Citation Nr: 21064704 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-25 025 DATE: October 21, 2021 ORDER New and material evidence having been submitted, the claim to reopen the issue of entitlement to service connection for irritable bowel syndrome (IBS) is granted. REMANDED Entitlement to service connection for IBS is remanded. FINDING OF FACT Since the December 2008 final regional office (hereinafter agency or original jurisdiction or AOJ) denial, the Veteran has provided previously unsubmitted evidence which, if true, has a reasonable possibility of substantiating his claim. CONCLUSION OF LAW Following the prior final denial of December 2008, new and material evidence has been presented to reopen the claim of entitlement to service connection for IBS. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from March 1989 to March 1993. He also had a second period of active service in the Navy from February 2001 to February 2003 that has been characterized as dishonorable for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision issued by an AOJ of the Department of Veterans Affairs (VA). The Board previously denied the Veteran's claim to reopen in a March 2020 decision. He subsequently appealed to the United States Court of Appeals for Veterans Claims. In an April 2021 Joint Motion for Remand (JMR), the parties agreed that the Board did not provide proper reasons and bases for disregarding lay and medical reports of IBS symptoms and failed to discuss whether the Veteran's first period of service qualified him as a "Persian Gulf veteran." The JMR noted that 10 other issues were not on appeal as they were remanded to the AOJ by the March 2020 decision and agreed to dismiss the issues of entitlement to service connection for osteoporosis and earlier effective dates for hearing loss and tinnitus. The March 2020 decision was vacated with regard to IBS and the matter has been returned to the Board for action consistent with the stipulations of the JMR. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for IBS The Veteran's claim of entitlement to service connection for IBS was initially denied in a December 2008 AOJ rating decision. If a claim of entitlement to service connection is denied in an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Veteran did not appeal this decision or submit new and material evidence within one year, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for raising a reasonable possibility of substantiating the claim is a low one. Id. at 117. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In January 2015, the Veteran filed a claim to reopen the issue of entitlement to service connection for IBS as due to "Gulf War exposures." In December 2016, he reinitiated medical care with VA, complaining of a litany of symptoms which included "constipated very painful problem," and "gastroenterologist." The treating VA clinician noted he had previously been prescribed medication for gastroesophageal reflux disease (GERD) and restarted this prescription. A February 2017 private treatment record includes "IBS" on the Veteran's problem list, while VA treatment records from less than a week later indicate the Veteran denied a history of gastrointestinal disease, abdominal pain, heartburn, reflux, dysphagia, constipation, or diarrhea. During a November 2018 AOJ decision review officer hearing, the Veteran admitted he had never been diagnosed with IBS but stated he had gone to sick call for IBS symptoms early in his first period of active service. He also reported receiving treatment for IBS from the time he got out of service until the present day. During a July 2020 VA esophageal conditions examination, the Veteran related symptoms including severe stomach pain and vomiting as well as awakening in the night, chest pain, throat constriction, with throat and neck pain and swelling. He was diagnosed with GERD. IBS is defined as a chronic functional disorder of the colon that is characterized especially by constipation or diarrhea, cramping abdominal pain, and the passage of mucus in the stool. See https://www.merriam-webster.com/dictionary/irritable %bowel%20syndrome. As the Board must assume the credibility of any new evidence, it finds that the information received since the December 2008 final decision includes additional support for a possible IBS onset during the Veteran's first period of active service. This evidence is new as it was not available to the AOJ when the prior final denial was issued. It is relevant as relates to an unestablished fact needed to establish service connection, i.e., a link between the Veteran's claimed IBS symptoms and service. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of entitlement to service connection for IBS have been met. REASONS FOR REMAND 1. Entitlement to service connection for IBS is remanded. As noted above, the Veteran stated he reported to sick call for IBS symptoms, and had received continuous treatment since service. The Board notes that there is no apparent treatment for IBS symptoms in his service treatment records, but the Board acknowledges all events in service are not recorded. Nonetheless, the Veteran's current recollections are not consistent with his reports of medical history in December 2000, and May 2001 wherein the Veteran denied a history of frequent indigestion, or stomach or intestinal trouble. Nonetheless, the Veteran's separation document for his first period of service indicates active service in the Southwest Asia theater of operations. Presumptive service connection may be awarded for medically unexplained chronic multi-symptom illnesses including functional gastrointestinal disorders (FGID). 38 C.F.R. § 3.317(a). An FGID is defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. 38 C.F.R. § 3.317(a)(2)(i)(3). Note. Specific FGIDs include IBS and functional constipation. Id. A VA medical examination is required when there is competent evidence of a current disability, evidence of an in-service event, injury or disease, indication that a current disability may be service related (to include secondary service connection), and there is otherwise insufficient medical evidence to make a decision. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id. at 83. In this case, the Board finds that the "low bar" of McLendon has been cleared, and that additional medical examination and opinion evidence is required. The matters are REMANDED for the following action: 1. Associate with the claims file all updated VA and relevant private treatment records. 2. Schedule the Veteran for an examination to address the nature and etiology of the claimed IBS disability. The examiner is to be provided access to the electronic record. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner shall provide an opinion as to the following: (a.) Whether the Veteran manifests irritable bowel syndrome (IBS) or a functional gastrointestinal disorder (FGID) which is defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract? (b.) If the Veteran manifests a gastrointestinal disability other than IBS which is explained by structural, endoscopic, laboratory, or other objective signs of injury, whether it is at least as likely as not (50 percent or greater probability) that such disorder(s) began in or is related to his active service, to include in the Persian Gulf? OR is due to an undiagnosed illness; OR is due to a medically unexplained chronic multisystem illness. In providing the requested opinion(s) the examiner is asked to discuss the February 2016 private treatment records in which IBS is listed under "illness" along with GERD. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.