Citation Nr: 21074741 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-36 385 DATE: December 16, 2021 ORDER New and material evidence having been received, a claim of entitlement to service connection for a stomach condition (claimed as irritable bowel syndrome (IBS)), not to include gastrointestinal reflux disease (GERD), to include as secondary to service-connected disabilities, is considered reopened. REMANDED The claim of entitlement to service connection for a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities, is remanded. The claim of entitlement to service connection for a right toe condition, to include as secondary to service-connected disabilities, is remanded. The claim of entitlement to service connection for a left foot condition, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. An April 2007 rating decision denied the claim of entitlement for service connection for a stomach condition; the Veteran did not appeal the decision and it became final. 2. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a stomach condition (claimed as IBS), not to include GERD. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied the claim of entitlement to service connection for a stomach condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for a stomach condition (claimed as IBS), not to include GERD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Air Force from January 1987 to March 1990. These matters are before the Board of Veteran's Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right toe condition, a left foot condition, and denied reopening the Veteran's claim for stomach problems to include as secondary to service-connected disabilities. In October 2021, the Veteran testified in a virtual hearing in front of the undersigned Veterans' Law Judge. This decision is being issued prior to the association of a transcript with the claims file. The Veteran is not prejudiced by this action as no final or adverse action is being taken at this time. The Board notes that the Veteran's appeal also contained a service connection claim for an anxiety disorder, which was granted in a January 2020 rating decision. That award constitutes a full grant of the disability sought, and that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). The Board notes that the Veteran's attorney withdrew in March 2019. In a November 2021 rating decision, the AOJ granted service connection for GERD on a secondary basis. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized the Veteran's claim as a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities. Petition to reopen the claim of entitlement to service connection for a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities The Veteran contends that he has submitted new and material evidence for a claim for service connection for a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities. VA is required to reopen a claim that has been disallowed when new and material evidence is presented or secured, as provided in 38 U.S.C. § 5108. Reopening a claim for service connection which has been previously and finally denied requires that new and material evidence be presented or secured since the final last denial of the claim. Id. See also Evans v. Brown, 9 Vet. App. 273 (1996); Graves v. Brown, 8 Vet. App. 524 (1996). "New evidence," means existing evidence not previously submitted to the VA. "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 repetitive of the evidence of record at the time of the last prior final denial of the claim which is being sought to be reopened and must raise a reasonable possibility of substantiating the clam. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In the case Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeal for Veterans Claims (Court) held that the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim then reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The Court also held that the law of new and material evidence should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran received a rating decision in April 2007, which denied his claim of service connection for stomach issues by finding no evidence of a disability during service, and no evidence of a connection between the Veteran's stomach problems and his service-connected right knee disability. He did not file an appeal and no new and material evidence was submitted to the VA within the applicable appeal period. Therefore, the April 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a new claim for service connection for a stomach condition in May 2013, and the claim was denied in a July 2014 rating decision. In reviewing the July 2014 rating decision, the RO declined to reopen the Veteran's claim of service connection for a stomach issue. However, RO decisions are not binding on the Board, and consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence of record in April 2007 included the Veteran's service treatment records, which show treatment for acute gastroenteritis and a diagnosis of irritable bowels. Evidence submitted and obtained since the April 2007 rating decision includes VA treatment records, VA examinations for esophageal conditions, and lay statements from the Veteran. The VA treatment records note stomach issues and the Veteran was diagnosed with chronic diarrhea in March 2017. Additionally, private treatment records noted a diagnosis of IBS in December 2008, August 2010, and May 2011, along with statements from the Veteran that medications for his service-connected disabilities caused his stomach issues to increase. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record in April 2007, and the evidence is material because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. Specifically, the evidence addresses whether the Veteran's stomach issues are related to his active-duty service and/or secondary to a service-connected disability. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). As the credibility of new evidence is generally presumed, the Veteran's claim for entitlement to service connection for stomach problems is reopened. Justus, 3 Vet. App. at 512-513. REASONS FOR REMAND Entitlement to service connection for a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for a stomach condition (claimed as IBS), not to include GERD, to include as secondary to service-connected disabilities. The Veteran contends that he was treated for a stomach condition in service, he takes medications for his stomach, his right knee, and psychiatric disorder that make him feel nauseated or worsen his stomach condition. The Veteran received a VA examination in May 2017. The examiner noted the Veteran's diagnosis of IBS in service. He explained that IBS is a "diagnosis of exclusion" and should only be considered after other conditions have been ruled out. He found the in-service IBS diagnosis to be unestablished because there was no indication that testing for other conditions had been performed. Similarly, the examiner noted that adequate post-service testing had not been performed. The examiner then concluded that the Veteran did not have a diagnosis of IBS linked to service. The examiner did not comment on the in-service complaints of diarrhea or the in-service treatment for acute gastroenteritis, although he did note that current private treatment records contained a diagnosis of chronic diarrhea. The Board finds the examiner's opinion to be inadequate for VA purposes because the examiner did not address the Veteran's private treatment records that include a diagnosis of IBS. In addition, the examiner did not address the Veteran's in-service complaints of diarrhea and acute gastroenteritis. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Upon remand the Board finds the Veteran is entitled to a competent VA examination that considers the Veteran's claims for both direct and secondary service connection for any currently diagnosed stomach condition other than GERD. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Entitlement to service connection for a right toe condition, to include as secondary to service-connected disabilities Entitlement to service connection for a left foot condition, to include as secondary to service-connected disabilities The Veteran contends that he is entitled to service connection for a right toe and a left foot condition, to include as secondary to his service-connected disabilities. The Board notes that the Veteran was diagnosed upon entrance to service with bilateral flat feet and a pronated right great toe. The Veteran reports pain and issues with his left foot and right toe, and alleges they are due to his service-connected disabilities. VA did not provide a VA examination for either condition, as such there is insufficient competent medical evidence on file for VA to decide the claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4)(i). Additionally, the Veteran has indicated in the hearing held October 2021 that there are relevant private treatment records not associated with the claims file. Upon remand the Veteran should be provided the opportunity to identify and/or provide private treatment records and submit to a VA examination that addresses both direct and secondary service connection for each of the Veteran's claims. These matters are REMANDED for the following actions: 1. Identify and obtain any relevant private treatment records for the Veteran's left foot and right great toe that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing. The Veteran should also be offered the option to provide any such record himself. 2. Schedule an examination with a different examiner than the one who provided the May 2017 examination regarding the etiology of the Veteran's claimed stomach condition. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Identify any and all stomach conditions, other than GERD, that the Veteran currently suffers from. (b.) For each identified condition, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability manifested during, or as a result of, active military service. Please address the in-service diagnoses of irritable bowels (March 1988) and acute gastroenteritis (July 1988); the in-service complaints of diarrhea (July 1988 and November 1988; the post-service diagnoses of IBS in December 2008, August 2010, and May 2011; and the post-service diagnosis of chronic diarrhea in March 2017. (c) For each identified condition, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability was either (1) caused by, or (2) aggravated by, a service-connected disability. The term "aggravation" in this context refers to any increase in disability. A separate opinion and rationale should be provided for causation and aggravation. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If an opinion sought cannot be provided without resort to mere speculation, the clinician should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (the examiner does not have the requisite knowledge or training). 3. After remand directive #1 is complete, schedule the Veteran for a VA examination with an appropriate clinician regarding his claimed left foot condition and right toe condition. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Identify all currently diagnosed left foot and right toe disorders. (b.) Is it at least as likely as not (50 percent or higher degree of probability) that the preexisting flat foot/pes planus and pronated right big toe noted at service entrance were aggravated by (worsened beyond normal progression during) active service? (c.) Is it as least as likely as not (50 percent or greater probability) that a currently diagnosed left foot and right toe disorder (other than flat foot/pes planus and pronated right big toe) had its onset during a period of active military service? (d.) Is it at least as likely as not (50 percent or greater probability) that a currently diagnosed left foot and right toe disorder (other than flat foot/pes planus and pronated right big toe) was either caused by, or aggravated by, a service-connected disability? The term "aggravation" in the above context refers to any increase in disability. A complete rationale must be provided for any and all opinions offered. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and her/his representative an opportunity to respond, and return the case to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.