Citation Nr: 21067240 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-15 334 DATE: November 3, 2021 ORDER The appeal as to the timeliness of the substantive appeal is granted. Entitlement to service connection for a gastrointestinal disability, to include residuals of partial gastrectomy with vagotomy, based on substitution of the Appellant as the claimant, is granted. Entitlement to service connection for anemia, based on substitution of the Appellant as the claimant, is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), based on substitution of the Appellant as the claimant, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the RO issued a Statement of the Case (SOC) on January 12, 2015, which denied service connection for a gastrointestinal disability, anemia, and gastroesophageal reflux disease (GERD). 2. The Veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, on February 9, 2015, which was within 60 days of the issuance of the SOC. 3. The evidence is at least in equipoise as to whether the Veteran's gastrointestinal disability was related to his active duty service. 4. The evidence is at least in equipoise as to whether the Veteran's anemia was caused by his gastrointestinal disability. CONCLUSIONS OF LAW 1. A timely appeal was received following the January 12, 2015 SOC, with respect to the claims of service connection for a gastrointestinal disability, anemia, and GERD. 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.103, 3.156, 19.32, 20.200, 20.202, 20.300, 20.302, 20.303. 2. The criteria for service connection for a gastrointestinal disability, including residuals of partial gastrectomy with vagotomy, based on substitution of the Appellant as the claimant, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.1010. 3. The criteria for service connection for anemia, based on substitution of the Appellant as the claimant, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1968 to June 1972, to include service in the Republic of Vietnam. The Veteran died in October 2018. The Appellant is his surviving spouse. This case is on appeal from a February 2015 decision by a Department of Veterans Affairs (VA) Regional Office (RO), in which the RO found that the Veteran did not submit a timely substantive appeal (VA Form 9) for the issues of service connection for a gastrointestinal disability, anemia, and gastroesophageal reflux disease (GERD). In December 2018, the RO granted substitution for the Appellant as the claimant. In an October 2019 decision, the Board found that the Veteran's VA Form 9 was untimely. The Appellant filed a Motion for Reconsideration in February 2020. In May 2020, she was informed that her motion had been denied. The Appellant appealed the Board's finding regarding the timeliness of the Form 9 to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's October 2019 decision and remanding the issue for readjudication. 1. Whether the Veteran filed a timely substantive appeal with respect to the claims of service connection for a gastrointestinal disability, anemia, and gastroesophageal reflux disease (GERD) The Board's authority to review an adverse agency of original jurisdiction (AOJ) decision is initiated upon a claimant's submission of a Notice of Disagreement (NOD) and completed by a substantive appeal after a Statement of the Case (SOC) has been furnished. 38 U.S.C. §§ 7105(a); 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9 (Appeal to Board of Veterans' Appeals) or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant, or within a one-year period from the date the decision being appealed was mailed, whichever comes later. 38 C.F.R. § 20.302(b)(1). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The AOJ may close the case for failure to respond after receipt of the SOC, but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 19.32, 20.101(d). The filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A "presumption of regularity 'supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.' Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926))." Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by "clear evidence" that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. The threshold issue in this case is whether the Veteran's substantive appeal was received within 60 days of the issuance of the SOC for the issues of entitlement to service connection for a gastrointestinal disability, anemia, and GERD. At the heart of this issue lies a determination of when the SOC was issued. In January 2013, the RO issued a rating decision denying service connection for a gastrointestinal disorder, anemia, GERD, and scars. The Veteran submitted a NOD in February 2013 with regard to the gastrointestinal disability, anemia, and GERD claims. In correspondence received in March 2013, he requested a de novo review of his claims. In a May 2014 rating decision, the RO denied service connection for type 2 diabetes mellitus and bilateral lower extremity peripheral neuropathy. In July 2014, the Veteran submitted an NOD with regard to those claims. An August 2014 report of general information shows that the Veteran spoke to a decision review officer (DRO) regarding the status of his appeals in regard to the January 2013 and May 2014 rating decisions. The DRO informed the Veteran that he needed to elect whether he wanted a de novo or traditional appeal for the claims addressed in the May 2014 rating decision. The Veteran elected de novo review, as he had also elected de novo review with regard to the January 2013 rating decision. The claims file indicates that an SOC was issued for the issues of service connection for peripheral neuropathy of the bilateral lower extremities, type 2 diabetes mellitus, gastrointestinal disability, GERD, and anemia. The notification letter attached to the SOC is dated August 12, 2014; however, the pages of the actual SOC are all dated January 12, 2015. In December 2014, the Veteran submitted correspondence inquiring about the status of his appeals. In the letter, he stated that he had not received any correspondence regarding his appeal since he submitted an NOD in February 2013. A January 2015 report of general information indicates that a VA representative contacted the Veteran to discuss his appeals. The Veteran stated that he had received an SOC and mailed a Form 9 within days of receiving the SOC. He also stated that he did not send his substantive appeal by certified mail. The representative indicated that a search would be conducted to locate a Form 9. A February 2015 report of general information states that no such VA Form 9 could be located. In correspondence dated in February 2015, the Veteran indicated that, prior to being contacted in January 2015, he had been under the impression that his appeals were active and under review. The Veteran filed a substantive appeal for the above issues in February 2015, within 60 days from January 12, 2015 but more than 60 days after August 12, 2014. After a review of the evidence, the Board finds that the Veteran's VA Form 9 was filed in a timely manner with regard to his claims of service connection for gastrointestinal disability, GERD, and anemia. In reaching this conclusion, the Board finds that the evidence is at least in equipoise as to whether the SOC was issued in January 2015, rather than in August 2014. First, the Board finds that the presumption of regularity is inapplicable to the adjudication of the present issue. Whether an SOC was issued in August 2014 or January 2015 bears no indication as to whether the RO "discharged of [its] official duties," as issuing an SOC in January 2015 would presumably be equally as proper as issuing one four months earlier. Ashley v. Derwinski, 2 Vet. App. at 64. At issue is when the SOC was dispatched, not whether it was dispatched, and the presumption of regularity cannot be relied on to conclude that an SOC was issued in August 2014. See id. Further, to any extent the presumption may apply, there is sufficient evidence to rebut the presumption. The SOC and accompanying notice letter, on their face, are "clear evidence" that proper procedures were not followed. See Parks, 716 F.3d at 584; Butler, 244 F.3d at 1340. In this regard, the mere fact that the notice letter is dated roughly four months earlier than the SOC is indicative of error. The documents were mailed together on the same date, so the date of the notice letter should be, at the earliest, the same date as the SOC. This discrepancy clearly shows that the RO did not follow proper procedures. Therefore, the Board will not presume that the RO sent the SOC to the Veteran in August 2014. As noted in the JMR granted by the Court in May 2021, there is no contemporaneous SOC, mail stamp, or acknowledgement of receipt by the Veteran showing that an SOC was mailed to him in August 2014. Though January and February 2015 reports of general information indicate that the Veteran received the SOC dated in August 2014, it is not clear whether he was confirming that he received an SOC in August 2014 or that he received (in 2015) the August 2014 letter that accompanied the January 2015 SOC. The Veteran's correspondence dated in December 2014 and February 2015 indicate that he had not received any notification regarding his appeals in August 2014. Additionally, as noted above, the SOC itself is dated in January 2015, four months after the date listed in the notification letter. In light of the Board's duty to resolve all reasonable doubt in the claimant's favor, the Board finds that the evidence is at least in equipoise as to whether the SOC was dispatched on January 12, 2015. See Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. The Veteran's VA Form 9 was received on February 9, 2015, within 60 days of the January 2015 SOC. Therefore, the Board finds that a timely substantive appeal was filed, and the appeal is granted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. In adjudicating these claims, the Board must assess the competence and credibility of the claimant. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a gastrointestinal disability, to include residuals of partial gastrectomy with vagotomy, based on substitution of the Appellant as the claimant The Veteran's medical records reveal that he was hospitalized for gastric outlet obstruction in March 1993 and was subsequently treated with partial gastrectomy and vagotomy procedures. Thus, a current disability is established by the evidence. The Appellant asserts that the Veteran's gastrointestinal disability is related to his active duty service. The Veteran underwent a VA examination in August 2012. The examiner confirmed the Veteran's 1993 surgeries and listed associated symptoms of abdominal and/or colic pain, diarrhea, constipation, abdominal distention, anemia, nausea, vomiting, sustained weight loss, and generalized fatigue. He related to the examiner that he sustained a head injury in Vietnam, which resulted in him taking large doses of aspirin for chronic headaches. He told the examiner that he did not seek treatment for the head injury during service because he was the unit medical provider. The examiner opined that the Veteran's gastrointestinal disability was as least as likely as not related to his active duty service. In support of his opinion, the examiner stated that the Veteran's prolonged use of aspirin for chronic headaches, during and after service, likely caused scarring of the duodenum, which led to the gastric outlet obstruction and resultant gastrectomy surgery. In November 2012, another VA medical opinion was issued, wherein the examiner opined that the Veteran's gastrectomy is less likely than not related to his active duty service. In support of this opinion, the examiner stated that the gastric outlet obstruction necessitating the gastrectomy occurred in 1993, well after his active duty service. She also stated that an in-service episode of viral gastritis in March 1969 did not give rise to the gastric outlet obstruction. The Board finds that the evidence is at least in equipoise as to whether the Veteran's gastrointestinal disability is related to his active duty service. In this regard, the August 2012 VA examiner provided a positive nexus opinion, relating his gastrointestinal disability to the large dosages of aspirin he took to treat an in-service head injury. In reaching this conclusion, the Board assigns greater weight to the August 2012 opinion than to the November 2012 opinion. See Owens, 7 Vet. App. at 433. The November 2012 examiner concluded that the Veteran's gastric outlet obstruction was not related to his service because it occurred several years after separation and is not caused by a documented episode of viral gastritis during service. The August 2012 examiner, on the other hand, considered all of the relevant evidence and theories of service connection and provided a well-reasoned rationale for his opinion. Therefore, it is of greater probative value than the November 2012 opinion. The evidence of record establishes that the Veteran had a gastrointestinal disability during the rating period on appeal, that he sustained an in-service head injury and treated it with large amounts of aspirin, and that his claimed disability was caused by his in-service head injury and the aspirin used to treat it. Therefore, the elements of service connection have been met and the claim is granted. 3. Entitlement to service connection for anemia, based on substitution of the Appellant as the claimant Prior to his death, the Veteran also claimed service connection for anemia. A December 2013 private treatment record indicates a diagnosis of severe pernicious anemia. The Appellant asserts that the Veteran's anemia was related to his active duty service, to include as secondary to his gastrointestinal disability. The Veteran's August 2012 VA examination relating to his claim for a gastrointestinal disability indicates that he was anemic. The examiner opined that the Veteran's anemia was at least as likely as not related to his partial gastrectomy. The examiner stated that, due to the Veteran's gastrointestinal procedures, he was unable to properly absorb iron and vitamin B-12, which resulted in moderate-to-severe anemia. The November 2012 examiner also noted the Veteran's anemia as a symptom of his gastrointestinal disability. Based on the above evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's anemia was caused by his gastrointestinal disability. Therefore, service connection is warranted on a secondary incurrence basis. 38 C.F.R. § 3.310. REASONS FOR REMAND Entitlement to service connection for gastroesophageal reflux disease (GERD), based on substitution of the Appellant as the claimant, is remanded. The Veteran underwent a VA examination for his GERD in December 2012. The examination report indicates that the GERD had its onset in 1969, as reported by the Veteran. The examiner opined that the Veteran's GERD is less likely than not related to his partial gastrectomy because, per the Veteran's statements, the GERD manifested prior to his gastrectomy. The December 2012 medical opinion is inadequate for the purpose of adjudicating this issue because the examiner failed to consider several raised theories of service connection. The examiner did not address direct service connection, nor did she opine as to whether the Veteran's GERD was aggravated by his gastrointestinal disability. The Veteran claimed that his GERD was related to his exposure to herbicide agents and/or his service-connected posttraumatic stress disorder (PTSD), and neither of these theories was considered by the examiner. Therefore, a new medical opinion is warranted on remand. Although the examination report lists a GERD onset date in 1969, which would have been during the Veteran's active duty service, there is insufficient evidence for the Board to conclude that he had a GERD diagnosis during service. His treatment records show that he was assessed with viral gastritis in March 1969 and was treated again in January 1970 for nausea and vomiting. The available records do not show a GERD diagnosis during service, and the Veteran's separation examination is negative for any gastrointestinal problems. Therefore, the evidence currently before the Board is insufficient to grant the claim based on an in-service onset, and a medical opinion is needed on the matter. The matter is REMANDED for the following actions: 1. Obtain a medical opinion regarding the etiology of the deceased Veteran's GERD. The entire claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. After a review of the evidence, the examiner should respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was incurred in, or was otherwise related to, his active duty service, to include as caused by his conceded exposure to herbicide agents? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was aggravated (any incremental increase in disability) by his service-connected gastrointestinal disability? (c.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the GERD prior to aggravation? If so, please identify. (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was caused and/or aggravated (any incremental increase in disability) by his service-connected PTSD, to include associated medication? (e.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the GERD prior to aggravation? If so, please identify. (f.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was caused and/or aggravated (any incremental increase in disability) by his service-connected migraines, to include associated medication? (g.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the GERD prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each proffered opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 2. After completion of #1, readjudicate the issue on appeal, to include consideration of the additional evidence obtained since the January 2015 SOC. If the benefits sought on appeal are not granted in full, issue the Appellant and her representative a Supplemental Statement of the Case (SSOC) and provide them an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.