Citation Nr: 21014166 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-01 486 DATE: March 11, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for nervous stomach is reopened; the appeal is allowed to this extent. Service connection for acid peptic ulcer disease with duodenal ulcer and gastrointestinal reaction (claimed as nervous stomach) is granted. FINDINGS OF FACT 1. A March 1975 rating decision denied the Veteran’s initial claim of service connection for a nervous stomach; the Veteran did not appeal this decision, or submit new and material evidence within a year of its issuance. 2. Evidence received since the March 1975 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a nervous stomach, diagnosed as a duodenal ulcer and gastrointestinal reaction, and raises a reasonable possibility of substantiating such claim. 3. The Veteran’s duodenal ulcer and gastrointestinal reaction clearly and unmistakably pre-existed his active duty service. 4. There is not clear and unmistakable evidence that the Veteran’s duodenal ulcer and gastrointestinal reaction was not aggravated in service. CONCLUSIONS OF LAW 1. The March 1975 rating decision that denied a claim for service connection for a nervous stomach is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, and the claim for service connection for acid peptic ulcer disease with duodenal ulcer and gastrointestinal reaction (claimed as nervous stomach) is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for acid peptic ulcer disease with duodenal ulcer and gastrointestinal reaction (claimed as nervous stomach) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which found that new and material evidence sufficient to reopen the claim had not been submitted, and continued to deny the claim. The Veteran filed a notice of disagreement with this decision. In a November 2015 Statement of the Case (SOC), the RO found that new and material evidence had been submitted, and reopened the claim. Although the RO reopened the claim when it decided the underlying issue on the merits in the November 2015 SOC, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd, 8 Vet. App. 1 (1995). The Board has characterized the claim accordingly. The claim was previously before the Board in March 2019, at which time it was remanded to the RO for further development, to include a new VA examination. The Board finds that there has been substantial compliance with its March 2019 directives, and further appellate review is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). New and Material Evidence The Veteran asserts that he is entitled to service connection for a duodenal ulcer and gastrointestinal reaction, claimed as nervous stomach, which he contends pre-existed his service and was aggravated by such. By way of history, the Veteran’s claim was originally denied in a March 1975 rating decision based on a finding that, while the condition clearly pre-existed service, there was no aggravation by the Veteran’s service. The Veteran did not appeal this decision, and no further correspondence concerning his nervous stomach was received by VA until the August 2013 claim on appeal herein. Thus, the March 1975 decision denying service connection for nervous stomach is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 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 final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States 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. The Court interpreted the language of 38 C.F.R. § 3.156 (a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the March 1975 rating decision consisted of the Veteran’s service treatment records, lay statements, and a November 1971 VA examination report. The examination report concluded that there had been no aggravation of the Veteran’s gastrointestinal disorder by his service. The evidence associated with the claims file after the March 1975 rating decision includes post-service VA treatment records from 1971, 1973 and 1974 showing hospitalization for stomach trouble, suggesting a worsening of the condition by service. and the report of an October 2015 VA examination. This evidence is new, in that it was not previously of record. The post-service hospitalization records suggest a relationship between the Veteran’s service and his pre-existing stomach condition. Since the lack of evidence of a relationship to service was part of the basis for the denial of the claim in the prior decision, this new evidence clearly relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence has been received to reopen the claim for service connection for duodenal ulcer and gastrointestinal reaction (claimed as nervous stomach), and thus reopening the claim is warranted. 38 C.F.R. § 3.156 (a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran’s disability both existed prior to service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his acid peptic ulcer disease with duodenal ulcer and gastrointestinal reaction (claimed as nervous stomach) condition was aggravated beyond normal progression while serving in the military. He asserts that, prior to joining the military, he was able to deal with the stomach pain as his pain was not severe and the pain was sporadic, but that his stomach pain was more frequent in service than it was prior to service. The Veteran’s May 1969 entrance examination appears to show that his gastrointestinal system was evaluated as normal; however a general notation on the same form appears to indicate some issue with the system. In the concurrent Report of Medical History, the Veteran reported a history of stomach trouble. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that his stomach disorder was noted at entry and, thus, pre-existed service. The Board has found that there is clear and unmistakable evidence that the Veteran had an ulcer prior to entering service. Review of the evidence shows that there is not clear and unmistakable evidence that the Veteran’s ulcer condition was not aggravated by his service. Service treatment records show that in September 1969, the Veteran reported stomach pain and indicated that he had stomach trouble all his life. In October 1969, he reported vomiting and stomach pain. A diagnosis of possible peptic ulcer was made. The Veteran was seen in December 1969 for complaints of nausea and stomach problems. In April 1970, it was noted that he had a 4-year history of dull epigastric pain not especially associated with meals. An impression of rule out hiatus hernia and rule out peptic ulcer disease was made. The Veteran was seen again in May 1971 for persistent stomach distress. A diagnosis of chronic duodenal deformity secondary to chronic peptic ulcer disease was made at that time. The Board notes that the November 2019 VA examiner concluded that there was no aggravation of the Veteran’s disability by service, as there was an absence of a showing of such in his separation examination. However, the Board finds the examiner’s rationale is inadequate, as it relies entirely on the absence of contemporaneous medical records indicating an increase in severity of the disability. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Thus, as there is not clear and unmistakable evidence that the Veteran’s ulcer condition was not aggravated by his service, the in-service incurrence element is met. The presumption of soundness is not rebutted and the question becomes one of direct service connection. The Veteran’s post service records show that he continued to receive treatment for ulcers immediately following service. Records show that in a hospital summary note for the period from November 1971 to December 1971, the Veteran described experiencing epigastric discomfort, not relieved by food and which occurred in the mornings. The condition was not relieved by medication. While a GI series apparently showed no ulcer at the time, the Veteran was placed on a regimen of treatment specifically for a gastric ulcer. Duodenal ulcers are a chronic disease subject to presumptive service connection if it manifests to a compensable degree within one year of separation. 38 C.F.R. § 3.309 (a). Duodenal ulcers are rated under Diagnostic Code 7305, where a 10 percent rating is warranted when it is mild, with recurring symptoms once or twice per year. 38 C.F.R. § 4.114. It is reasonable to conclude that the symptoms the Veteran experienced in service (nausea, epigastric pain) were from the same condition that was noted immediately after service, and that the Veteran has continually described as experiencing since service; thus, they did not resolve immediately upon separation. Therefore, resolving any doubt in favor of the Veteran, service connection for a duodenal ulcer is granted on a presumptive basis. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.