Citation Nr: 22010764 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-25 255 DATE: February 24, 2022 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a gastrointestinal disability is reopened. Entitlement to service connection for a gastrointestinal disability is granted. Entitlement to service connection for a low back disability is granted. FINDINGS OF FACT 1. A November 1992 rating decision, in pertinent part, denied entitlement to service connection for a stomach condition. The appellant was duly notified of the RO's decision and his appellate rights in a December 1992 letter, but did not appeal, nor was new and material evidence received within the applicable period. 2. A September 2002 rating decision, in pertinent part, denied entitlement to service connection for stomach pains, acid reflux. The appellant was duly notified of the RO's decision and his appellate rights, but did not appeal, nor was new and material evidence received within the applicable period. 3. A July 2005 rating decision, in pertinent part, determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for stomach pains, acid reflux. The appellant was duly notified of the RO's decision and his appellate rights in an August 2005 letter, but did not appeal, nor was new and material evidence received within the applicable period. 4. An October 2011 rating decision, in pertinent part, determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for gastritis. The appellant was duly notified of the RO's decision and his appellate rights, but did not appeal, nor was new and material evidence received within the applicable period. 5. Evidence received since the final October 2011 rating decision denying the claim of service connection for gastritis relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a gastrointestinal disability. 6. The evidence is in relative equipoise as to whether the appellant's current gastrointestinal disability was incurred in or is otherwise causally related to his active service. 7. The evidence is in relative equipoise as to whether the appellant's current low back disability was incurred in or is otherwise causally related to his active service. CONCLUSIONS OF LAW 1. The November 1992 rating decision denying entitlement to service connection for a stomach condition is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. The September 2002 rating decision denying entitlement to service connection for stomach pains, acid reflux, is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). 3. The July 2005 rating decision which determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for stomach pains, acid reflux, is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 4. The October 2011 rating decision which determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for gastritis is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 5. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for a gastrointestinal disability. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2021). 6. The criteria for entitlement to service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Air Force from December 1978 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, confirmed and continued the previous denial of entitlement to service connection for low back strain and determined that new and material evidence had not been received to warrant reopening of the previously denied claim of entitlement to service connection for stomach pains, acid reflux, and gastritis/gastroenteritis.. The appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2020. A transcript is of record. The Board, in pertinent part, reopened the back disability claim and remanded the matter in February 2021. A Supplemental Statement of the Case (SSOC) was issued in June 2021. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. The application to reopen the previously denied claim of entitlement to service connection for a gastrointestinal disability. A November 1992 rating decision, in pertinent part, denied entitlement to service connection for a stomach condition on the basis that there was no nexus between a current disability and an acute and transitory in-service stomach condition. The appellant was duly notified of the RO's decision and his appellate rights in a December 1992 letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. A September 2002 rating decision, in pertinent part, denied entitlement to service connection for stomach pains, acid reflux, again on the basis that there was no nexus between a current disability and an acute and transitory in-service stomach condition. The appellant was duly notified of the RO's decision and his appellate rights, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. A July 2005 rating decision, in pertinent part, determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for stomach pains, acid reflux. The appellant was duly notified of the RO's decision and his appellate rights in an August 2005 letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. An October 2011 rating decision, in pertinent part, determined that new and material evidence had not been received with respect to the claim of entitlement to service connection for gastritis. The appellant was duly notified of the RO's decision and his appellate rights, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision discussed above. Evidence received since the final October 2011 rating decision denying service connection for gastritis includes the appellant's reports of gastrointestinal symptoms continuing since separation during his July 2020 hearing and the May 2021 medical opinion, which implies that, if there were evidence of continuity of symptoms from separation to the present, a positive opinion would be returned. This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between a current gastrointestinal disability and the appellant's active service. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claims and triggers VA's duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claim of service connection for a gastrointestinal disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. For the reasons that follow, the record is sufficient to warrant granting the benefits sought with respect to the claim of service connection for a gastrointestinal disability. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a gastrointestinal disability. For the reasons that follow, the Board finds that entitlement to service connection for a gastrointestinal disability is warranted. Service treatment records reveal that the appellant was treated for gastroenteritis in April 1983. In June 2020, a private physician diagnosed the appellant with GERD and mild gastritis, but provided a speculative opinion in support of service connection, stating that the such "could be" connected to his complaints during service. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). In February 2021, the Board remanded the matter in order to afford the appellant an examination to determine the nature and etiology of his claimed gastrointestinal disability. The appellant was diagnosed with gastroesophageal reflux disease (GERD) and gastritis. The May 2021 contracted examiner then offered negative etiological opinions primarily on the basis that there was no continuity of treatment since separation. Rather, the appellant was first seen for chronic gastritis in 1991, eight years after service, and for GERD in 2001, 18 years after service. The opinions were also based on a lack of continuity of complaints, or symptoms, since service. However, the appellant has reported that he continued to experience gastrointestinal symptoms since separation. He is competent to report gastrointestinal distress and other symptoms as this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Crucially, the Board finds that the appellant has been consistent in his reports of symptoms both in the context of seeking medical treatment and in seeking VA benefits. Moreover, having had the opportunity to observe his demeanor during the July 2020 hearing, and absent anything contradictory in the record, the Board finds that the appellant's report of onset and continuation of symptoms is credible. The negative August 2021 etiological opinions essentially state that, had there been evidence of continuing symptoms since separation, positive nexus opinions would have been offered. Here, as the Board has found the appellant's reports credible, the August 2021 opinions support the claim of entitlement to service connection for a gastrointestinal disability, diagnosed as GERD and gastritis. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for a gastrointestinal disability. 2. Entitlement to service connection for a low back disability. For the reasons that follow, the Board finds that entitlement to service connection for a low back disability is warranted. Service treatment records reveal that the appellant fell on his back at the gym in March 1980 and was then placed on a temporary profile for lumbar trauma and strain. In April 2020 and July 2020, private physicians provided speculative opinions, finding that the appellant's in-service injury to the spine could have resulted in his current arthritis due to residual soft tissue weakness. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon, supra; Goss, supra; Tirpak, supra. In February 2021, the Board remanded the matter in order to afford the appellant an examination to determine the nature and etiology of his low back disability. The appellant was diagnosed with lumbosacral strain and degenerative arthritis. The May 2021 contracted examiner then offered a negative etiological opinion primarily on the basis that there was no continuity of treatment since separation. Rather, the first time the appellant sought treatment for his back was in June 2009. The opinion was also based on a lack of continuity of complaints, or symptoms, since service. However, the appellant has reported that he continued to experience low back symptoms since separation. He is competent to report such symptoms as this requires only personal knowledge as it comes through an individual's senses. Layno, supra. The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Crucially, the Board finds that the appellant has been consistent in his reports of symptoms both in the context of seeking medical treatment and in seeking VA benefits. Moreover, having had the opportunity to observe his demeanor during the July 2020 hearing, and absent anything contradictory in the record, the Board finds that the appellant's report of onset and continuation of symptoms is credible. The negative August 2021 etiological opinion essentially states that, had there been evidence of continuing symptoms since separation, a positive nexus opinion would have been offered. Here, as the Board has found the appellant's reports credible, the August 2021 opinion supports the claim of entitlement to service connection for a low back disability. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for a low back disability. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.