Citation Nr: 21065442 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-02 338 DATE: October 26, 2021 ORDER New and material evidence having been received, the claim for service connection for peptic ulcer disease is reopened. Service connection for a gastrointestinal disorder, to include as diagnosed as peptic ulcer disease, is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A claim for service connection for peptic ulcer disease was denied in an August 1989 rating decision. The Veteran was informed of his appellate rights but did not file a timely Notice of Disagreement and the RO did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 2. Evidence received since the August 1989 rating decision relates to unestablished facts necessary to substantiate the claim for service connection for peptic ulcer disease. 3. The evidence is at least in equipoise that the Veteran's current peptic ulcer disease onset in or was related to active duty. CONCLUSIONS OF LAW 1. The August 1989 rating decision that denied the claim for service connection for peptic ulcer disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. New and material evidence has been received, and the claim for service connection for peptic ulcer disease is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for gastrointestinal disorder, to include as diagnosed as peptic ulcer disease, are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in January 2021 and a transcript of that hearing has been associated with the claims file. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. 1. New and material evidence having been received, the claim for service connection for peptic ulcer disease is reopened In an August 1989 rating decision, the RO denied the Veteran's claim for a "duodenal ulcer" because it found it was that the condition was not related to gastrointestinal condition noted in active service. The Veteran did not timely file a Notice of Disagreement in the matter and new and material evidence was not actually or constructively received within the one-year appeal period. Therefore, the August 1989 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the August 1989 rating decision includes a January 2020 VA disability benefits questionnaire (DBQ) that shows the examiner determined that the Veteran's peptic ulcer disease was at least as likely as not related to active service. This evidence is new as it was not before adjudicators when the Veteran's claim was last denied in the August 1989 rating decision, and it is not cumulative or redundant of the evidence of record at the time of that decision. The evidence is material in that it indicates that the Veteran has a current diagnosed of peptic ulcer disease that is related to active service. Thus, it relates to an unestablished fact necessary to substantiate the claim for service connection for peptic ulcer disease and raises a reasonable possibility of substantiating the claim. Accordingly, the petition to reopen is granted. Service Connection 2. Entitlement to service connection for peptic ulcer disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability;(2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records show that the Veteran was first treated in service for diarrhea, abdominal cramps, and vomiting in May 1969. As such, the competent evidence supports and in-service event/injury of peptic ulcer symptoms. After service, a January 2020 VA disability benefits questionnaire (DBQ) shows that the examiner reported the March 1969 service treatment record showing treatment for vomiting, diarrhea, and abdominal cramps. The examiner also noted treatment records from 1971 indicating a vagotomy and hemigastrectomy surgery. The examiner noted the Veteran's self-reports of stomach aches while in service and continuing symptoms of stomach aches since separation from service. The examiner opined that it was at least as likely as not that the current diagnosed peptic ulcer disease onset during active service. The examiner reported that based on the Veteran's reported history, service treatment records, post-service treatment records, showed an in-service treatment for abdominal pain, post-service treatment for abdominal pain, and current diagnosis of peptic ulcer disease, and that the condition was related to active service. After reviewing the relevant evidence, the Board finds that the competent evidence, such as the January 2020 VA examination report, shows that the current diagnosed peptic ulcer disease onset during active service. Accordingly, service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran submitted a claim for entitlement to service connection for a right knee disability in November 2014. A March 2015 rating decision denied service connection for the right knee due to lack of evidence of current disability, but new and material evidence was submitted within one year in the form of a VA treatment record showing knee pain and local cortisone. Importantly, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New and material evidence is defined in 38 C.F.R. § 3.156(a). The RO then denied service connection in an August 2015 rating decision. The Veteran again submitted relevant evidence within one year of the August 2015 rating decision, but a treatment record received later in August 2015 show chondrocalcinosis. The RO denied service connection in October 2015 rating decision and the Veteran again submitted relevant evidence within one year via a private treatment record, received in November 2015 indicating chronic right knee pain since 1970. As such, this decision remained pending until an October 2017 rating decision in which the RO denied the Veteran's claim. The Veteran then filed a timely Notice of Disagreement, and after a statement of the case (SOC) was issues, the Veteran filed a VA form 9. When evidence is received within the appeal period of a rating decision, the decision does not become final until a determination is made as to whether such evidence is new and material. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (stating that because VA failed to readjudicate a claim in light of new and material evidence received during the appellate period, the claim remained pending despite an intervening adjudication); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per section 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). In this case, VA made no determination as to whether the evidence submitted within one year after the March 2015 was new and material, so the March 2015 rating decision remained pending and did not become final until the October 2017 rating decision that is now on appeal before the Board. As a result, the claim filed in November 2014 remains pendingnow in appellate status before the Board. The Board finds that a remand is necessary to obtain a VA examination before a final adjudication can be entered. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran's service treatment records shows that he was treated for a twisted right knee in January 1969. An August 2015 VA treatment record shows that the Veteran was diagnosed by x-ray with right knee chondrocalcinosis. Additionally, the Veteran has asserted that he has experienced right knee pain since separation from service in a November 2015 private treatment record. Based on this, the Board finds that the McLendon elements are met and a remand for a VA examination and opinion is warranted. 2. Entitlement to service connection for PTSD The Veteran contends that he has PTSD due to his active service. Specifically, he has testified and submitted statements describing being exposed to rocket fire during the Tet Offensive, while his ship helped bring Marine's off the shore. He has also reported that he was in the engine rooms and did not know what was happening. Service connection for PTSD requires a medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). If a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). A February 2015 VA Initial Posttraumatic Stress Disorder DBQ, shows that the Veteran was not diagnosed with any mental disorder conforming to the DSM-5 criteria. A March 2019 private PTSD DBQ shows that the examiner opined that it was as likely as not that PTSD was related to his active service experience, to include in Vietnam. A January 2021 letter from a private licensed mental health counselor reported that the Veteran had been participating in treatment for PTSD. The Board finds that a remand is necessary for an additional VA examination as since the February 2015 VA examination that found no diagnosis of any mental conditions, the Veteran has since been diagnosed with PTSD by a non-VA clinician, a psychotherapist. As the Veteran's stressor is based on the fear of hostile forces a VA psychiatrist or psychologist must confirm that the fear of hostile military activity while in Republic of Vietnam is adequate to support a diagnosis of PTSD. See 38 C.F.R. § 3.304(f)(3) (2020) (stating that if stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity then a VA psychiatrist or psychologist need to be the one to confirm the claimed stressor is adequate to support a diagnosis of PTSD). Thus, a remand is necessary to obtain a VA examination to afford a VA psychiatrist or psychologist to assess the nature and etiology of the Veteran's PTSD and any other diagnosed acquired psychiatric disorders. These matters are REMANDED for the following actions: 1. Provide the Veteran with an appropriate examination to determine the etiology of his right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (approximately 50 percent or greater probability) that the right knee disability---had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran's assertions of right knee pain since separation from service and must also specifically address the twisted right knee injury document in the Veteran's service treatment records. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran an appropriate VA examination with a VA or contracted psychiatrist or psychologist to determine the nature, extent, and etiology of any diagnosed psychiatric disorder. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should provide opinions on the following. A) Identify all current psychiatric disorders. The presence or absence of PTSD should be specifically discussed. See 2/18/2019 21-0781; 1/8/2021 Hearing Transcript, at 4-8 (describing the Veteran's claimed in-service stressor events). B) If PTSD is diagnosed, then opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is related or attributable to any incident of the Veteran's military service, to include the fear of hostile military or terrorist activity during active service? C) The examiner is asked to specifically address the March 2019 and January 2021 private diagnosis of PTSD. D) For any psychiatric diagnosis other than PTSD, opine as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder other than PTSD is related to the Veteran's active service, to include service? (Continued on the next page) The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.