Citation Nr: 21064180 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-41 165 DATE: October 19, 2021 ORDER The petition to reopen the previously disallowed claim of entitlement to service connection for a stomach condition, to include gastroesophageal reflux disease (GERD), is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder, and depression, is remanded. Entitlement to service connection for a stomach condition, to include GERD, including as secondary to diabetes mellitus type II (diabetes) and an acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. In an unappealed November 1972 rating decision, the Regional Office (RO) denied entitlement to service connection for a duodenal ulcer. 2. The evidence associated with the claims file subsequent to the RO's November 1972 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim for entitlement to service connection for a stomach condition, to include GERD, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The November 1972 rating decision which denied service connection for a duodenal ulcer is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1969 to July 1971. The issues come before the Board on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran perfected a timely appeal of this determination. See Notice of Disagreement dated August 2014; Statement of the Case dated September 2015; Substantive Appeal dated November 2015. The Veteran testified at a hearing conducted by a Veterans Law Judge in June 2019 and a transcript of the hearing has been associated with the claims file. However, the Veterans Law Judge who held the June 2019 Board hearing is no longer able to participate in the appeal. Generally, the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As such, in August 2021, the Board sent the Veteran a letter providing him with 30 days to respond and indicate whether he desired another opportunity to testify at a hearing before the Board before a new Veterans Law Judge, or if he wanted the Board to proceed with the adjudication of his appeal. The Veteran was notified that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and would proceed accordingly. As the Veteran did not respond to the August 2021 letter within 30 days, the Board will proceed with addressing the appeal. 1. Whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for a stomach condition, to include GERD and a duodenal ulcer In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 prior 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In March 1972, the Veteran filed a claim for a stomach condition, which the RO denied in a November 1972 rating decision on the basis that his service treatment records did not have any complaints of a gastrointestinal disorder in service. The decision also noted that the Veteran could not be granted service connection on a presumptive basis because he did not have a chronic ulcer disease. The Veteran was notified of this decision and of his appeal rights in a November 1972 letter but did not perfect a timely appeal. Moreover, no evidence pertaining to the Veteran's claim was associated with the file or generated by VA within one year of the RO's decision. As a result, the decision became final. In November 2012, the Veteran filed a claim for acid reflux which the RO denied in November 2013. Relevant evidence at the time of the RO's November 1972 denial included the Veteran's service treatment records and VA treatment records. The evidence received since the November 1972 denial includes a June 2019 private medical opinion linking the Veteran's acid reflux to his military service. The evidence obtained since the last final denial is new and material because it bears directly on the nexus element and provides the Veteran an avenue to establish service connection for his stomach condition, to include GERD. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Accordingly, the claim for entitlement to service connection for a stomach condition, to include GERD, is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, mood disorder, and depression The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, mood disorder, and depression as a result of his service. Specifically, the Veteran claims that while serving as a pilot, "he experienced rocket and mortar attacks in the field." See November 2013 VA PTSD examination. The Board notes that the Veteran's DD-214 indicates that he received various combat related medals or ribbons, to include a Purple Heart. The evidence of record also includes VA treatment records from May 2012 showing that the Veteran was diagnosed with mood disorder. Private treatment records from September 2014 show that the Veteran was diagnosed with depression. The Veteran was provided with a VA PTSD examination in November 2013 where the examiner found that he did not meet the diagnostic criteria for PTSD under the DSM-IV criteria. The examiner noted a diagnosis for mood disorder and opined that this was less likely than not due to his service because "there is no evidence of mental health symptoms while the Veteran was active duty in the military; based on interview data and available records, the onset of mental health disturbance occurred after significant psychosocial stressors including loss and legal involvement after 2004." The Board notes that VA treatment records associated with the file after the examination (January 2019) show a diagnosis for PTSD. Additionally, a July 2019 letter written by a VA social worker who provided psychotherapy to the Veteran noted that he has met the criteria for PTSD "and it is reasonable from the history he provided to assume that he has been living with it ever since he served in Vietnam as a helicopter pilot." Although the July 2019 VA opinion links the Veteran's PTSD to his service, it does not appear that the social worker had access to the Veteran's claims file and the opinion does not address the significant psychosocial stressors noted by the VA examiner. As a result, the Board finds that this issue must be remanded for an addendum medical opinion 2. Entitlement to service connection for a stomach condition, to include GERD, including as secondary to diabetes and an acquired psychiatric disorder The Veteran contends that he has a stomach condition, to include GERD, that is due to his service. He claims that he has had symptoms of a gastrointestinal issue since his time in service. See June 2019 Board hearing transcript. In the alternative, the Veteran claims that his stomach condition is secondary to his diabetes and acquired psychiatric disorder. The evidence of record includes VA treatment records from March 1972 indicating that the Veteran was suspected to have duodenal ulcer disease. However, a September 1972 VA examination showed that the Veteran was diagnosed with chronic duodenitis and extrinsic pressure defect of the superior duodenal bulb. VA treatment records from February 2010 show that the Veteran was diagnosed with reflux, gastroesophageal. The Veteran was provided with a VA esophageal conditions examination in October 2013 where he was noted to have a diagnosis for GERD. The examiner opined that the Veteran's GERD was less likely than not due to his service because although he "was treated for duodenal ulcer shortly after his release from service," "he had a recurrence in about 2000 but was asymptomatic in the interim." The examiner also found that the Veteran's GERD was less likely than not proximately due to his diabetes because his GERD diagnosis predated his diabetes. As the Veteran has reported continuing symptoms since his time in service and the October 2013 VA examiner partially based his negative nexus opinion on the lack of symptoms until 2000, the Board finds that an addendum opinion must be obtained. The opinion should also address whether the Veteran had a confirmed diagnosis for a duodenal ulcer in September 1972 or at any time within one year of separation from service in July 1971. Additionally, the Board notes that an opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). As such, upon remand, the medical opinion should also address aggravation. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). The Board acknowledges the June 2019 private medical opinion indicating that the Veteran's acid reflux began in the military and continued "throughout his entire life." However, as the opinion is not supported by any rationale, it cannot be used as a basis to grant service connection in this case. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Portland and Orem VA medical centers. 2. Contact the Veteran and request that he provide sufficient information and, if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 3. Obtain an addendum opinion from an appropriate clinician other than the examiner that conducted the November 2013 VA examination regarding the following: a) Is it at least as likely as not (50 percent probability or greater) that any diagnosed psychiatric disorder, to include PTSD, mood disorder, or depression, is at least as likely as not related to an in-service injury, event, or disease? The examiner must consider the following: i) January 2019 VA treatment records showing a diagnosis for PTSD, and ii) the July 2019 VA letter noting that the Veteran meets the criteria for PTSD and that he has had PTSD since his time in the military. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an addendum opinion from an appropriate clinician regarding the following: a) Is it at least as likely as not (50 percent probability or greater) that any diagnosed stomach condition, to include GERD, is at least as likely as not related to an in-service injury, event, or disease? The examiner must consider the following: i) the June 2019 private medical opinion indicating that the Veteran's acid reflux began in the military and has continued since then, and ii) whether the Veteran had a diagnosis for a duodenal ulcer in September 1972 or at any time within one year from his separation from service in July 1971. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's stomach condition, to include GERD, was caused by his service-connected diabetes? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's stomach condition, to include GERD, was aggravated by his service-connected diabetes? d) If service connection is granted for an acquired psychiatric disorder, is it at least as likely as not (50 percent probability or greater) that the Veteran's stomach condition, to include GERD, was caused by his acquired psychiatric disorder? e) If service connection is granted for an acquired psychiatric disorder, is it at least as likely as not (50 percent probability or greater) that the Veteran's stomach condition, to include GERD, was aggravated by his acquired psychiatric disorder? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. (Continued on the next page) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.