Citation Nr: 18157876 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 18-06 507 DATE: December 14, 2018 ORDER As there is new and material evidence to reopen the claim for service connection for a stomach disorder, to this limited extent, this petition is granted. Entitlement to service connection for brucellosis, claimed as due to Gulf War service, is denied. Entitlement to service connection for Coxiella burnetti, claimed as due to Gulf War service, also is denied. REMANDED The claim of entitlement to service connection for gastrointestinal and gastroesophageal disorders, to include diverticulitis, colon polyps, and gastroesophageal reflux disease (GERD), claimed as irritable bowel syndrome (IBS) due to an undiagnosed illness, is remanded. Entitlement to an increased rating in excess of 30 percent for right ulnar neuropathy is remanded. Entitlement to an increased rating in excess of 20 percent for left ulnar neuropathy also is remanded. FINDINGS OF FACT 1. In a May 2012 simplified notification letter (SNL), the regional office (RO) denied the claim for service connection for a stomach condition due to an undiagnosed illness; the Veteran filed a notice of disagreement (NOD) with that determination in July 2012, the RO issued a statement of the case (SOC) in October 2014; however, the Veteran did not also file a timely substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to “perfect” his appeal of that earlier claim to the Board. 2. Additional evidence since received, however, is not cumulative or redundant of evidence previously considered, relates to an unestablished fact necessary to substantiate the claim for service connection for a stomach disorder, and raises a reasonable possibility of substantiating this claim. 3. The Veteran does not have current diagnoses of brucellosis or Coxiella burnetti (q-fever) or the required indication these are chronic disabilities owing to undiagnosed illness attributable to Persian Gulf War Service. CONCLUSIONS OF LAW 1. The May 2012 SNL in which the RO denied service connection for a stomach disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. But there is new and material evidence to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are not met, however, for service connection for brucellosis and Coxiella burnetti (q-fever). 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to December 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from December 2015 and November 2016 rating decisions. The December 2015 rating decision denied service connection for brucellosis and Coxiella burnetti and denied a rating in excess of 20 percent for left ulnar neuropathy and 30 percent for right ulnar neuropathy. The November 2016 rating decision denied service connection for IBS. As regards characterization of the appeal, upon review of the record, the Board determines that the IBS issue on appeal should be characterized as whether new and material evidence has been received to reopen the claim of entitlement to service connection for a stomach disorder. See Velez v. Shinseki, 23 Vet. App. 199 (2009) (in determining whether new and material evidence is required, the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries). Here, the Veteran previously claimed entitlement to service connection for a stomach condition, and indicated that he had IBS or diarrhea. As made clear below, the claim is not based on distinctly diagnosed disease or injuries, thus, the Board has recharacterized the issue on the title page of this decision. Further, the Board has recharacterized the claim for a stomach disorder to include diagnoses of gastrointestinal and gastroesophageal disorders of record, as also reflected on the title page, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also sees that, after the agency of original jurisdiction’s (AOJ’s) last adjudication of the claims and prior to certification of the appeal to the Board, VA treatment records and the reports of a VA compensation examination were obtained. However, the VA treatment records are duplicative and were already considered by the AOJ. Cf. §§ 19.31, 19.37 (2017). Further, the VA examination reports are not pertinent to the claims.   Application to Reopen the Claim for Service Connection for a Stomach Disorder The Veteran’s claim for service connection for a stomach condition was previously considered and denied in a May 2012 SNL, because there was no evidence then of record of treatment for a stomach disorder during his time in service. The Veteran filed an NOD in July 2012. An SOC was issued in October 2014, which explained that the Veteran did not have a diagnosed disability, to include IBS based on information contained in an October 2014 VA examination report. The Veteran did not file a substantive appeal (VA Form 9 or equivalent statement) with respect to the claim, to in turn complete the steps necessary to “perfect” his appeal of that earlier claim to the Board. See 38 C.F.R. §§ 20.200, 20.201, etc. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claim, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, that prior denial of this claim is a final and binding determination. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly-received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it also is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” evidence analysis, the credibility of the evidence is presumed, unless the assertion is beyond the competence of the person making it or inherently incredible. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. The evidence of record at the time of the May 2012 SNL earlier denying service connection for a stomach condition consisted of the Veteran’s service treatment records (STRs), VA treatment records, and a VA examination report indicating the Veteran was not diagnosed with a stomach condition. New evidence pertinent to this claim includes medical treatment records indicating the Veteran has been diagnosed with diverticulitis and colon polyps, which may be related or attributable to his Gulf War service based on his assertions. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the May 2012 SNL is new and material within the meaning of 38 C.F.R. § 3.156 (a), warranting reopening of this service-connection claim for a stomach disorder. See Justus, 3 Vet. App. at 513. There are now diagnoses of stomach disorders and possible association of these disorders with the Veteran’s military service, hence, reason to reopen this claim. Service Connection for Brucellosis and Coxiella burnetti Service connection is granted for disability resulting from disease or injury incurred or aggravated during active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a current disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship, i.e., “nexus” between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran served in Southwest Asia and, therefore, is eligible for consideration of presumptive service connection for certain disabilities occurring in Persian Gulf War veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran has claimed entitlement to service connection for brucellosis and Coxiella burnetti (q-fever), which are presumed to be service connected in Persian Gulf War veterans under specific circumstances. 38 C.F.R. § 3.317(c). For the following reasons and bases, however, these claims must be denied. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”). Recently, the Federal Circuit held that pain can constitute disability if it results in impairment and is due to disease or injury in service. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. April 3, 2018). Here, though, the record does not show the Veteran has been diagnosed with these infectious diseases or that there is presently or has been at any time since or contemporaneous to the filing of these claims suggestion they are associated with or the result of his military service – in particular, Persian Gulf War service. Notably, during the December 2015 VA examination, he denied having been diagnosed with these conditions. He reported symptoms of headaches, pain in joints, and numbness and pain in hands. But the examiner concluded there was no objective evidence of brucellosis or Coxiella burnettis on examination or in the Veteran’s medical records, to include STRs. The Veteran has not provided any contrary evidence suggesting he has brucellosis and Coxiella burnetti. The Veteran’s post-service records are unremarkable for any diagnosis of such infectious diseases. Accordingly, these claims must be denied, as he does not have the required suggestion of them – either in the way of actual diagnosis or, alternatively, suggestion they are chronic illnesses or multi-symptom illnesses affecting him owing to Persian Gulf War Service. A veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. The Veteran is competent to report that he has symptoms of pain and numbness, however, an infectious disease is not a medical condition a lay person is competent to diagnose. Id. The Veteran does not have the medical expertise to diagnose himself with such disabilities, nor does he have the medical expertise to provide an opinion regarding their etiologies, including in terms of whether they are attributable to his military service. Thus, his lay assertion that he has current, specific disorders of brucellosis and Coxiella burnetti due to his service, lacks any probative value. In sum, the Board finds that the most probative (meaning most competent and credible) evidence of record does not establish brucellosis and Coxiella burnetti or current diagnoses of any infectious diseases or suggestion of them being a result of Persian Gulf War Service, if undiagnosed. The examiner concluding unfavorably against this notion based her opinion that the Veteran does not have brucellosis and Coxiella burnetti on available treatment records and examination of the Veteran. There is no reason to doubt the examiner’s competence or credibility. See 38 C.F.R. 4.2. Accordingly, service connection for brucellosis and Coxiella burnetti is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for brucellosis and Coxiella burnetti is denied. REASONS FOR REMAND With regard to the reopened claim for stomach, i.e., gastrointestinal and gastroesophageal disorders, the Board notes that 2013 to 2017 VA treatment records provide diagnoses of diverticulitis, GERD, and colon polyps. Thus, an addendum opinion addressing the etiology of these disabilities is needed, especially insofar as whether any is the result of the Veteran’s military service. With regard to the claims for increased ratings for right and left ulnar neuropathy, the Veteran reported in his substantive appeal that he has to undergo surgery for these disabilities. A February 2017 VA treatment record notes the Veteran elected to proceed with surgery (right epicondylar release) for bilateral ulnar compression. An August 2017 VA treatment record indicates the Veteran was advised to schedule the surgery. Given the above, the Board finds that a remand of these claims for further examination to obtain contemporaneous clinical findings and appropriate testing results reassessing the severity of these service-connected disabilities is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Lewinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). As these matters are being remanded, updated VA treatment records should also be obtained, to include records pertaining to any surgery concerning the right and left ulnar neuropathy. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). These remaining claims are REMANDED for the following action: 1. Obtain any updated VA treatment records, to include records pertaining to any surgery related to his right and left ulnar neuropathy. 2. Schedule the Veteran for a VA examination from an appropriate VA physician to address the etiology of the Veteran’s claimed gastrointestinal and gastroesophageal disorders. The physician should review the electronic records contained in the electronic claims file, including a complete copy of this remand. After reviewing the relevant evidence of record, the physician should identify all gastrointestinal and gastroesophageal disorders, to include GERD, diverticulitis, and colon polyps, even if now resolved, and provide an opinion as to whether it had its onset during service or was otherwise causally or etiologically related to service, to specifically include the documented complaints of gastritis and the Veteran’s contention that his exposure to hazardous materials and chemicals during his service in Southwest Asia caused this disability. *Regarding the service in Southwest Asia, an undiagnosed illness as a consequence is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The examiner therefore is asked to comment on both direct and presumptive service connection. A complete rationale should accompany any opinion provided. In addressing the above, the clinician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, and should not be based solely on the lack of documentation of sufficient disability or complaints in the STRs or post-service. 3. The Veteran should be afforded a VA neurological examination to determine the current severity of his service-connected right and left ulnar disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. Keith W. Allen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell