Citation Nr: 21074715 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-34 051A DATE: December 16, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for an ulcerative colitis disability is reopened. Entitlement to service connection for an ulcerative colitis disability is granted. FINDINGS OF FACT 1. An April 2012 rating decision, in pertinent part, denied entitlement to service connection for ulcerative colitis. The Veteran was informed of the Regional Office's (RO's) decision and his appellate rights in a May 2012 letter. No Notice of Disagreement (NOD) or new and material evidence was received within one year of the rating decision and the decision became final. 2. Evidence received since the final April 2012 rating decision denying entitlement to service connection for an ulcerative colitis disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim of service connection for an ulcerative colitis disability. 3. The most probative evidence establishes that the Veteran's ulcerative colitis began in service and it is more likely than not continued to the present day. CONCLUSIONS OF LAW 1. The April 2012 rating decision which denied entitlement to service connection for ulcerative colitis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received with respect to the previously denied claim of entitlement to service connection for an ulcerative colitis disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an ulcerative colitis disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1993 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, accompanied with his attorney and his wife, appeared before the undersigned Veterans' Law Judge at a videoconference hearing in March 2021. A transcript of the hearing is of record. New and Material Evidence As a preliminary matter, the Board notes that the Veteran initially applied for entitlement to service connection for ulcerative colitis in February 2011, which was denied in an April 2012 rating decision. He then filed a statement indicating his intent to file a claim on December 22, 2014. On December 10, 2015, the VA received the Veteran's claim to reopen service connection for ulcerative colitis. A claimant must file a NOD with a determination by the agency of original jurisdiction (AOJ) within one year from the date that that agency mails notice of the determination, otherwise, that determination will become final. 38 C.F.R. § 19.52. Additionally, new and material evidence received prior to the expiration of the appeal period, 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. The record reflects that the Veteran did not submit a NOD nor was new and material evidence received prior to the expiration of the appeal period of the notification, as such, the April 2012 rating decision became final. 38 C.F.R. § 19.52. Under the legacy system, irrespective of whether the RO has reopened a finally adjudicated claim, the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). As such, the Board must first determine whether new and material evidence has been received to reopen the finally adjudicated decision. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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 submitted 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, to include by triggering the Secretary's duty to assist. Id. at 118. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for an ulcerative colitis disability is reopened. The April 2012 rating decision, in pertinent part, denied entitlement to service connection for ulcerative colitis. The April 2012 rating decision essentially noted that based on the September 2011 VA examination, a nexus was not established. In particular, the Board notes that the examiner found that the Veteran's separation examination did not note intestinal or abdominal problems, nor was there a link between acne treatment and ulcerative colitis. However, the examiner could not provide an opinion without resort to speculation as to whether the condition was caused by use of NSAIDs. As such, the April 2012 decision is final and not subject to revision on the same factual basis. Despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision discussed above. Paramount, the Board notes that evidence associated with the claims file since the April 2012 rating decision reflects lay evidence noting that the Veteran had intestinal conditions symptoms starting during service and continuing thereafter, and medical evidence demonstrating a positive association between the use of NSAIDs and ulcerative colitis, including detailed discussion of the delayed onset of severe symptoms as to explain a diagnosis of the condition. This evidence is new, as the evidence of record at the time of the last final decision did not include a favorable indication of a nexus between the current ulcerative colitis disability and the Veteran's active service. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim. Under these circumstances, the Board finds that new and material evidence has been presented. Shade, 24 Vet. App. at 117-18. Accordingly, the Board finds that the Veteran's previously denied claims of service connection for an ulcerative colitis disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be established 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). In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a presumptive basis in cases as evidenced in circumstances and diseases enumerated and explicitly recognized under 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection, a disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Any medical opinion which addresses secondary service connection must include an aggravation opinion. The Board notes that ulcerative colitis is not one of the specifically enumerated chronic diseases for which presumptive service connection can be awarded. 38 C.F.R. § 3.309(a). Nor is it an undiagnosed illness, or medically unexplained illness for compensation for certain disabilities occurring in Persian Gulf veterans. 38 C.F.R. § 3.317. Nonetheless, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. Id. 2. Entitlement to service connection for an ulcerative colitis disability is granted. In reviewing the lay evidence of record, in a February 2017 statement submitted by the Veteran's fellow service member J.P., J.P. stated that he and the Veteran service together on USS Mount Baker from 1993 to 1993 and it deployed in 1994, including to Southwest Asia areas. J.P. stated that they travelled to many countries with unsanitary conditions, and he witnessed the Veteran having stomach problems while deployed which included abdominal pain, excessive gas and frequent bowel movements. J.P. stated that the Veteran's stomach problems were still present when he transferred to another ship and he is aware that they have continued since as they have remained friends. The record is further replete with similar statements from the Veteran's friends and fellow service members also attesting to his symptoms in service and since. At the March 2021 Board hearing, the Veteran testified that he did not have symptoms of ulcerative colitis prior to entering active duty in 1990 and started suffering from some symptoms of ulcerative colitis such as frequent bowel movements, abdominal cramping, diarrheas and incontinence while in service. He was diagnosed in 2008 but he was stubborn about getting treatment prior to that. The Veteran's wife stated that she met the Veteran in 1995, and that between 1997 and 1999, she noticed that the Veteran would frequently use the restroom and was told by his sister that he had some stomach issues. Turning to the medical evidence of record, the September 1992 report of medical examination for enlistment reflects normal findings upon clinical evaluation. The September 1992 report of medical history for enlistment reflects no report of stomach, liver or intestinal trouble. The Veteran's service treatment records (STR) aboard USS Mount Baker and USS Blue Ridge reflect an October 1993 STR reflects the Veteran's treatment for acne. A July 1996 STR reflects the Veteran's complaint of body aches, fatigue, denial of diarrhea or vomiting but complaint of feeling of nausea and hurt when eating. The STRs also reflect the Veteran's knee problems treatment with NSAIDs. The February 1997 report of medical examination for separation reflects a note of right shoulder problems and two small nodules on the skin but otherwise normal findings upon clinical evaluation. The accompanying February 1997 report of medical history reflects no report stomach, liver or intestinal trouble. The unfavorable medical evidence of record are opinions provided by the September 2011 VA general medical examination. At that time, a diagnosis of ulcerative colitis was confirmed. In regard as to whether the condition was directly related to service, the examiner opined that the Veteran's stomach problems in service are less likely than not related to the Veteran's ulcerative colitis. The examiner rationalized that medical examination on separation did not mention any intestinal or abdominal problems whereas the ulcerative colitis condition was diagnosed eleven years after separation from service. In regard as to whether related to the use of prescribed acne medication in service, the examiner opined that the Veteran's acne treatment in service is less likely as not related to the Veteran's ulcerative colitis. The examiner rationalized that topical Retin-A cream is not associated with ulcerative colitis as per up to fate/ Micromedex literature search. In regard as to whether the condition is proximately due to or aggravated by frequent NSAIDs treatment in service, the examiner stated that they could not resolve the issue without resort to speculation. The examiner indicated that careful epidemiologic studies investigating the possible link between NSAIDs and the development of inflammatory bowel disease (IBD) have not been done. The examiner further indicated that, however, a number of reports suggest that NSAIDs increase risk for the development of IBD and may exacerbate underlying IBD, although some patients with IBD appear to be able to tolerate them. On the other hand, the favorable evidence of record reflects that in a March 2021 private opinion provided by a medical doctor, Dr. R.M. opined that the Veteran's ulcerative colitis began in service and it is more likely than not continued to the present day. Dr. R.M. dictated the Veteran's medical history, reviewed the lay evidence of record and cited to medical literature, then rationalized that although he was diagnosed in 2008, because the Veteran was prescribed medication that is known to increase the risk of ulcerative colitis in service, was experiencing the symptoms of ulcerative colitis during service, was prescribed NSAIDs numerous times in service and was ultimately diagnosed with ulcerative colitis, such evidence in light of medical evidence indicates that the course of the symptoms varies and people have long periods of remission, including months or years of good health and no symptoms. Further insight to this opinion is provided and bolstered by in a November 2018 opinion provided by the Veteran's VA doctor, a specialist in gastrointestinal diseases, Dr. P.S. Dr. P.S. attested to the indication that there are multiple epidemiologic studies which demonstrate that ulcerative colitis patients may develop symptoms of the disease but are not diagnosed for many years. Dr. P.S. stated that this is partly due to the waxing and waning natural history of the disease when it is mild, however, when the severity of the disease gradually worsens over years, symptoms finally become severe enough that colonoscopy is performed, and the diagnosis is made. After a review of the totality of the evidence, the Board affords the March 2021 private opinion significant probative weight as the examiner provided a conclusion connected to supporting data and a reasoned medical explanation connected the desmoplastic fibroblastoma to exposure to herbicidal agents. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Based on the credible lay statements, and the medical history of record, such evidence is clear and consistent with contemporaneous lay and medical evidence. Thus, the foundation of the opinion is credible. Next, Dr. R.M. linked the disease to the Veteran's increased risk of ulcerative colitis with the prescribed medication. This was even bolstered prior to being rendered as seen in the November 2018 VA doctor attestation. On the other hand, the only contradictory evidence of record, is not contradictory, at all, as the September 2011 VA examiner failed to provide an opinion of whether the Veteran's ulcerative colitis was associated with NSAIDs treatment in service. In fact, the September 2011 examiner indications also serve to bolster Dr. R.M.'s favorable opinion. Illustratively, the September 2011 examiners statement that a number of reports suggest that NSAIDs increase risk for the development of IBD and may exacerbate underlying IBD, although some patients with IBD appear to be able to tolerate them, is in accordance with Dr. R.M.'s and Dr. P.S.'s research findings. There is no existing medical evidence in the record to contradict such findings and the Board has no basis to contradict the conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, the Board will only discuss the Veteran's foot condition associated with gout. Thus, resolving all doubt in the Veteran's favor, the Board finds a link between the Veteran's ulcerative colitis and service has been shown. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Therefore, service connection for the condition is warranted and the claim is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.