Citation Nr: 20005151 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-12 184 DATE: January 23, 2020 ORDER New and material evidence having been received, the claim for service connection for a gastrointestinal disability is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. FINDING OF FACT Service connection for a gastrointestinal disability (characterized as gastroesophageal reflux disease, also known as GERD) was denied in a July 2014 rating decision; evidence received since that decision relates to a previously unestablished element of the claim. CONCLUSION OF LAW The July 2014 rating decision denying service connection for a gastrointestinal disability (characterized as GERD) is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1975 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the May 2018 rating decision, the RO denied the Veteran’s claims for service connection for a right shoulder disorder and for GERD. The Board notes that although the Veteran initially filed a claim for GERD, the post-service treatment records available in his claims file indicate additional gastrointestinal diagnoses, such as a hiatal hernia and functional dyspepsia. As such, the Board has broadened the characterization of the claim on appeal to entitlement to service connection for any gastrointestinal disorder to recognize this fact. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-97 (2009). New and Material Evidence Historically, the Veteran applied for entitlement to service connection for GERD (now recharacterized by the Board as a claim for any gastrointestinal disorder) in July 2013. Although the RO arranged for the Veteran to undergo a VA examination in connection with his claim, he did not report for the examination. Thereafter, the RO denied his claim in a July 2014 rating decision, which stated that the then-existing evidence of record was silent for a currently diagnosed disability. The Veteran did not appeal the rating decision. Additionally, no new or material evidence was received within the one-year period following the rating decision, and no outstanding service department records were subsequently added to the record. As such, the July 2014 rating decision became final. 38 C.F.R. §§ 3.160(d), 3.156(b), (c). Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Additional evidence received since the prior denial of the claim includes a March 2018 VA examination report, which reflects a current diagnosis of GERD. This evidence is new, as it was not of record at the time the claim was denied in July 2014. The evidence is also material, as it relates to the previously unestablished element of whether the Veteran has a currently diagnosed disability. As new and material evidence has been received, the claim for a gastrointestinal disability is reopened. However, as explained in the Remand portion of the decision, additional development is necessary prior to adjudicating the claim on its merits. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disorder. The Veteran claims that he suffered a right shoulder injury in 1980 while serving as a warehouseman at Clark Air Base in the Philippines, which caused his current right shoulder disorder. In connection with his right shoulder disorder claim, the Veteran underwent a March 2018 VA examination. The Veteran reported to the VA examiner that he had most recently worked as an IT Manager with a private company and that he worked full-time overseas. The Veteran’s claims file indicates that the Veteran served as a civilian but received medical care at military bases while abroad. The VA examiner reviewed the Veteran’s medical history and noted that in January 1980, he reported neck pain radiating to his right shoulder. Subsequently, the Veteran complained of neck pain and muscle spasms during his service. Additionally, the VA examiner noted that in October 2014 the Veteran suffered a right shoulder sprain after falling off a ladder and received subsequent treatment and physical therapy for his right shoulder pain at Al Udeid Air Base, Qatar. The VA examiner also noted the Veteran’s subsequent treatment at the VA Medical Center in Miami for his right shoulder pain beginning in 2016. Ultimately, the VA examiner opined that the Veteran’s right shoulder disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the VA examiner explained that although the Veteran complained of neck pain that radiated to his right shoulder on one occasion in January 1980, he was only treated for neck pain throughout the rest of his service. The VA examiner went on to state that his current right shoulder condition surfaced in February 2014 after he incurred an injury in Qatar. Because there was no definite, convincing medical evidence that the Veteran sustained any specific injury to his right shoulder during his years in service, the VA examiner found that it was unlikely that the Veteran’s right shoulder injury was incurred in or caused by the shoulder/neck complaints during his service. The Board acknowledges that the VA examiner provided a detailed medical history and rationale for his opinion. However, upon careful review of the available medical evidence of record, the Board notes that the October 2014 records the examiner referred are absent from the claims file. As such, there appear to be outstanding post-service treatment records pertinent to the Veteran’s claim. Additionally, in a September 2018 VA treatment record, the Veteran reported that during service he was seen by a military doctor at Elmendorf Air Base in Alaska, where he was told that his right shoulder cuff was likely torn. This service treatment record also does not appear to be in the file, suggesting that outstanding service records may exist. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). It does not appear, however, that the RO has previously attempted to locate these outstanding records. As such, remand is necessary for the RO to attempt to obtain them and associate them with the claims file. 2. Entitlement to service connection for a gastrointestinal disorder. With respect to the Veteran’s claim for a gastrointestinal disorder, he asserts that he has experienced constant abdominal and mid-epigastric pain for several years since service. This pain, which radiates upwards and at times to his back, requires ongoing care and daily medication. The Veteran has told his treatment providers that his symptoms began in service after he was hospitalized with severe epigastric pain, which required a tube to be placed to remove air and bile from his stomach. Since this incident, the Veteran reported, he has experienced pain and bloating that is worse when bending and relieved by burping. See September 2018 VA GI General Note Addenda. The Veteran’s service treatment records reflect an incident in May 1987 during which the Veteran was hospitalized due to severe abdominal pain that radiated to his back, which was diagnosed as duodenitis. His service treatment records also demonstrate that he was diagnosed with inguinal and umbilical hernias during service, for which he received surgery in 1999. Furthermore, in his June 1995 service treatment records, a treating clinician indicated that he had discussed gastrointestinal symptoms with the Veteran. In a February 2007 record from the Expeditionary Medical Group at Al Udeid Air Base, the Veteran complained of chest and stomach pain, which he said he had been experiencing for the past two years. The treatment record also reflected that he had been prescribed medication for acid reflux, and that the treatment provider recommended for the Veteran to ask for a referral to be evaluated by a gastroenterologist. Starting in 2016, when the Veteran established care at the VA Medical Center in Miami, the Veteran’s post-service VA treatment records reveal several gastroenterological appointments. His VA treatment records reflect diagnoses of aerophagia, habitual burping, and functional dyspepsia with poor fundus accomodation, as well as GERD and a hiatal hernia. See, e.g., August 2017 VA Gastroenterology Note. Additionally, the Veteran’s VA treatment records reflect that the Veteran and his treatment providers discussed prior medical treatment he received for his gastrointestinal disorder. The record reflects that he received treatment or had procedures or tests performed while working abroad in Qatar and Germany. However, these treatment records do not appear in the claims file, and it does not appear that the RO has attempted to obtain them. As such, remand is necessary to attempt to obtain these outstanding post-service treatment records. Additionally, the Board notes that the Veteran underwent a March 2018 VA examination in connection with his gastrointestinal disorder claim. The March 2018 VA examiner noted diagnoses of GERD and a hiatal hernia but did not discuss any of the other gastrointestinal diagnoses in the Veteran’s post-service treatment records, such as dyspepsia. Moreover, although the VA examiner discussed the May 1987 service treatment records related to gastrointestinal pain, she failed to discuss other evidence of gastrointestinal symptoms from the service treatment records, such as the Veteran’s umbilical and inguinal hernias or his associated gastrointestinal symptoms. An opinion that does not consider all the relevant evidence of record is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, remand is necessary to obtain an addendum medical opinion that accounts for this relevant evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding VA treatment records, post-service treatment records from medical facilities on U.S. military bases, and relevant private treatment records. After obtaining any necessary authorization from the Veteran, all outstanding VA treatment records and any outstanding, relevant private treatment records should be obtained and associated with the claims file. With respect to private treatment records, the RO must make at least two (2) attempts to obtain records from any identified sources. If these records are unavailable, inform the Veteran and afford him another opportunity to submit any copies in his possession. In addition, the Veteran sought medical care at U.S. military bases, including Al Udeid Air Base, Qatar, as a civilian following his separation from service. After obtaining any necessary authorization, the RO should attempt to obtain any outstanding post-service treatment records from such air base(s) from the appropriate repository and to then associate them with the Veteran’s claims file. If any identified records are not obtainable (or do not exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain any outstanding service treatment records, specifically records from Elmendorf Air Base in Alaska, from the appropriate repository and associate any outstanding records with the Veteran’s claims file. If any identified records are not obtainable (or do not exist), the Veteran and his representative should be notified, and the record clearly documented. 3. Then, after conducting any other development deemed necessary by the record, to include consideration of whether to obtain an addendum to the March 2018 VA examination on the Veteran’s right shoulder disorder, the RO should obtain an addendum opinion on the etiology of the Veteran’s gastrointestinal disorder. The Veteran’s claims folder and a copy of this remand should be furnished to the examiner. The examiner should indicate in the examination report that he or she has reviewed the claims file. The examiner must identify all current gastrointestinal disabilities that were present at the time the claim was filed or at any point during the pendency of this appeal. The examiner is then asked to opine whether it is at least as likely as not (50 percent or greater probability) any current gastrointestinal disability had its onset in service or was caused by, or otherwise related to, his service. In doing so, the examiner should consider the Veteran’s past gastroenterological diagnoses, as well as the Veteran’s reports of abdominal pain and gastrointestinal symptoms in his service treatment records. The examiner must provide a comprehensive opinion that includes a complete rationale for all conclusions reached. If the examiner is unable to provide an addendum opinion without performing a physical examination of the Veteran, a new examination should be scheduled to assess the etiology, onset, nature, and severity of the Veteran’s gastrointestinal disorder. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.