Citation Nr: A21017406 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 210831-184758 DATE: October 27, 2021 ORDER New and relevant evidence having been received, the application to readjudicate the claim of entitlement to service connection for duodenal ulcer is granted. REMANDED Entitlement to service connection for duodenal ulcer with hemorrhage is remanded. FINDING OF FACT New evidence was received after the March 1954 rating decision that is relevant to the issue of service connection for duodenal ulcer. CONCLUSION OF LAW The criteria to readjudicate the previously denied claim for service connection for duodenal ulcer have been met. 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1952 to November 1953. He is the recipient of a Korean Service Medal with 2 Bronze Service Stars and a United Nations Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for a stomach condition in January 1954, which was denied by the RO in a March 1954 rating decision. The Veteran filed a VA Form 21-526EZ in December 2019 for stomach ulcers/internal bleeding. In November 2020, the Veteran filed a VA Form 20-0995, Supplemental Claim Application for duodenal ulcer with hemorrhage. In April 2021, the RO found new and relevant evidence was provided to readjudicate the claim, however, continued the denial of service connection. In August 2021, the Veteran filed a VA Form 10182, Notice of Disagreement. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). New and Relevant Evidence A claimant may continuously pursue a claim or issue by filing a supplemental claim following notice of a decision by the agency of original jurisdiction or the Board. 38 C.F.R. § 3.2500(c). Under the AMA, in order to readjudicate a previously disallowed claim, new and relevant evidence must be received. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(d). "New evidence" is evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). The question in this case is whether VA received new and relevant evidence after the March 1954 rating decision. Evidentiary submissions secured since the March 1954 rating decision include, among other things, an April 2021 VA examination and medical opinion. The examiner opined that the Veteran's duodenal ulcer preexisted service. This opinion is new as it was not previously part of the actual record before agency adjudicators. This opinion is relevant as it tends to disprove a matter at issue. Accordingly, as new and relevant evidence has been received, the application to readjudicate the previously denied claim is granted. REASONS FOR REMAND Entitlement to service connection for duodenal ulcer with hemorrhage is remanded. The Veteran contends that his intestinal condition is a direct result of military service. See Statement in Support, November 2020. The Board finds a remand is required to correct a pre-decisional duty to assist error by obtaining an adequate VA medical opinion and outstanding VA treatment records. Under AMA, the Board has the duty to remand issues when necessary to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802(a). The Board notes initially that, when determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. Here, a review of the Veteran's pre-induction examination in December 1951 shows a history of gastro-intestinal complaints manifested by recurrent attacks of epigastric distress, relieved by food and Alkali. A letter was noted from Dr. I.S. from Brooklyn, NY that stated he has found evidence of duodenitis on x-ray examination. A history of bleeding from the rectum was also noted. A medical record two months following discharge from service noted a 25-day hospitalization at Brooklyn VAH from January 4, 1954 to January 29, 1954 for chief complaints of black stools and epigastric gnawing pains intermittent for many years. The present illness was noted to go back 10 years, at which time the Veteran was kicked in the stomach during a fight. From the hospitalization, the final diagnosis was duodenal ulcer with hemorrhage, treated, and improved. A medical examination and opinion was provided in April 2021. The examiner found that the Veteran's duodenal ulcer, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression in service. The rationale provided was that there was evidence to indicate that the Veteran continued to suffer from the disorder during service, which was typical of the condition. However, the progression was not beyond normal progression for this disorder. There was no evidence of permanent aggravation beyond normal progression identified. The examiner, however, did not provide reasons for this opinion, or provide any explanation as to why the progression was not beyond normal progression for this disorder. In Horn v. Shinseki, the Court held that "it is on VA to establish by clear and unmistakable evidence that...any increase [in disability] was due to the natural progress of the disease" and "VA may not rest on the notion that the record contains insufficient evidence of aggravation." Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, given the inadequacies in the April 2021 opinion, remand for a supplemental opinion is needed in this case. Additionally, the Veteran indicated outstanding service treatment records as well as medical records post-service from Brooklyn VAMC and Broward VAOPC in Sunrise, Florida. See Informal Hearing Presentation, September 2021. The Veteran requested the RO obtain these records in January 2021 and submitted a VA 21-4138 with the necessary information. In order to correct this pre-decisional duty to assist error, a remand is warranted. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. The matter is REMANDED for the following actions: 1. Request any outstanding service treatment records and medical records post service, particularly from Broward VAOPC and Brooklyn VAMC. 2. After securing all outstanding records, obtain a supplemental medical opinion from a medical professional with the appropriate expertise with regard to the Veteran's claim of entitlement to service connection for a duodenal ulcer. The electronic claims file, including a copy of this Remand, must be made available to and reviewed by the clinician. (a.) The examiner must opine whether any currently or previously diagnosed duodenal ulcer condition clearly and unmistakably preexisted the Veteran's military service. If a currently or previously diagnosed duodenal ulcer condition is found to have clearly and unmistakably preexisted military service, the examiner must state the specific evidence upon which the finding was made. The medical professional is informed that "clearly and unmistakably" is an onerous burden which requires that the evidence be obvious, manifest, and undebatable. (b.) If a diagnosed duodenal ulcer condition is found to have clearly and unmistakably preexisted military service, then the examiner must provide an opinion as to whether the Veteran's military service clearly and unmistakably did not aggravate the preexisting condition beyond the normal progression of the disease. If the examiner finds that the Veteran's military service clearly and unmistakably did not aggravate a preexisting condition beyond the normal progression of the disease, the examiner must state the specific evidence upon which the finding is based. (c.) For any ulcer condition that did not clearly and unmistakably exist prior to active duty and was not aggravated by active duty, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the condition is related to his military service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.