Citation Nr: 18157262 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-19 248 DATE: December 12, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for ulcerative colitis is reopened. Service connection for ulcerative colitis is granted. FINDING OF FACT The Veteran’s ulcerative colitis had its onset during military service. CONCLUSION OF LAW The criteria for service connection for ulcerative colitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to August 1964. This case in on appeal from a February 2016 rating decision. In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The record was held open for 60 days. In August 2018, the Veteran’s representative submitted additional evidence. 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for ulcerative colitis. The Board will first address whether the Veteran’s previously denied claim of service connection for ulcerative colitis should be reopened. The claim had been filed and denied multiple times since the Veteran’s first claim for the condition in March 1969. Most recently, the claim was denied in a January 2012 rating decision. The Veteran was notified of the decision by letter dated in February 2012, which was mailed to the then current mailing address of record. He did not submit a notice of disagreement (NOD) with the decision. No new and material evidence was received within one year. Although a relevant lay statement from R.F. regarding in-service stomach problems is dated in March 2012, the date stamp of receipt by the RO is in March 2013. This is shown to have been received after the one-year time to appeal. Thus, 38 C.F.R. § 3.156(b) does not apply. As the Veteran did not appeal the January 2012 decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran submitted a January 2017 letter from Dr. S.M., (M.D. in gastroenterology) from the Bedford VA clinic providing an opinion on the Veteran’s condition and nexus to his military service and a September 2015 letter from Dr. D.S., (M.D. in internal medicine), also providing an opinion on the Veteran’s condition and nexus to his military service. Additionally, in April 2017 the Veteran submitted a Disability Benefits Questionnaire (DBQ) from Dr. D.S. relating his condition to his military service, treatment records from the Bedford VA Medical Center (VAMC) from September 2015 to July 2017 and most recently, after a Board hearing in August 2018, the Veteran submitted a letter from Dr. M.R., M.D. (Board-certified in internal medicine), dated in July 2018, opining that the Veteran’s ulcerative colitis to be one related to his military service. Dr. M.R. stated that it is more likely than not that the Veteran “developed[ed] UC while he was in active duty military,” basing her opinion on scientific research, a thorough review of the Veteran’s medical history and her experience treating the condition. Thus, the Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for ulcerative colitis is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also the July 2018 Board hearing testimony. Accordingly, the Board will now proceed to address the reopened claim on the merits. The Veteran is not prejudiced in this regard given the beneficial outcome. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010).   2. Service connection for ulcerative colitis. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran seeks entitlement to service connection for his ulcerative colitis condition, which he asserts was incurred during his military service. He specifically points out an episode of chronic diarrhea with rectum bleeding in 1963, while conducting military exercises at the field in Germany. The Veteran asserts that he was seen by his unit’s medics and misdiagnosed with dysentery. A review of the Veteran’s service treatment records (STRs) does not reflect an in-service event or events of diarrhea, rectum bleeding or dysentery. However, STRs reflect one complaint in November 1963, recorded as “Sore and sick,” with no further details. Additionally, STRs document another complaint in May 1964 for “pain in the groin.” After service, the Veteran’s VA treatment records show multiple complaints regarding the claimed condition as early as 1966. He was diagnosed with chronic ulcerative colitis in 1969, during an emergency episode that led to the Veteran’s admission to the Boston VAMC. The doctor noted that “[the Veteran’s] past history showed that five and a half years ago, while in active service in Germany, he had a five-day episode of bloody diarrhea which was treated symptomatically and cleared.” The Veteran submitted a December 1974 statement from Mr. R.F., a fellow Veteran who at the time was assigned to his same unit in Germany, who stated the following: “While we were on the field, he started bleeding from his rectum. At that time, I told him to go see the medics but he felt ashamed as his knowledge of the English language was very limited. The bleeding would come and go until finally, he did seek medical help. They gave him some medicine to stop the bleeding”. Another statement from Mr. R.F. was received in March 2013, providing that in the early part of 1963, the Veteran “began complaining about constant abdominal pain and frequent diarrhea, [which] continued for the remainder of [their] tour of duty.” In a January 2010 lay statement, the Veteran stated that since his discharge in 1964, he has been consistently diagnosed and treated for colitis. During the July 2018 Board hearing, the Veteran testified that his condition began during a field exercise in 1963. He stated he visited his unit’s aid station, “went to the tent and convinced the guys [he] was bleeding a little bit with diarrhea. [They] gave [him] some [] stuff [] to stop the diarrhea, which it worked, but [he] still had a cramp in [his] stomach all the time.” The Board notes consistency in the statements submitted by the Veteran and Mr. R.F. Their statements assert an event while conducting military training in the field, on or around the same time and similar observations of symptoms. The explanation for the lack of documentation, given the language barrier, is sound. Also, the VA treatment records from the 1969 emergency admission, which made reference to the onset of symptoms, help to corroborate the testimonies offered in the lay statements and adds to its probative weight given that it took place not that many years after service. Thus, even though not documented in the STRs, these credible statements serve to establish the in-service injury or disease element of the claim. As to the nexus element, medical evidence of record reflects that the Veteran had been hospitalized for ulcerative colitis over eight times between 1969 and 2017, with complaints of rectal bleeding, chronic diarrhea, dehydration, and abdominal cramping. Private treatment records reflect that in 1981, the Veteran underwent surgery for a total proctectomy and an ileostomy. Additionally, medical opinion evidence submitted from three internal medicine specialists who have been directly involved with the Veteran’s ulcerative colitis treatment throughout the years is probative to the nexus element. In September 2016, a medical opinion and a disability benefits questionnaire were submitted from his private physician, Dr. D.S., who asserted that the Veteran “suffered severe stress while he was in the military serving his country. This resulted in his developing ulcerative colitis as a result of this stress during his service.” In January 2017, Dr. S.M., a gastroenterologist at the Boston VA Boston medical center stated that the Veteran “was drafted in the Army in 1962 and did not speak English. He was unable to tell anyone about his diarrhea and abdominal pain due to the language barrier. He suffered severe stress when he was in the military which resulted in his developing bowel symptoms”. In August 2018, a medical opinion from a Board-certified internal medicine specialist, Dr. M.R., opined that after reviewing the Veteran’s records; Mr. R.F.’s lay statements; the notes from Dr. D.S.; and Dr. S.M., while on active duty the “Veteran had low grade diarrhea, at times bloody, and one acute episode of chronic bloody diarrhea because he did not speak English and therefore, he reports being incorrectly diagnosed with dysentery.” Dr. M.R. opined that ulcerative colitis has been historically underdiagnosed in the U.S. due to the non-specific nature of its symptoms. Her opinion concluded by asserting that based on her “training, experience and professional qualifications and under penalty of perjury, it is more likely than not that [the Veteran] developed UC while he was in active duty military.” The Board notes that the medical evidence submitted confirms a history and a current diagnosis of ulcerative colitis. The Board also finds that three physicians agree that the Veteran’s ulcerative colitis had its onset during his active service. In reaching the opinion, the doctors recounted the Veteran’s history during service and post-service treatment. Two of the medical doctors agree that it is related to the five-day diarrhea episode in 1963. Although STRs do not account for a specific in-service episode, the Board finds the medical and lay evidence sufficient to establish this in-service incident. The Board finds Dr. M.R.’s opinion persuasive as to the etiology and nature of the Veteran’s current ulcerative colitis condition. Her opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). Further, the physician not only took into consideration the Veteran’s testimony and the buddy lay statements as to the onset of his current disability, but also made her conclusion based on the entire medical evidence of record and her experience as an internal medicine specialist. (Continued on the next page)   In light of the findings and the evidence discussed above, the Board finds that the Veteran’s ulcerative colitis had its onset during his military service. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for ulcerative colitis is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel