Citation Nr: 22016376 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-42 643 DATE: March 22, 2022 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for gastric ulcers (claimed as stomach or duodenal ulcer) is granted. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) with alcohol use is remanded. Entitlement to service connection for gastric ulcers is remanded. FINDING OF FACT 1. In an August 2017, the Veteran's claim of entitlement to service connection for stomach ulcers was denied. The VA did not receive an appeal of this decision or any new and material evidence within 60 days of notification, making the August 2017 adjudication final. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the August 2017 adjudication and relates to unestablished facts necessary to substantiate the service connection claim on appeal. CONCLUSION OF LAW 1. The August 2017 rating action denying service connection for gastric ulcers is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence had been received since August 2017 to reopen the claims of entitlement to service connection for gastric ulcers, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office. In May 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is included in the record and has been reviewed. New and material evidence having been received, the petition to reopen the claim of service connection for gastric ulcers (claimed as stomach or duodenal ulcer) is granted. New and material evidence having been received, the petition to reopen the claim of service connection for gastric ulcers is granted. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. "New and material evidence" can be neither cumulative nor redundant of the prior final decision's evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency's duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The August 2017 rating action denied the Veteran's claim for service connection for stomach ulcers due to a lack of evidence showing a nexus between in-service acute gastritis and current ulcers. At the time of that decision, the evidence of record included military personnel and service treatment records from February 1983 to February 1986, VA examinations from May 1988 and April 2015, VA treatment records from June 2013 to April 2017, and the Veteran's lay statements from prior to August 2017. The evidence received since August 2017 includes evidence related to establishing a nexus, or a causal relationship, between the Veteran's active service and the current ulcers. This evidence included VA treatment records from April 2017 to April 2020 and the May 2021 Board hearing transcript. This evidence is new and material because it relates to unestablished facts necessary to substantiate the service connection claim. The Veteran provided additional lay evidence related to current disability and its nexus to active service. The claim is reopened. REASONS FOR REMAND 1. Increased rating greater than noncompensable for left ear hearing loss is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During a May 2021 hearing, the Veteran reported continuing to receive VA treatment for the disability on appeal, including a hearing examination within the last year. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The Veteran's testimony suggests there may have been an increase in hearing loss symptomology since the time of the last VA examination. A current examination is required. 2. Increased rating greater than 50 percent for post-traumatic stress disorder (PTSD) with alcohol use is remanded. During the May 2021 hearing, the Veteran asserted that the PTSD disability has increased in severity since the Veteran was last examined by VA. The Veteran reported being fired from a job due to an altercation with another worker that probably would have escalated into a physical fight if someone had not stepped in. The Veteran testified that such instances had had happened more than once over the prior couple of years. The Veteran also testified to isolation from other people and further estrangement from family relationships. The Veteran also testified that, due the ongoing pandemic, there has been no recent group sessions or other VA treatment. The last time the PTSD was evaluated for compensation and pension purposes was in March 2020. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the PTSD disability. 3. Service connection for gastric ulcers is remanded. The Board cannot make a fully informed decision on the issue of service connection for gastric ulcers because no VA examiner has considered all the relevant evidence of record. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In April 2015, a VA examiner provided a medical opinion, but the opinion does not consider all the relevant evidence of record, including recent testimony. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The opinion also does not consider all raised theories of entitlement, including the role of the Veteran's service-connected PTSD on causing or aggravating the ulcers. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 104344 (Fed. Cir. 1994). Unfortunately, although an attempt has been made to obtain the Veteran's service treatment records, this has so far been unsuccessful. This is documented in the claims file in July 2017. The Veteran declined a separation examination in February 1986. The Veteran denied pertinent symptoms on a December 1991 reserve examination. The Board notes other relevant evidence in the record that a VA examiner should address. In June 1985, for example, the Veteran reported to a military about being hospitalized within the previous five years and severe bleeding after a cut or tooth loss but did not provide more written details. In April 1988, the Veteran reported multiple in-service hospitalizations for an ulcer condition. The Veteran reported being transferred to the base hospital in 1985, from there to Clark Air Force Base in Philippines, from there to Tripler Army Hospital in Hawaii, and then to San Francisco, California in 1986. The May 1988 VA examination report noted May and June 1987 endoscopy reports confirming the presence of a duodenal ulcer. In August 1989, the Veteran was treated for acute gastritis. In August 2014, the Veteran asserted developing bleeding ulcers due to military stress. The Veteran is service connected for PTSD. Finally, at the May 2021 Board hearing, the Veteran denied ulcers prior to service but affirmed ulcer symptoms, on and off, ever since service. The Veteran testified to current, stress-induced symptom flareups, lasting 24-48 hours, a recent visit to a VA emergency room, and treatment with Zantac. A new VA examination, addressing all relevant evidence and all raised theories of entitlement, is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA records and identified pertinent private treatment records to the extent possible. The Board is particularly interested in the Veteran's VA treatment records for the period from April 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected left ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. 4. Schedule the Veteran for a VA examination for gastric ulcer disorder. The examiner must review the claims file, including April 1988 and August 2014 lay statements from the Veteran, the May 1988 and April 2015 VA examinations, the May 2021 Board hearing transcript, and a copy of this remand order. The Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand order. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Is the Veteran's current gastric ulcer disorder at least as likely as not related to service? (b.) Is the Veteran's current gastric ulcer disorder at least as likely as not proximately due to service-connected PTSD? (c.) Is the Veteran's current gastric ulcer disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD? Provide a rationale to support the opinions. (Continued on the next page) In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as post-service symptoms. Stated another way, do the Veteran's reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.