Citation Nr: 21012921 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-52 971 DATE: March 8, 2021 REMANDED Entitlement to service connection for a duodenal ulcer is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), including as due to a duodenal ulcer, is remanded. Entitlement to service connection for diverticulitis, including as due to a duodenal ulcer, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from September 1969 to October 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a July 2019 decision, the Board declined to reopen the issue of service connection for a duodenal ulcer, and denied service connection for GERD and diverticulitis. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court set aside the Board’s decision and remanded the claim to the Board for further proceedings consistent with the decision. As to the question of reopening service connection for a duodenal ulcer, the Court held that the Board erred in failing to consider whether newly received service personnel records warranted reconsideration of the original claim for service connection for a duodenal ulcer, which was first denied in a February 1973 RO rating decision and again denied in a May 1973 Board decision. Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). An award made based all or in part on records identified in § 3.156(c)(1) is effective on the date entitlement arose or the date which VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). Such regulation essentially establishes that, where an initial claim is denied due to the lack of evidence of an in-service event, such as worsening hearing during service, but is later granted based all or in part on subsequently acquired service records establishing the in-service event, the claimant is entitled to a retroactive evaluation of the disability to assess the proper effective date, which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. Id.; Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). In this sense, the prior denial is reconsidered, and the original claim serves as the date of the claim and the earliest date for which benefits may be granted. As noted in the July 2019 Board decision and the July 2020 Memorandum Decision, subsequent to the issuance of the February 1973 RO rating decision and May 1973 Board decision denying service connection for a duodenal ulcer, VA received service personnel records that were not previously before VA. As the Veteran had been discharged from service due to a preexisting duodenal ulcer, and as the service personnel records address this fact, the Board cannot say that the newly associated service personnel records are not relevant to the question of service connection for a duodenal ulcer. As such, the Board finds reconsideration of the question of service connection for a duodenal ulcer to be warranted pursuant to 38 C.F.R. § 3.156(c), and the issue on appeal has been reframed as entitlement service connection for a duodenal ulcer. As the Board has found that reconsideration under 38 C.F.R. § 3.156(c) is warranted, the question of whether the prior denial of service connection should be reopened has been rendered moot, and the Board finds the Court’s concerns as to this issue have been satisfied. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). Finally, concerning the issues of service connection for GERD and diverticulitis, the Court found these issues to be intertwined with the issue of service connection for a duodenal ulcer, as the Veteran argues that the GERD and diverticulitis are due to the preexisting duodenal ulcer. As such, the issues were remanded by the Court alongside the duodenal ulcer issue. 1. Service Connection for a Duodenal Ulcer 2. Service Connection for GERD 3. Service Connection for Diverticulitis VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Throughout the course of this appeal, including in a November 2018 statement, the Veteran has argued that the preexisting duodenal ulcer was non-symptomatic at service entrance, and that during basic training he began developing terrible stomach problems. It is the Veteran’s argument that the physical activity worsened the preexisting duodenal ulcer beyond normal progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Service treatment records reflect that in October 1969 the Veteran complained of epigastric burning following running and physical training. Another October 1969 service treatment record reported that the Veteran had considerable difficulty since entering basic training due to chronic and recurrent abdominal pains. As such, the Board finds remand to obtain a medical opinion to be warranted. The Veteran has argued that currently diagnosed GERD and diverticulitis were caused or aggravated by the duodenal ulcer. As remand for a duodenal ulcer opinion is necessary, the Board will also direct the Agency of Original Jurisdiction (AOJ) to obtain medical opinions as to the GERD and diverticulitis issues. Considering the complexity of the medical questions at issue, the Board finds remand to obtain a medical specialist opinion from a gastroenterologist or other appropriate specialist is preferred. The matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the Veteran’s gastrointestinal symptoms. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s gastrointestinal symptoms, not already of record, for the period from April 2017. 3. Obtain a medical opinion from a gastroenterologist or other appropriate specialist. The relevant facts and medical history should be made available to the specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. Examination of the Veteran is not required unless the specialist determines that an examination is necessary to provide a reliable opinion. If an examination is deemed necessary, the examination itself may, but need not, be conducted by a gastroenterologist or other appropriate specialist. Rather, upon completion, the examination report may be forwarded to the gastroenterologist or other appropriate specialist. The specialist should provide the following opinions: Duodenal Ulcer Is it at least as likely as not (50 percent or higher degree of probability) that the preexisting duodenal ulcer was aggravated (worsened beyond normal progression) during active service? In rendering this opinion, the specialist should specifically address the Veteran’s October 1969 complaint of epigastric distress following running and physical training. GERD and Diverticulitis A) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s currently diagnosed GERD and/or diverticulitis first manifested during service or are otherwise related to service? In rendering this opinion, the specialist should opine as to whether any of the Veteran’s in-service gastrointestinal symptoms were due to GERD and/or diverticulitis, rather than the preexisting duodenal ulcer. B) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s GERD and/or diverticulitis was caused by the preexisting duodenal ulcer? C) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s GERD and/or diverticulitis was aggravated (worsened beyond normal progression) by the preexisting duodenal ulcer? 4. Reconsider the February 1973 RO rating decision denial of service connection for a duodenal ulcer, applying 38 C.F.R. § 3.156(c). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.