Citation Nr: 21015517 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-53 678A DATE: March 17, 2021 ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for colitis. New and material evidence has been submitted to reopen the claim of entitlement to service connection for infertility. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for infertility is remanded. FINDINGS OF FACT 1. The August 1991 rating decision denied service connection for colitis. The Veteran did not appeal or submit new and material evidence within one year. 2. Since the August 1991 rating decision, new and material evidence has been submitted to reopen the claim of entitlement to service connection for colitis. 3. The January 2015 rating decision denied service connection for infertility. The Veteran did not appeal or submit new and material evidence within one year. 4. Since the January 2015 rating decision, new and material evidence has been submitted to reopen the claim of entitlement to service connection for infertility. CONCLUSIONS OF LAW 1. The August 1991 rating decision denying service connection for colitis is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. The criteria to reopen the issue of entitlement to service connection for colitis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). 3. The January 2015 rating decision denying service connection for infertility is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 4. The criteria to reopen the issue of entitlement to service connection for infertility have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1984 to April 1988, to include service in Camp Lejeune, North Carolina. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). At the October 2020 Board hearing, the Veteran revoked her power of attorney for the Mississippi Veterans Affairs Board. In this regard, a power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). In this case, the Veteran has clearly revoked her power of attorney for the Mississippi Veterans Affairs Board. She has not selected another representative. Thus, at this time, she is unrepresented in the present matter before the Board. As discussed in the Remand section below, the Veteran’s treating physicians have associated various diagnoses with the Veteran’s gastrointestinal condition, to include colitis and Crohn’s disease. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issue of entitlement to service connection for colitis to encompass any relevant gastrointestinal disorder manifested during the appeal period. New and Material Evidence The Veteran seeks to reopen her service connection claims for infertility and colitis. Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant’s claim considering all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). “New” evidence means evidence not previously submitted to VA decision makers. “Material” evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. Colitis The issue before the Board is whether the Veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for colitis. As an initial matter, while the Board recognizes that the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012” was approved in August 2012, after the prior final denial in August 1991, and is a liberalizing act, in this case it does not entitle the Veteran to a review of her claim on a de novo basis. See Spencer v. Brown, 4 Vet. App. 283 (1993); aff’d 17 F. 3d 368 (Fed. Cir. 1994). While the Veteran’s service personnel records confirm that the Veteran was stationed at Camp Lejeune for more than 30 days during the presumptive period, her claimed colitis is not included in the list of diseases entitled to presumptive service connection. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). As such, because the liberalizing act at issue does not apply to her claimed condition, it does not create a new basis of entitlement to benefits, and therefore does entitle her to de novo review of his claims. See Spencer, 4 Vet. App. 283, 288-89. Nevertheless, the Board finds that new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for colitis. Notably, the Veteran was initially denied service connection for colitis in an August 1991 rating decision on the basis that there was no medical evidence that the Veteran’s condition manifested during service. The Veteran did not appeal or submit new and material evidence within one year of that decision; thus, the August 1991 rating decision is final. Since that time, evidence added to the claims file include the August 2016 VA examination and the Veteran’s lay statements, which suggest the Veteran’s gastrointestinal condition manifested during service. Since this evidence was not previously considered and it raises a possibility of substantiating the Veteran’s claim, it constitutes new and material evidence sufficient to reopen the claim. Infertility Likewise, the Board finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for infertility. Initially, the service connection claim for infertility was denied by way of a January 2015 rating decision on the basis of there was no evidence of a current disability; the Veteran timely appealed. Upon de novo review, the AOJ issued a Statement of the Case (SOC) in October 2016, affirming the January 2015 rating decision. The Veteran did not appeal and did not submit new and material evidence within 60 days of the October 2016 SOC. Therefore, the January 2015 rating decision is final. Since that time, the evidence added to the claims file, to include the October 2020 testimony constitutes new and material evidence, as it was not previously considered and raises a possibility of substantiating the Veteran’s claim. Thus, the claim for service connection for infertility is reopened. REASONS FOR REMAND Service Connection for Colitis The Veteran contends that she has a gastrointestinal condition, which has manifested various symptoms including constipation and diarrhea and is currently diagnosed as Crohn’s/colitis disease, that was caused by exposure to contaminated water at Camp Lejeune. The Veteran’s service personnel records demonstrate that she was stationed at Camp Lejeune and she is therefore presumed to have been exposed to contaminated water. While the Veteran’s service treatment records are unavailable, her post-service VA treatment records demonstrate that she was first diagnosed with colitis in 1990, two years after her discharge from service. Treatment records show that the Veteran has continued to receive treatment since 1990 until present day for her disability. She has undergone evaluation and treatment for gastrointestinal symptoms, to include surgical intervention, and she has been variously diagnosed with ulcerative colitis, gastroenteritis, and most recently, Crohn’s disease. During the course of her treatment, the Veteran has maintained that her symptoms first manifested during service while stationed at Camp Lejeune. In August 2016, the Veteran was afforded a VA examination to determine the nature and etiology of her gastrointestinal disorder. At that time, the examiner acknowledged the early medical treatment records and noted that the disease “takes some time” to progress to the severity the Veteran reported in 1990. However, since the Veteran’s service treatment records were missing, the examiner was unable to provide a medical opinion. The Board finds that a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran’s gastrointestinal disorder, to include whether it was caused by Camp Lejeune contaminated water exposure and specifically to include a discussion of the gastrointestinal symptoms reported in 1990. Service Connection for Infertility The Veteran contends that she manifests a disability that causes infertility, which she attributes to the contaminated water at Camp Lejeune. She indicates that during service, a doctor informed her that she would not be able to have children. Notably, the available medical treatment records are silent for any diagnoses related to infertility. However, at the October 2020 virtual Board hearing, the Veteran testified that she received treatment at a clinic in Mississippi. Those medical records are not in the claims file. Therefore, remand is required to obtain all outstanding relevant treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran and with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers referable to the treatment of the Veteran’s claimed disabilities. The AOJ should specifically attempt to obtain records from the Women’s Clinic in Clarksdale, Mississippi. The AOJ should send the Veteran a VA Form 21-4142 Authorization and Consent to Release Information and request that she provide either the records or authorization to obtain these records. Attempts to obtain this information should be documented in the record. 2. Upon records development, schedule the Veteran for a VA examination with an appropriate specialist to determine the nature and etiology of her gastrointestinal disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination. Upon review of the record and examination of the Veteran, the examiner should opine as to the following: is it at least as likely as not (i.e., at least a 50/50 degree of probability) that the Veteran’s current gastrointestinal disorder (to include Crohn’s disease and colitis) was incurred during or caused by active service, to include as due to exposure to Camp Lejeune contaminated water. The examiner should specifically discuss the Veteran’s documented gastrointestinal symptoms and diagnoses starting in 1990 and the October 2016 VA examiner’s opinion that such a condition “takes some time” to progress to the severity demonstrated in 1990. The examiner should discuss whether the Veteran’s reported symptoms during service, although not documented and not necessary to be documented for service connection purposes, are capable of medically demonstrating the onset of a current gastrointestinal disorder in service. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibilty, but rather than the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanation stating why this is so. In doing so, the examiner shall explain whether any 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. 3. Readjudicate the claims on appeal. If the claims are not granted to the Veteran’s satisfaction, provide her a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.