Citation Nr: 21014459 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-51 305 DATE: March 12, 2021 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for Crohn’s disease is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for Crohn’s disease with history of gastritis, including as secondary to service-connected posttraumatic stress disorder and autoimmune thyroiditis is remanded. FINDINGS OF FACT 1. Entitlement to service connection for Crohn’s disease was denied in an August 2014 rating decision; the Veteran did not appeal, and new and material evidence was not received within one year. 2. Some of the evidence received since the August 2014 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for Crohn’s disease. CONCLUSIONS OF LAW 1. The August 2014 rating decision that denied entitlement to service connection for Crohn’s disease is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the August 2014 rating decision is new and material, and the Veteran's claim for service connection for Crohn’s disease is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for Crohn’s disease. The Veteran seeks to reopen her previously denied claim for entitlement to service connection for Crohn’s disease. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for Crohn’s disease was last denied in a rating decision of August 2014. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the August 2014 rating decision denied the claim on the basis that there was no evidence that the Veteran's disorder was due to service, the Board finds that new and material evidence would consist of evidence that the Veteran's disorder is due to service. The evidence received since the August 2014 rating decision consists of numerous records and documents. Pertaining to her Crohn’s disease, the Veteran asserts her Crohn’s disease was due to her exposure to jet fuel in service and the treatment for her service-connected autoimmune thyroiditis with medications which masked her symptoms of and aggravated her Crohn’s disease. The RO denied reopening the claim for Crohn’s disease due to “the evidence from the VA Medical Center and St. Mark's Hospital submitted in connection with the current claim does not constitute new and material evidence because it was previously submitted and considered in the rating decision of August 21, 2014.” However, the evidence submitted from St. Mark’s Hospital was from May and June 2015. Also, an April 2016 VA examination noted the Veteran had “jet fuel spilt on her, jet fuel flushed in her head, diagnoses of graves’ disease, Crohn’s disease, and hypothyroidism, transferred to AIMD, left active duty.” As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for Crohn’s disease. The Board determines that the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for Crohn’s disease with history of gastritis is remanded. The Veteran contends that her Crohn’s disease was caused by her exposure to jet fuel in service; and her service-connected posttraumatic stress disorder (PTSD) and the treatment for her service-connected autoimmune thyroiditis with medications masked her symptoms of and aggravated her Crohn’s disease. Throughout the course of the appeal, the Veteran was diagnosed with diffuse colonic edema/ulceration with relative rectal sparing status post biopsy, fibro stenotic ileocolonic Crohn's disease, Crohn’s disease of small and large intestines, peptic ulcer disease, colitis, ulcerative colitis, irritable bowel syndrome, and epigastric pain. The Board notes that in the January 2017 VA medical opinion, the examiner stated that there was no direct association between the Veteran's Crohn's disease diagnosis and her service-connected autoimmune thyroiditis. There was no opinion offered regarding aggravation. The United States Court of Appeals for Veterans Claims (Court) has held that when an examiner determines whether service connection is warranted on a secondary basis, he or she must address both direct causation as well as aggravation. Allen v. Brown, 7 Vet. App. 439, 449 (1995). On remand, an addendum opinion must be obtained. Service treatment records show an assessment of gastroenteritis in June 2003. The Veteran was diagnosed with diffuse colonic ulceration with relative rectal sparing in August 2005. In an October 2005 VA treatment note, the medical provider was “concerned about Crohn's disease despite negative biopsies and serological tests.” The April 2016 VA examiner noted diagnoses of “Graves’ disease, Crohn’s disease, hyperthyroidism, and four autoimmune disorders during active duty.” The January 2017 VA examiner noted colonic ulceration diagnosis was changed to Crohn’s disease in 2008 and that Crohn’s disease is a disorder of uncertain etiology. The January 2017 opinion does not address direct service connection. The July 2017 VA examiner noted diagnosis of Crohn’s disease during active service. On remand, an addendum opinion must be obtained. In a 2003 service treatment record, the examiner noted prior medical history of “gastric Bx - 16 years.” In a May 2005 VA treatment note, the medical provider noted that the Veteran may have had a gastritis problem at age 16 or that it existed prior to service. The January 2017 opinion does not address aggravation of a condition that existed prior to service. On remand, an addendum opinion must be obtained. Finally, the Veteran testified she was treated at private hospitals after service for her Crohn’s disease. On remand, these records should be obtained and associated with the claims file. The matter is REMANDED for the following action: 1. Obtain all updated VA treatment records. 2. Request that the Veteran complete authorizations for VA to obtain all private treatment records since her discharge in October 2004. Inform the Veteran that she can submit the evidence herself. If no additional records are located, inform the Veteran, and a negative response must be associated with the claims file. 3. Once the development above is completed, obtain an addendum opinion for the Veteran's claimed Crohn’s disease. The need for an additional examination is left to the discretion of the examiner. Following review of the claims file, to include this Board remand, the examiner should provide an opinion on the following: (a) Is it clear and unmistakable that the Veteran entered service with pre-existing gastritis? The examiner should explain why or why not. (b) If yes, is it clear and unmistakable that the Veteran's pre-existing gastritis WAS NOT aggravated beyond the natural progress of the disorder during her service? The examiner should explain why or why not. (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current Crohn’s disease is etiologically related to any symptomatology noted in service, to include exposure to jet fuel? The examiner should explain why or why not, to include addressing the medical provider’s concern of Crohn’s disease despite negative biopsies and serological tests in October 2005; and the progression of diagnoses during and after service related to Crohn’s disease. (d) Is it at least as likely as not that the Veteran's Crohn’s disease is proximately due to or AGGRAVATED (beyond a natural progression) by her autoimmune thyroiditis and/or PTSD? The examiner should explain why or why not, to include addressing the medical provider’s notation of significant colonic inflammation secondary to nonsteroidal anti-inflammatory drugs (NSAIDs) in September 2005. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.