Citation Nr: 21041585 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 434 DATE: July 9, 2021 ORDER New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for ulcerative colitis. Entitlement to service connection for ulcerative colitis, secondary to a service-connected posttraumatic stress disorder (PTSD) disability, is GRANTED. FINDINGS OF FACT 1. A December 2004 decision denied the Veteran's claim for service connection for ulcerative colitis; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the December 2004 rating decision, for the Veteran's claim for service connection for ulcerative colitis, is neither cumulative nor repetitive of facts that were previously considered. 3. The evidence is in relative equipoise as to whether the Veteran's ulcerative colitis is proximately due to, or aggravated by, the service-connected PTSD disability. CONCLUSIONS OF LAW 1. The December 2004 rating decision that denied the Veteran's claim for service connection for ulcerative colitis is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the December 2004 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for ulcerative colitis. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2020). 3. The criteria for service connection for ulcerative colitis have been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1989 to July 1992. CLAIMS TO REOPEN Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial decision on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a) (2015). To warrant reopening, the new evidence must not be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a "low threshold" for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been submitted sufficient to reopen a claim for service connection for ulcerative colitis. In December 2004, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied the Veteran's original claim for ulcerative colitis. At that time, the AOJ relayed that the Veteran's service treatment records (STRs) did not contain treatment for, or findings of, ulcerative colitis or a digestive system condition. That same month, the AOJ notified the Veteran of the denial of service connection for ulcerative colitis. In February 2012, the Veteran submitted several articles. In an article entitled PTSD and Abdominal Pain, it was reported that illnesses that cause abdominal pain that are associated with PTSD include ulcerative colitis. In May 2013, the AOJ issued a rating decision. Therein, the AOJ granted service connection for a posttraumatic stress disorder (PTSD) disability. The Board concludes that, since the finalized December 2004 rating decision, new and material evidence has been added to the record. Specifically, the Veteran is now service connected for a PTSD disability. In February 2012, an article was associated with the claims file that indicates a correlation between PTSD and ulcerative colitis. Accordingly, the Veteran's claim for service connection for ulcerative colitis is reopened. 2. Entitlement to service connection for ulcerative colitis, secondary to a service-connected posttraumatic stress disorder (PTSD) disability, is granted. In September 2011, the Veteran submitted a VA Form 21-526. Thereby, the Veteran requested to reopen the claim for service connection for ulcerative colitis. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran's claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In November 2013, correspondence from Digestive Disorders Incorporated was associated with the claims file. Therein, a physician relayed that, "(the Veteran) is a patient of mine who has Inflammatory Bowel Disease and was recently diagnosed with generalized anxiety disorder and Post Traumatic Stress Disorder, which can aggravate Inflammatory Bowel Disease and cause Irritable Bowel Syndrome as well." In September 2016, a disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the physician reported diagnoses for irritable bowel syndrome and ulcerative colitis. In October 2016, correspondence from Digestive Disorders Incorporated was associated with the claims file. Therein, the physician relayed that, "(the Veteran) unfortunately lives with ulcerative colitis with numerous bouts of flare-ups. (The Veteran) also suffers from . . . post traumatic stress disorder which can exasperate his ulcerative colitis." In December 2016, correspondence from Digestive Disorders Incorporated was associated with the claims file. Therein, a physician relayed that, "(the Veteran) is a patient of mine, who has Ulcerative Colitis Disease in addition to Post Traumatic Stress Disorder. (The Veteran's) ulcerative colitis has more than a 50 percent chance of being exasperated due to his PTSD an also cause Irritable Bowel Syndrome as well." In February 2017, a Primary Care Treatment Note was generated at the Altoona VA Medical Clinic. At that time, a provider recommended treatment of the Veteran's anxiety and PTSD symptoms. The provider suspected that mental health treatment would benefit the Veteran's ulcerative colitis. In August 2019, correspondence from Digestive Disorders Incorporated was associated with the claims file. Therein, a physician relayed that, "(i)t is my belief that (the Veteran's) diagnosis of ulcerative colitis may very well be caused by his diagnosis of post traumatic stress disorder. In my professional opinion, high stress can trigger the symptoms of this disease." The Veteran is currently diagnosed with ulcerative colitis. As noted above, the AOJ granted service connection for PTSD in May 2013. Consequently, the first and second requisite elements for secondary service connection have been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. On numerous occasions, the Veteran's physician has opined that the service-connected PTSD aggravates the Veteran's ulcerative colitis. These opinions are supported by the medical articles that have been associated with the claims file during the claim period. Moreover, in August 2019, the physician relayed that the service-connected PTSD may have caused the ulcerative colitis. At this time, the Board finds that the evidence stands in relative equipoise as to whether the Veteran's current ulcerative colitis was caused and/or aggravated by the service-connected PTSD disability. Consequently, the final requisite element for secondary service connection for ulcerative colitis has been substantiated. See id. Accordingly, this claim for service connection for ulcerative colitis must be granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.