Citation Nr: 0006513 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-12 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a disability manifested by perianal and perirectal abscesses or Crohn's disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran had active duty service from May 1970 to March 1972. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 1998 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's request to reopen his claim for a disability manifested by perianal and perirectal abscesses and Crohn's disease. FINDINGS OF FACT 1. By a rating decision in February 1977, entitlement to service connection for a disability manifested by perianal and perirectal abscesses was denied; the veteran was advised of this determination and informed of appellate rights and procedures, but he did not file a notice of disagreement. 2. Evidence received subsequent to the February 1977 rating decision bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered to decide fairly the merits of the claim. 3. The claims file incudes a medical diagnosis of perirectal abscesses attributed to Crohn's disease and competent evidence of a nexus between such disability and active service. CONCLUSIONS OF LAW 1. The February 1977 rating decision denying entitlement to service connection for a disability manifested by perianal and perirectal abscesses is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Certain evidence received since the February 1977 rating decision is new and material, and the veteran's claim of entitlement to service connection for a disability manifested by perianal and perirectal abscesses or Crohn's disease has been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for a disability manifested by perianal and perirectal abscesses or Crohn's disease is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the claims file reveals that by a rating decision dated February 1977 the veteran's claim for entitlement to service connection for hydradenitis suppurative formerly diagnosed residuals folliculitis was denied. The veteran's attempt to reopen his claim was denied by the RO in a rating decision dated March 1987 in which the issue was recharacterized as entitlement to service connection for a skin condition. After the veteran had been diagnosed with Crohn's disease, the veteran again tried to reopen his claim. However, due to the diagnosis, the RO characterized the issues as new and material evidence to reopen for perirectal abscesses and entitlement to service connection for Crohn's disease. The rating decision dated April 1998 denied the veteran's attempt to reopen his claim for perirectal abscesses and denied the claim for service connection for Crohn's disease. It appears that the veteran contends that his perirectal and perianal abscesses were symptoms of his post-service diagnosis of Crohn's disease. In September 1998 the veteran's attempt to reopen his claim was denied, the RO characterized the issue as new and material evidence to reopen for service connected residuals of folliculitis of perineum with secondary inflammatory response and abscess now diagnosed Crohn's disease. The veteran's claim for service connection for a disability manifested by perianal and perirectal abscesses was denied in a February 1977 rating decision. The veteran was informed of that determination and advised as to appellate rights and procedures. However, he did not initiate an appeal with a timely notice of disagreement. Accordingly, the February 1977 determination became final. 38 U.S.C.A. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and reviewed. See 38 U.S.C.A. § 5108. When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge, 155 at 1363. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The veteran essentially contends that his perianal and perirectal abscesses were symptoms in service of his post- service diagnosis of Crohn's disease. While in service, the veteran was treated for at least one perirectal abscess, but was not treated for, or diagnosed with Crohn's disease. At the time of the February 1977 rating decision, the evidence of record included the veteran's service medical records and VA examinations dated February 1973 and January 1977. However, evidence received since February 1977 includes a medical opinion from Halifax Medical Specialists dated December 1997 indicating that he was being treated for perianal Crohn's disease with multiple abscesses and that there was no doubt in the examiner's mind that the symptoms of Crohn's disease began when the veteran was on active duty. The Board finds that this represents competent medical evidence of a nexus between Crohn's disease with multiple abscesses and active service, which bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156; Hodge, supra; Winters, supra; Elkins, supra. As new and material evidence has been presented, the claim is reopened. The Board must now consider whether the veteran's claim is well-grounded. In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board finds the veteran's claim for service connection for perianal and perirectal abscesses, and Crohn's disease to be well-grounded. There is evidence of inservice treatment for at least one perirectal abscess, medical evidence of a diagnosis of a current disability, and medical evidence indicating that such disability is linked to service. Accordingly, the Board finds that the requirements for a well-grounded claim have been met. 38 U.S.C.A. § 5107(a); Caluza, 7 Vet. App. at 506; Savage v. Gober, 10 Vet. App. 488 (1997). ORDER New and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a disability manifested by perianal and perirectal abscesses or Crohn's disease, and the claim is well grounded. The appeal is granted to this extent only. REMAND For the reasons discussed above, the Board has found the veteran's claim of entitlement to service connection for a disability manifested by perianal and perirectal abscesses or Crohn's disease to be well-grounded. With a well-grounded claim arises the statutory duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). While there is evidence of inservice treatment for at least one perirectal abscess, medical evidence of a diagnosis of a current disability, and medical evidence indicating that such disability is linked to service, the Board notes that there is no indication that the physician who proffered the nexus opinion reviewed the claims file. It is pertinent to note that the service medical records indicate an abscess outside of the alimentary tract, whereas the recent diagnosis of Crohn's disease was apparently based upon objective findings of abscesses in the rectum. If the medical evidence of record is insufficient, the Board is always free to supplement the record by seeking an advisory opinion or ordering a medical examination that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that a gastrointestinal examination that includes a review of the relevant medical evidence in the claims file and an opinion on the contended causal relationship is warranted. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the names and addresses of any VA or non-VA health care providers, who have provided treatment for perianal and perirectal abscesses, and Crohn's disease since service. After obtaining the necessary authorization, the RO should request any records identified (which are not already in the claims file). Any information obtained is to be associated with the claims file. 2. The veteran should be scheduled for a VA gastrointestinal examination to ascertain the nature and etiology of any perianal and perirectal abscesses that may be present. The examiner should clearly set forth an opinion as to whether it is at least as likely as not that the veteran's perianal and perirectal abscesses, or Crohn's disease, if currently present, began during or are causally linked to service, to include whether any current disability is etiologically related to the early perirectal abscess or folliculitis that was treated in July 1971, and the perirectal abscess that was treated in November 1971, while the veteran was on active duty (see service medical records). All indicated tests should be accomplished. The claims folder must be made available to the examiner for review. 3. After completion of the above, the RO should review the expanded record and determine whether the veteran's claim can be granted. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this remand is to assist the veteran and to obtain additional development. The veteran and his representative are free to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).