Citation Nr: 21075722 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-06 228A DATE: December 21, 2021 ORDER The petition to reopen the claim of entitlement to service connection for an abdominal disorder is allowed. The appeal is granted to that extent only. REMANDED Entitlement to service connection for a bilateral wrist disorder is remanded. Entitlement to service connection for an abdominal disorder, to include as due to an undiagnosed illness, is remanded. FINDING OF FACT 1. In a July 2003 rating decision, the claim of entitlement to service connection for an abdominal disorder was denied. The Veteran did not appeal this determination or submit new and material evidence within one year of notification of the decision. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the July 2003 rating decision and relates to an unestablished fact necessary to substantiate the service connection claim on appeal. CONCLUSIONS OF LAW 1. The July 2003 rating decision denying service connection for an abdominal disorder is final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence had been received to reopen the claim of entitlement to service connection for an abdominal disorder and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from August 1992 to August 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that the RO issued a December 2018 Statement of the Case (SOC). The Veteran then filed a Form 9 which was received by VA in March 2019. She was subsequently informed by VA in April 2019 that her Form 9 was rejected as untimely. She then filed a Notice of Disagreement regarding the VA's rejection of her Form 9. The RO then certified the Veteran's appeal to the Board in March 2020. The Board finds that the Veteran's substantive appeal is deemed timely, as it was filed with VA more than 60 days after the issuance of the December 2018 SOC. 38 U.S.C. § 7105 (d)(3). However, the Board may still exercise jurisdiction to adjudicate a veteran's claim, as the 60 day-period under 38 U.S.C. § 7105 (d)(3) does not act as a jurisdictional bar. Percy v. Shinseki, 23 Vet. App. 37 (2009). The record reflects that the Veteran has shown a clear intent to have the Board review his claim and that VA has continued to perfect this appeal to the Board. Therefore, the Board will exercise jurisdiction over the Veteran's claims on appeal and adjudicate them accordingly. New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination to reopen a claim based on new and material evidence that is independent of the RO's decision to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). By way of history, the Veteran submitted her service connection claim for an abdominal disorder in January 2003. In a July 2003 rating decision, the claim was denied. The RO found that that there was no evidence of a current disability or that the condition occurred during service. The RO noted that a review of the service treatment records (STRs) revealed treatment for abdominal pain in January 1996 with a diagnosis of probably urinary tract infection. In addition, the RO noted that a review of the post-service VA treatment records did not show any evidence of complaints, treatment, or a diagnosis regarding abdominal pain. The Veteran did not appeal that decision or submit new and material evidence within one year of notification of the decision, thereby making that decision final after the one-year mark. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In May 2017, the Veteran submitted a claim for service connection for an abdominal disorder. The evidence received since the time of the July 2003 rating decision includes additional VA treatment records, her March 2021 Board testimony, and lay statements from fellow service members and family members. The additional VA treatment records noted ongoing complaints and treatment for abdominal issues. The Veteran also testified at her Board hearing that her abdominal issues were related to the ingestion of food while she was stationed in Bahrain during active duty. She also testified that she currently experienced stomach cramps that would keep her bedridden for a couple days and may take up to four days to subside. Furthermore, she testified that she has experienced the same type of abdominal pain since service. Finally, a review of the lay statements revealed that the Veteran was observed to be (1) hesitant to partake in certain food and drink during service, and (2) experienced stomach issues that were unpredictable and would catch her off guard, requiring her to miss work. The aforementioned evidence is presumed credible for purposes of reopening a claim based on new and material evidence. This evidence is new and material as it pertains to: (1) whether the Veteran has a current abdominal disability and (2) whether she has experienced continuous abdominal issues since service separation as a result of her in-service abdominal complaints. These are previously unsubstantiated facts that are necessary to substantiate the service connection claim on appeal. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral wrist disorder. 2. Entitlement to service connection for an abdominal disorder, to include as due to Southwest Asia service. The Veteran contends that she currently experiences bilateral wrists issues due to her military service. In addition, she contends that her abdominal disorder is the result of eating food while stationed in Bahrain during active duty. The Veteran's service records show that she is a Gulf War Veteran. Pursuant to applicable law and regulations, VA has authorized the payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of disability of 10 percent or more not later than December 31, 2026. Under 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder which would encompass the Veteran's claim) that is defined by a cluster of signs or symptoms; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection for infectious diseases. The Board notes that the Veteran has not undergone a VA examination to determine the nature and etiology of the bilateral wrist and abdominal disorders. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran's service connection claims meet all the McLendon elements for a VA examination. She testified that she experiences bilateral wrist pain as a result of several falls she experienced during active duty. In addition, she testified that she began experiencing stomach issues while stationed in Bahrain that have continued to the present date. Furthermore, a review of the STRs and post-service VA treatment records note complaints and treatment for both bilateral wrist and abdomen issues. However, there is insufficient competent medical evidence in the Veteran's claims file for the Board to decide these service connection claims. Therefore, the Board will remand these matters to obtain VA examinations to determine the etiology of the bilateral wrist and abdominal disorders. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Once the above has been completed to the extent possible, schedule a VA examination to determine the nature and etiology of the Veteran's bilateral wrist disorder with a medical professional with appropriate expertise. The examiner must review the claims file and make a notation on the examination report that the claims file was reviewed. Based on the examination results, and a review of the evidence of record, the examiner must address the following: Whether it is at least as likely as not (a balance of positive and negative evidence) that the Veteran's bilateral wrist disorder manifested during service or is otherwise related to service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report her medical history including symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Arrange for the Veteran to undergo a VA Gulf War examination to determine the current nature and etiology of her claimed abdominal disorder. Such examination should conform to the guidelines for conducting Gulf War examinations set forth in the Under Secretary for Health's Information letter, dated April 28, 1998 (IL 10-98-010). Additional specialist examination(s) should be conducted as needed. The examiner must review the claims file and make a notation on the examination report that the claims file was reviewed. The examiner should note and detail all reported abdominal disorder(s). The examiner should conduct a comprehensive general medical examination, and provide details on the onset, frequency, duration, and severity of all symptoms of abdominal disorders. (a.) With respect to the complaint or symptoms of abdominal issues, the examiner should specifically state whether the Veteran's symptoms are attributable to a known diagnostic entity. (b.) If there is a known diagnosis of an abdominal disorder that can be medically explained, the examiner should opine as to whether it is at least as likely as not (a balance of positive and negative evidence) that the diagnosed disorder had its clinical onset during active service or is related to any incident of service, to include environmental exposures while serving in Southwest Asia. The examiner should address the Veteran's reports of abdominal issues since ingesting food while stationed in Bahrain during active duty. (c.) If a diagnosis for the Veteran's complaints of abdominal symptoms cannot be determined, then the examiner must provide an opinion as to whether the Veteran's complaints are a sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness. Of note, signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, gastrointestinal signs or symptoms. See 38 C.F.R. § 3.317 (b). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report her medical history including symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.