Citation Nr: 21074970 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-23 288 DATE: December 16, 2021 ORDER The application to reopen the claim for service connection for a gastrointestinal disability is granted. Entitlement to service connection for a gastrointestinal disability (claimed as Crohn's colitis) is granted. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed October 2015 rating decision denied service connection for colon cancer and service connection for colon polyps each on the basis that such disabilities were not directly related to service or to conceded exposure to herbicide (Agent Orange). 2. Evidence received since the October 2015 rating decision includes contentions by the Veteran that his gastrointestinal disability (claimed as Crohn's colitis) is secondary to PTSD that was subsequently granted in October 2016 rating decision; relates to an unestablished fact necessary to substantiate the claim of service connection for a gastrointestinal disability; and raises a reasonable possibility of substantiating such claim. 3. It is reasonably shown that symptoms associated with the Veteran's service-connected PTSD aggravated the Veteran's gastrointestinal disability (Crohn's colitis) beyond its natural progression. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a gastrointestinal disability (now claimed as Crohn's colitis) may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for a gastrointestinal disability (Crohn's colitis) as secondary to service-connected PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to August 1971 including two tours of duty in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2016 and December 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, a video conference hearing was held before the undersigned; a transcript is in the record. 1. Reopen the claim for service connection for a gastrointestinal disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "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 (a). The mere allegation of a new theory of entitlement to service connection is insufficient to reopen the previously denied claim. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Actual submission of new and material evidence in support of that theory of entitlement is necessary. Id. The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for colon cancer and service connection for colon polyps were previously denied on the basis that such disabilities were not directly related to service or related to exposure to Agent Orange. The decision is final. Accordingly, new and material evidence to reopen the claim of a gastrointestinal disability is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. Considering the basis for the prior denial of the claims, for evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material it would have to tend to show that the Veteran's gastrointestinal disability might be etiologically related to his service (or as here claimed, to a service-connected disability). Evidence added to the record since the October 2015 rating decision includes an October 2016 rating decision which granted service connection for PTSD (and December 2017 correspondence in which the Veteran alleges his Crohn's colitis was aggravated by his service-connected PTSD. While the mere allegation of a new theory of entitlement alone is insufficient to reopen a claim, coupled with new evidence supporting the new theory of entitlement, it may be sufficient to be deemed both new and material. Here, an October 2016 rating decision granted service connection for PTSD, and such grant satisfied a threshold legal requirement for the secondary service connection theory of entitlement (existence of a disability already service-connected). As that legal requirement was not previously met, the award of service connection for PTSD is new evidence that pertains to a previously unestablished fact necessary to substantiate the claim of service connection for a gastrointestinal disability (on a secondary service connection theory of entitlement); considering the "low threshold" standard for reopening endorsed by the Court in Shade, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received, and that the claim of service connection for a gastrointestinal disability (claimed as Crohn's colitis) may be reopened. 2. Entitlement to service connection for a gastrointestinal disability (claimed as Crohn's colitis). When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by section 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Bernard v. Brown, 4 Vet. App. 384, 390 (1993); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed.Cir.1996) (stating that, in new and material evidence cases, the Board's jurisdiction does not vary "according to how the [RO] ruled"). As the decision below is favorable to the Veteran, he is not prejudiced by proceeding on the merits. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A September 2016 intestinal conditions examination notes diagnoses of ulcerative colitis, intestinal neoplasm, left colectomy, and adenoma cancer of the colon. The Veteran reported symptoms began two years after his separation from service. A November 2016 intestinal conditions examination notes diagnoses of ulcerative colitis and intestinal neoplasm. In a November 2016 medical opinion, the clinician opined that it was less likely than not that the Veteran's ulcerative colitis with colon cancer treated with partial colectomy was secondary to his PTSD. The clinician noted there was insufficient evidence supporting PTSD as a causative factor for ulcerative colitis. The clinician further stated that the exact etiology of inflammatory bowel disease was unknown, but PTSD was not considered a causative factor for ulcerative colitis. Lastly, the clinician stated stress may aggravate disease, but it is not causative nor is it a risk factor. A November 2016 intestinal surgery examination notes a history of resection of the large intestine. In May 2017 correspondence, the Veteran's private physician noted the Veteran has Crohn's disease. The provider indicated that they agreed with research findings that stress in Crohn's disease patients effects the course of the disease leading to flares and the need for surgery. The provider opined that stress had probably contributed to the progression of the Veteran's disease. In May 2018 correspondence the Veteran's private physician again indicated the Veteran had Crohn's disease and expressed agreement with findings that stress has a major effect on the course of Crohn's disease. The private physician further opined that stress related to the Veteran's PTSD had contributed to the progression of his disease. A February 2020 intestinal conditions examination notes diagnoses of irritable bowel disease, Crohn's disease, diverticulitis, and colon cancer. It was noted that the Veteran underwent a partial colon resection surgery for colon cancer in 1995. It is contended that the Veteran's gastrointestinal disability (Crohn's colitis) is aggravated by symptoms of his service-connected PTSD. Upon review of the record, there is relative equal balance for and against a finding that the Veteran's gastrointestinal disability (Crohn's colitis) was aggravated by symptoms of his service-connected PTSD. The Board notes that although the opinion offered by the November 2016 examiner was against the Veteran's claim, the examiner only addressed causation in this matter, but noted generally that "stress may aggravate disease." In May 2017 correspondence, the Veteran's private physician noted the impact of stress on Crohn's symptoms and stated that the Veteran's stress related to his PTSD "probably" had contributed to the progression of his disease. In May 2018 correspondence, the Veteran's private physician clarified his opinion provided in his May 2017 correspondence and opined that stress related to the Veteran's PTSD had contributed to the progression of his disease. The Board finds that collectively, the opinions which offer evidence that symptoms of stress associated with the Veteran's service-connected PTSD aggravated his gastrointestinal disability (Crohn's colitis) to be persuasive. Accordingly, resolving reasonable doubt in the matter (see 38 C.F.R. § 3.102), the Board finds that it is reasonably shown that the Veteran's gastrointestinal disability (Crohn's colitis) is aggravated by symptoms of the Veteran's service-connected PTSD, and service connection is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for PTSD At the September 2021 video conference hearing, the Veteran testified that his PTSD had worsened since he was last examined in 2016. See September 2021 Video Conference Hearing pg. 8. The record reflects that he receives ongoing treatment for PTSD. However, a review of the record indicates that the Veteran's VA records are only of file until March 2020. VA treatment records are considered constructively of the record and must be sought. 38 C.F.R. § 3.159 (c)(2). Accordingly, given the allegations of worsening, and outstanding VA treatment records (which have yet to be considered by a medical professional), a remand to secure updated records and a new examination to ascertain the current level of impairment is necessary. 2. Entitlement to a TDIU A TDIU claim is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the claim of TDIU has been raised by the record. See October 2020 Correspondence. Currently it is unclear from the record when the Veteran's employment ended, and the Veteran has not been provided with a VA form 21-8940. The Veteran has raised the matter of TDIU in terms of his Crohn's colitis. Accordingly, the RO has not been afforded an opportunity to consider the now service-connected gastrointestinal disability's impact on employment. Additionally, the Board notes that the question of TDIU is inextricably intertwined with the question of the degree of impairment caused by the Veteran's service-connected PTSD. The Veteran's service-connected PTSD is rated 50 percent. Accordingly, the degree of impairment caused by the Veteran's PTSD directly impacts the question of entitlement to TDIU. Accordingly, the matter of TDIU must be addressed once service connected is assigned and rated for the Veteran's gastrointestinal disability, and all treatment associated with the Veteran's PTSD and new PTSD examination are fully addressed. The matters are REMANDED for the following action: 1. Arrange for development to secure for the record up to date (since March 2020) clinical records of the Veteran's VA clinic treatment records. If such records are unavailable, it must be noted in the record, with explanation, and the Veteran should be so notified. 2. Following the above development, arrange for a psychiatric examination of the Veteran to assess the severity of his PTSD. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the criteria for rating mental disorders. The examiner's attention is called to the Veteran's September 2021 hearing testimony of current symptoms. The examiner is also requested to comment on the impact on social an occupational functioning (to include the impact on employability). 3. Send the Veteran a VA Form 21-8940 to complete, with instruction to complete it in its entirety including work and education history and submit it to VA. When that action is completed, readjudicate the matter of entitlement to TDIU, considering the determination made on the Veteran's increased rating claim for PTSD, and rating assigned to the newly service-connected gastrointestinal disability. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.