Citation Nr: 22017448 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-16 353 DATE: March 25, 2022 ORDER As new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastroenteritis/colitis disorder, the claim is reopened. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for gastroenteritis (also claimed as colitis) is remanded. FINDING OF FACT Evidence associated with the claims file since the January 2012 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for gastroenteritis. CONCLUSION OF LAW The criteria for reopening a final denial of service connection for gastroenteritis are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to May 1983 and from August 1983 to December 1992. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The record was held open for 60 days for the submission of additional evidence. A copy of the transcript is of record. As new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastroenteritis/colitis disorder, the claim is reopened. In a rating decision of January 2012, the RO denied the Veteran's claim for service connection for gastroenteritis based on examination finding of no nexus to service. The Veteran was informed of the rating decision and his appellate rights. The Veteran did not provide a notice of disagreement (NOD) or provide new and material evidence within one year of the rating decision promulgation. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Hence, the rating decision of January 2012 is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 19.20, 19.52, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by submitting new and material evidence. 38 U.S.C. § 5108 (2012). 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 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The evidence received includes his hearing testimony, where he asserted that he had stomach problems in service because of the food he ate, and that the symptoms got worse over the years. The Board presumes this statement to be credible only for the purposes of reopening the claim. The Board finds this evidence relating to his gastroenteritis disorder is new and material. As the Board finds that the evidence received since the January 2012 rating decision is new and material and raises a reasonable possibility of substantiating the claim for gastroenteritis, the claim is thus, reopened. 38 U.S.C. § 5107 (2012); Annoni v. Brown, 5 Vet. App. 463 (1993). REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. 2. Entitlement to service connection for gastroenteritis/colitis is remanded. The Veteran has been diagnosed with GERD and gastroenteritis during the appeal period. He contends that said disabilities were incurred in service and continued. Specifically, during his Board hearing, he testified to having to eat "too fast" in Boot Camp, and he developed stomach problems, including vomiting and diarrhea, abdominal pain, bloody stool, as a result. Moreover, the foods eaten in Germany and Oklahoma caused indigestion. In 1989 he was given medication, which worsened his condition. His symptoms has continued after service. The Veteran's service treatment records (STRs) confirm the in-service complaint and treatment of gastrointestinal issues. The Veteran was afforded a VA Stomach, Duodenum, and Peritoneal Adhesions examination in January 2011 and an Esophageal Conditions (Including gastroesophageal reflux disease (GERD), hiatal hernia, and other esophageal disorders) examination in June 2013. Both examiners proffered negative nexus to service for GERD and gastroenteritis. While both examiners also based their rationales on lack of medical evidence showing continued treatment; thus, negating the Veteran's statements of continuity of symptomology, the June 2011 examiner acknowledged that gastroenteritis is often underreported, especially mild cases. The Board herein finds the examinations inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). New examinations are thus warranted. The Board emphasizes that it is not determining whether or not the Veteran's statements regarding continuity of symptoms are credible at this time, as the additional development set forth in the directives below could impact that determination. Although the Board is requesting medical opinions regarding his lay assertions, this is for thoroughness and not based on a finding that they are credible. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran's claim file to a qualified clinician so that a VA examination may be provided to determine the nature and severity of his GERD and gastroenteritis/colitis disorders. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. November 1986 complaint of nausea, soft stools, and "feels like food poisoning." b. February 1989 complaint of mild stomach discomfort with "churning and churning," and diarrhea for three days. c. June 1989 complaints of bowel problems, for which the clinician prescribed an increase of clear liquids and a Jell-o diet. d. November 2021 Board testimony. The clinician is asked to: a. Determine whether it is likely or not that GERD had its onset in and/or is otherwise etiologically related to his periods of active service. b. Determine whether it is likely or not that gastroenteritis/colitis had its onset in and/or is otherwise etiologically related to his periods of active service. For the purposes of this remand only, and for the limited purpose of providing the medical opinion, the examiner should assume that the Veteran's lay assertions of having symptoms in service and that continued after service are true. If there is a medical reason to doubt their veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner is advised that an opinion based solely on lack of documentation in service and since is not sufficient and that the Veteran's assertion of continuity of symptoms since service must be addressed in the opinion. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. (Continued on the next page) If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, adjudicate the claims. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.