Citation Nr: 21063235 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 10-19 000A DATE: October 13, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability; the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for a left leg condition; the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for a lung disability; the appeal is granted to this extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal disability; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left leg condition is remanded. Entitlement to service connection for a right upper leg condition is remanded. Entitlement to service connection for a lung disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a gastrointestinal disorder, to include a gastric ulcer, gastritis, duodenitis, or gastrointestinal reflux disease (GERD), is remanded. Entitlement to an evaluation in excess of 10 percent for hemorrhoids, to include entitlement to a temporary total evaluation for treatment requiring convalescence, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the March 2002 rating decision that denied service connection for a back disability, left leg disability, and tuberculosis; this decision became final. 2. Additional evidence received since the final March 2002 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for a back disability, left leg disability, and lung disability. 3. The Veteran did not appeal the April 1971 rating decision that denied service connection for a gastric ulcer; this decision became final. 4. Additional evidence received since the final April 1971 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a gastrointestinal disorder. CONCLUSIONS OF LAW 1. The March 2002 rating decision denying the claims of service connection for a back disability, left leg disability, and tuberculosis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claims of service connection for a back disability, left leg disability, and lung disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 1971 rating decision denying the claim of service connection for a gastric ulcer is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen the claim of service connection for a gastrointestinal disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 and December 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the claims file. Subsequently, the Board remanded the matter for further development in April 2018 and September 2020. Generally, the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and any other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, although the Veteran filed a claim for gastric ulcers, a review of his medical treatment records indicate that he has also been diagnosed with gastritis, duodenitis, peptic ulcer, and GERD. Therefore, the Board has expanded the Veteran's claim as noted above. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction (AOJ), the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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). The Board must review 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. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. 1. New and material evidence to reopen the claim of service connection for a back disability 2. New and material evidence to reopen the claim of service connection for a left leg disability 3. New and material evidence to reopen the claim of service connection for a lung disability The Veteran's claims for service connection for a back disability, left leg disability, and tuberculosis were denied in a March 2002 rating decision on the basis that the evidence did not show that the conditions were incurred in or caused by service. The Veteran did not appeal the March 2002 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the March 2002 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that there is a sufficient evidentiary basis to reopen the claims for service connection for a back disability, left leg disability, and lung disability. New evidence received since the last final denial in March 2002 includes the Veteran's statements and testimony at the February 2018 Board hearing as well as his VA and private medical records. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claims. Accordingly, as new and material evidence has been received, the Board finds that the claims for service connection for a back disability, left leg disability, and lung disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence to reopen the claim of service connection for a gastrointestinal disorder The Veteran's claim for service connection for a gastric ulcer was denied in an April 1971 rating decision. The Veteran did not appeal the April 1971 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the April 1971 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for a gastrointestinal disorder. New evidence received since the last final denial in April 1971 includes the Veteran's statements and testimony at the February 2018 Board hearing, his VA and private medical records, and the November 2007 VA examination report. The Board finds that this evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 5. Service connection for a back disability 6. Service connection for a left leg disability 7. Service connection for a right upper leg disability The Veteran contends that his back and bilateral leg disabilities are due to service. Specifically, he testified that he injured his back and legs in an APC vehicle accident during service. The Veteran's service treatment records (STRs) note that he reported having pain in both legs in August 1969; he was placed on light duty for two days. In his March 1971 report of medical history, the Veteran reported having a tricked or locked knee. The Veteran's post-service medical records note diagnosis of multilevel degenerative disc disease with facet joint arthropathy as well as reports of pain radiating into the bilateral lower extremities. The Veteran has not been provided a VA examination with respect to these claims. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, remand for a VA medical examination and medical opinion is necessary to determine the nature and etiology of the Veteran's back disability, left leg disability, and right upper leg disability. 8. Service connection for a lung disability 9. Service connection for a sinus disability The Veteran contends that his lung and sinus disabilities had their onset during service. Specifically, he testified that he would sneeze and cough all night and would also have a runny nose. He stated that he declined to go to sick call at the time. The Veteran's medical records note diagnoses of chronic obstructive pulmonary disease, chronic sinusitis, chronic rhinitis, and sinus bradycardia. A review of the record indicates that the Veteran has not been provided a VA examination with respect to these claims. The Board finds that the low threshold for provision of a VA examination has been reached and that a VA examination is necessary to evaluate the nature and etiology of any diagnosed lung and sinus disabilities. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83. 10. Service connection for a gastrointestinal disorder The Veteran contends that his gastrointestinal disorder had its onset during service. The Veteran's STRs reveal that he sought treatment for an upset stomach in June 1969 as well reported having pain on eating and nausea in May 1970. In June 1970, the Veteran reported having a burning sensation before and after meals and occasional nausea while eating; the examiner noted an impression of hyperacidity, gastric origin. In his March 1971 report of medical history, the Veteran reported having stomach/intestinal trouble. The Veteran was afforded a VA examination in November 2007, in which the examiner noted that the Veteran was diagnosed with a duodenal ulcer approximately 17 years after separation from service. The examiner stated that there was no objective evidence of peristent hyperacidity in the year or years following military experience. He further stated that because an upper GI or esophagogastroduodenoscopy were not performed during service, an opinion regarding the Veteran's gastrointestinal condition would resort to mere speculation. The Board finds that remand is necessary to obtain a new examination and medical opinion regarding the nature and etiology of the Veteran's gastrointestinal disorder as there is no adequate medical opinion on which to adjudicate the matter. 11. Increased rating for hemorrhoids, to include entitlement to a temporary total evaluation for treatment requiring convalescence A review of the evidence of record since the last December 2020 supplemental statement of the case (SSOC) demonstrates that new evidence has been associated with the claims file. Specifically, the Veteran's medical treatment records from McKinney Medical Center from 2014 to 2020 that pertain, at least in part, to the Veteran's hemorrhoids condition were obtained. The Veteran was provided an opportunity to waive AOJ consideration but did not respond. As indicated in the July 2021 letter, based on this, the Board will remand the claim to allow for initial AOJ consideration of this new evidence. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination with a qualified medical professional to determine the nature and etiology of the Veteran's back, left leg, and right upper leg disabilities. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back, left leg, and right upper leg disabilities occurred in or are otherwise etiologically related to service, to include as due to the APC vehicle incident. If the Veteran's back disability is found to be attributable to service, the examiner is also asked to consider whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral leg disabilities are proximately due to or have been aggravated beyond normal progression by his back disability. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and the examiner must take into account, along with the other evidence of record, the Veteran's statements in formulating the requested opinion. Moreover, the examiner is advised that a lack of documentation on its own is not dispositive of the question. All opinions expressed should be accompanied by supporting rationale. 3. After completing directive #1, schedule the Veteran for an examination with a qualified medical professional to determine the nature and etiology of the Veteran's sinus disability, lung disability, and gastrointestinal disability. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's conditions occurred in or are otherwise etiologically related to service. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and the examiner must take into account, along with the other evidence of record, the Veteran's statements in formulating the requested opinion. Moreover, the examiner is advised that a lack of documentation on its own is not dispositive of the question. All opinions expressed should be accompanied by supporting rationale. 4. Readjudicate the Veteran's claim for an increased rating for hemorrhoids, to include entitlement to a temporary total evaluation for treatment requiring convalescence, based on the entirety of the evidence of record. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.