discharge the Veteran now has daily leakage. The VA examiner further stated that the Veteran needs to take antibiotics and other medication; however, his Crohn’s disease is not controlled with the prescribed medication regime. In May 2013, the same VA examiner provided a second opinion and stated that the Veteran’s military service did not aggravate his pre-existing condition. As rationale, the VA examiner stated that the Veteran has rectal fistula that required the use of long term antibiotics and that he takes medication to control the inflammation. The VA examiner further stated that the Veteran’s Crohn’s disease is under control and that his symptoms are the same now as they were prior to his deployment. The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1110, 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b) (2017). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition.” 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the veteran’s claim is one for service connection. Concerning whether a disability was “noted” on enlistment, the Board notes that the Veteran had two separate periods of active service. The Veteran was provided an entrance examination in December 1982, prior to his first period of active service. The Veteran’s entrance examination did not note Crohn’s disease. Therefore, the Board finds that Crohn’s disease was not “noted” on examination. See 38 C.F.R. § 3.304 (b) (1); see also Crowe v. Brown, 7 Vet. App. 238, 245. As a result, the presumption of soundness attaches to the Veteran’s August 1983 to March 1984 period of active service. As to the Veteran’s January 2005 to June 2006 period of active service, an enlistment report of medical examination is not associated with the service medical treatment records relating to an entrance examination. The Board recognizes that if a veteran was not examined on entrance into active service, the presumption of soundness does not attach. See Crowe, 7 Vet. App. at 245; Smith v. Shinseki, 24 Vet. App. 40 (2010). Nonetheless, absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody)). Thus, the Board finds that Crohn’s disease is not “noted” on examination, prior to the Veteran’s January 2005 to June 2006 period of active service, and the presumption of soundness attaches. See 38 C.F.R. § 3.304 (b). Thus, in order to rebut the presumption of soundness, it must be shown by clear and unmistakable evidence that the Veteran’s Crohn’s disease was both pre-existing and not aggravated by his period of active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; also see Wagner, 370 F. 3d at 1096. The Board finds that the August 2012 VA examination and addendum opinions are not adequate for decision-making purposes. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here the August 2012 VA examination and addendum opinions are inadequate for decision making purposes since the VA examiners opinions are internally inconsistent. In the September 2012 opinion the VA examiner opined that the Veteran’s Crohn’s disease was at least as likely as not aggravated by his deployment because since his discharge he now has daily leakage and needs to take medication to control his Crohn’s disease. However, in the May 2013 opinion the VA examiner stated that his symptoms post-discharge are the same as his symptoms prior to his discharge. As such, the May 2013 and September 2012 VA opinions are inconsistent. Additionally, the VA examiner did not address the September 2007 private treatment record that reflects the Veteran has six bowel movements a day due to his Crohn’s disease. As the August 2012 VA examination and subsequent VA addendum opinions are not adequate for decision-making purposes, the Veteran must be provided a new VA examination to address whether his current Crohn’s disease was both pre-existing and not aggravated by his active service. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from July 2015. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from July 2015. 2. After completing the above development, schedule the Veteran for a VA examination to determine the nature and etiology of his Crohn’s disease. Provide a copy of this remand and the record for the examiner to review. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Express an opinion as to whether the Veteran’s Crohn’s disease clearly and unmistakably preexisted the Veteran’s entrance into active service from January 2005 to June 2006 and; if so, whether such disorder clearly and unmistakably did not increase in severity (beyond natural progression) during service. Any such clear and unmistakable evidence must be identified. (b.) If the examiner deems that the Veteran’s Crohn’s disease did not clearly and unmistakably preexist his January 2005 to June 2006 period of active service, is it at least as likely as not (50 percent or greater probability) that his Crohn’s disease had its onset during service or is causally or etiologically related to the January 2005 to June 2006 period of active service. Rationale must be provided for the opinion proffered. The VA examiner must address the September 2007 private treatment record reflecting that the Veteran has six bowel movements per day due to his Crohn’s disease. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for Crohn’s disease may be granted. If the benefit sought remains denied, furnish the Veteran   and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel