Citation Nr: 19195967 Decision Date: 12/23/19 Archive Date: 12/23/19 DOCKET NO. 16-32 229 DATE: December 23, 2019 ORDER The appeal to reopen a claim of entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disorder (GERD) and gastroparesis, based on receipt of new and material evidence, is granted. REMANDED Entitlement to service connection for a stomach disorder, to include GERD and gastroparesis, is remanded. FINDINGS OF FACT 1. In an April 2009 rating decision, the Regional Office (RO) denied a claim of entitlement to service connection for stomach problems; the Veteran did not appeal that determination and no new and material evidence was received within one year from issuance of notice of the determination. 2. Evidence received since the April 2009 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a stomach disorder, to include GERD and gastroparesis.   CONCLUSIONS OF LAW 1. The April 2009 rating decision that denied the claim of entitlement to service connection for a stomach disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having been received, the criteria to reopen the previously denied claim for entitlement to service connection for a stomach disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from June 1986 to August 1987 and from May 1990 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran provided testimony at a video conference hearing in March 2019 before the undersigned Veterans Law Judge. A copy of the transcript of the hearing is of record. The Veteran initially submitted a claim for entitlement to service connection for chronic stomach problems. See August 2008 VA Form 21-526. The medical evidence of record includes diagnoses for GERD and gastroparesis. To ensure that all potential stomach disorders are contemplated, the Board has recharacterized the issue on appeal, as shown on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 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. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by 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). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Here, the Board finds that new and material evidence sufficient to warrant reopening the Veteran’s claim for service connection for a stomach disorder, to include GERD and gastroparesis, has been received. In an April 2009 rating decision, the RO denied service connection for stomach problems, on the basis that the evidence of record railed to show that the Veteran had a current diagnosis. The Veteran did not file a Notice of Disagreement (NOD) and no new and material evidence was received within one year of issuance of notice of that decision. 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the April 2009 Rating Decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the April 2009 rating decision, the Veteran submitted medical evidence that demonstrates the Veteran was diagnosed with GERD and gastroparesis. See February 2014 Esophageal Conditions Disability Benefits Questionnaire (DBQ); September 2013 Outpatient Medical Records received in January 2014; November 2013 Private Medical Records received in January 2014. The Board finds the additional medical evidence associated with the file to be new evidence. This evidence is material as it relates to an unestablished fact, evidence of a current disability, necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim, and the reopened claim is characterized as entitlement to service connection for a stomach disorder, to include GERD and gastroparesis. Id.; Clemons, 23 Vet. App. at 5. REASONS FOR REMAND Having reopened the Veteran’s claim of entitlement to service connection for a stomach disorder, to include GERD and gastroparesis, the Board finds that the claim must be remanded for additional development before a decision on the merits can be rendered. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran contends that she has a stomach disorder that began during service, and that her symptoms have continued since separation from service. See July 2014 NOD; March 2019 Hearing Testimony. To date, the Veteran has not yet been afforded a VA medical examination post-discharge from active service to address the Veteran’s claim for a stomach disorder. The VA must provide a medical examination or obtain a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As noted, the Veteran provided additional medical records that document current diagnoses for a stomach disorder. In September 2013 and February 2014, the Veteran was diagnosed with GERD. See February 2014 Esophageal Conditions Disability Benefits Questionnaire (DBQ); September 2013 Outpatient Medical Records received in January 2014. In November 2013, the Veteran underwent a gastric emptying study that resulted in an impression for severe gastroparesis or gastric outlet obstruction. See November 2013 Private Medical Records received in January 2014. However, no medical opinion with regard to whether the noted diagnoses are related to the Veteran’s military service was provided. The Veteran’s service treatment records (STRs) document multiple complaints and treatment for stomach and abdominal pain. See November 1991, May 1992, May 1995, June 1995, October 1995, June 1997, and March 2008 STRs. In October 1995, the Veteran was assessed with GERD versus peptic ulcer disease and assessed with GERD again in June 2002. See October 1995 and June 2002 STRs. In June 1997, the Veteran was assessed with gastritis. See June 1997 STRs. Despite these diagnoses in service, a September 2008 VA examiner concluded that no diagnosis was provided because there was no pathology to render a diagnosis. See September 2008 Pre-discharge VA Examination. In light of the above, the Board finds that the low threshold for providing a VA examination has been met. See McLendon, 20 Vet. App. at 79. Accordingly, a remand is warranted so that the Veteran may be afforded a VA examination to determine the nature and etiology of any stomach disorder, to include GERD and gastroparesis. The matters are REMANDED for the following action: 1. Obtain and associate with the claim file all updated VA treatment records for the Veteran. 2. Then, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any stomach disorder demonstrated of record proximate to, or during the appeal, to include GERD and gastroparesis. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must review all medical evidence provided by the Veteran. The examiner must address the following: (a.) Provide a diagnosis for each stomach disorder(s) demonstrated of record during, or proximate to, the appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed stomach disorder had its onset in, or is otherwise related to, the Veteran’s active duty service. A complete rationale should be given for all opinions and conclusions expressed. In rendering the requested rationale, the examiner must reconcile his/her opinion with the Veteran’s complaints and treatment for stomach and abdominal pain in service, and assessments of GERD vs. PUD in October 1995, assessment of GERD in June 2002, and gastritis in June 1997. 3. After completion of the above, adjudicate the reopened claim of entitlement to service connection for a stomach disorder, to include GERD and gastroparesis. If the benefit sought is not granted, then the Veteran should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review.   The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.