Citation Nr: 21076211 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-45 260 DATE: December 22, 2021 ORDER As new and material evidence has been received, the Veteran's claim to entitlement to service connection for a stomach condition to include hiatal hernia is reopened. REMANDED Entitlement to service connection for a stomach condition to include hiatal hernia is remanded. Entitlement to service connection for cold residual injury to the bilateral feet is remanded. FINDING OF FACT 1. A July 2012 rating decision denied service connection for the Veteran's claimed stomach condition. The Veteran was notified of this decision but did not perfect his appeal, therefore the decision became final. 2. The evidence received since the July 2012 rating decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a stomach condition. CONCLUSION OF LAW 1. The July 2012 rating decision, which denied the Veteran's claim of entitlement to service connection for a stomach condition, are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Evidence received since the July 2012 rating decision in relation to the Veteran's claim for entitlement to service connection for a stomach condition; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service with the Army from August 1977 to August 1980 to include service in the Reserves. This matter is on appeal from an August 2016 rating decision. The Board initially notes that following the March 2018 Statement of the Case (SOC) for the above issues, the Veteran's form 9 was submitted in September 2018 which would not have been filed timely. However, the RO nevertheless issued a certification of appeal, VA Form 8, shortly after receipt of the Veteran's Form 9. Accordingly, the Board has waived the timeliness requirement of the substantive appeal, VA Form 9, in this case and assumes jurisdiction over the Veteran's claims. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (the failure to file a timely substantive appeal is not jurisdictional and may be waived by the Board). The Veteran was afforded a February 2021 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to 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 redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 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 the evidence is inherently incredible or beyond the competence of the witness). 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). Stomach Condition to include hiatal hernia In a July 2012 rating decision, service connection for a stomach condition was denied. Evidence at the time of the rating decision included the Veteran's service treatment records (STRs) and VA medical center (VAMC) treatment records. The rating decision found there was no current diagnosed disability, nothing in the Veteran's STRs and no nexus between the Veteran's claimed condition and active-duty service. The Veteran was notified of this decision but did not perfect his appeal; therefore, the July 2012 rating decision became final. New evidence sinc ethe July 2012 rating decision includes VA medical treatment records, VA examinations, hearing testimony, and the Veteran's substantive appeal. A December 2014 VA examination diagnosed the Veteran with hiatal hernia, and the Veteran has submitted statements and testimony regarding the etiology of his claimed stomach condition relating to his diet in service. The evidence and statements, if presumed credible, raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for service connection for a stomach condition is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND The Board finds that remand is warranted for additional development. Stomach condition The Veteran contends that his stomach condition is related to his active-duty service. Review of the Veteran's STRs shows several complaints of stomach pain and problems. At the Veteran's December 2014 VA examination, the Veteran reported symptoms of chronic abdominal pain in service that continued since his separation. The Veteran indicated that these symptoms may have been related to eating a lot of C-rations and from exposure to cold in the field. The examiner found it less likely than not that the Veteran's stomach condition was related to his active-duty service and found the Veteran did not have symptoms secondary to hiatal hernia and such reported symptoms were non-specific and not diagnostic of a specific medical condition; the examiner also opined there was nothing found in the military record relating to hiatal hernia. However, the examiner did not address the Veteran's documented stomach pains and symptoms in the STRs or address the Veteran's report of symptoms relating to eating rations or from exposure to cold. The examiner did not explain why the Veteran's statements were not considered. At the Veteran's February 2021 hearing, the Veteran testified to his stomach problems relating to eating C-rations and "stuff out of the can" along with exposure to cold. The Veteran stated that he continued to receive treatment following his separation from service and experienced symptoms since. As such, the Board finds the December 2014 VA opinion inadequate, and remand warranted to obtain an adequate opinion. The Veteran also testified in February 2021 on seeing a psychiatrist that discussed the nature and etiology of his claimed stomach condition. The Veteran also stated that he began seeing VAMC in Salisbury for treatment since the 1970s to 1980s relating to his stomach problems. Review of the record does not show whether records of this visit with the psychiatrist were associated with the record, and the earliest VAMC records date from 2009. As such, the Board finds that there may be outstanding treatment records and remand warranted to associate these records with the claims file. Cold residual injury to bilateral feet The Veteran asserts that his cold residual injury to his bilateral feet is related to his active-duty service. The Veteran has submitted statements and testimony that he spent much time in the field outside during service in "32 below zero" temperatures and this resulted in frostbite of his feet. The Veteran testified in February 2021 to symptoms of cramping and aching in his feet that prevented him from walking. The Board also notes that the Veteran is currently service connected for radiculopathy of the bilateral lower extremities. Review of the record shows the Veteran has not been afforded a VA examination on the nature and etiology of his claimed cold residual injury to bilateral feet. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records to include any VAMC records from the 1970s to 1980s. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed stomach condition and residuals of cold injury to feet. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. (a.) If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's stomach condition and cold residual injury to the bilateral feet. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify each current residuals of cold injury to feet separate and distinct from the Veteran's service-connected radiculopathy of the bilateral lower extremities; and stomach condition which may include pain alone that rises to the level of functional impairment. If either disability existed during the appeal period to the present but has resolved, this should be made clear (b.) For each residuals of cold injury to feet disability identified, is it as least as likely as not (a 50 percent or greater probability) the Veteran's cold residual injury to feet arose in service or is etiologically related to his military service? (c.) For each stomach condition disability identified, is it as least as likely as not (a 50 percent or greater probability) the Veteran's cold residual injury to feet arose in service or is etiologically related to his military service to include from eating rations and/or exposure to cold? (d.) In rendering the requested opinions, the VA examiner should identify and address any relevant medical and lay evidence to include the complaints of stomach pain in the service treatment record (STRs); the December 2014 VA examination findings and medical opinions; and February 2021 hearing testimony. (e.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports or lay statements, the examiner must provide a reason for doing so. (f.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.