Citation Nr: 1602130 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 07-32 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for hepatitis C. 2. Entitlement to service connection for a pain disorder (claimed as muscle pain), to include fibromyalgia and/or chronic myalgia, and also to include as an undiagnosed illness due to service in the Persian Gulf and/or as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), diverticulitis, and/or erosive esophagitis, and also to include as an undiagnosed illness due to service in the Persian Gulf and/or as secondary to service-connected PTSD. 4. Entitlement to service connection for chronic fatigue syndrome, to include as an undiagnosed illness due to service in the Persian Gulf and/or as secondary to service-connected PTSD. 5. Entitlement to an evaluation in excess of 30 percent for PTSD. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from November 1990 to May 1991. He also had unconfirmed service from March 1981 to March 1982, as well as service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the above issues. This case was last before the Board in September 2011, at which time the Board denied an initial evaluation in excess of 30 percent for the Veteran's PTSD. The hepatitis C, fibromyalgia, gastrointestinal, chronic fatigue syndrome, and TDIU claims were remanded for further development at that time. Those claims have been returned to the Board for further appellate review at this time. As a final matter, the Board noted in the September 2011 decision that the hepatitis C claim impermissibly included a service connection claim for hemangioma of the liver, noting the difference between a viral disease and vascular malformation. The Board, therefore, remanded the hemangioma of the liver claim for a separate service connection decision as to that issue. The AOJ denied service connection for a hemangioma of the liver in a January 2015 rating decision; the Veteran was informed of that decision in a January 30, 2015 letter. As of the time of this decision, no notice of disagreement with that decision has been received; however, the Board acknowledges that the appeal period for that issue is still open. Accordingly, the Board will not take jurisdiction over the hemangioma of the liver claim at this time, as the Veteran still has time to submit a notice of disagreement with the denial of that claim, if he so wishes to do so. The claim of service connection for hepatitis C is considered reopened; that reopened claim and the claims of service connection for fibromyalgia, gastrointestinal, and chronic fatigue syndrome, and the claim for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT New evidence that tends to substantiate the claim of service connection for hepatitis C has been received since a final March 1998 rating decision that denied service connection for that claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for hepatitis C is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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) (2015). Historically, the Veteran filed a claim of service connection for hepatitis C, which was denied in a March 1998 rating decision. The Veteran was notified of that decision in a March 31, 1998 letter. The Veteran did not submit a notice of disagreement within one year of that notification letter, and while the Veteran did submit additional evidence during that one year period, that evidence was not relevant or pertinent to the Veteran's hepatitis C claim, but rather was relevant to other appellate claims that he was pursuing at that time. As no new and material evidence was received during the appeal period following the March 1998 notification letter, the March 1998 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Likewise, as the Veteran did not submit a notice of disagreement within one year of the March 1998 notification letter, the March 1998 rating decision is final. See 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2015). New and material evidence is therefore required to reopen the claim of service connection for hepatitis C. See 38 U.S.C.A. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Since the March 1998 rating decision, the Veteran submitted two statements in October 2011, wherein the Veteran reported that he believed that his hepatitis C was the result of his work while in Saudi Arabia during the Persian Gulf War. These statements, alone, are not necessarily new, as the Veteran made those statements prior to the March 1998 rating decision. However, the Veteran's statements regarding what occurred while he was in Saudi Arabia are new and material. Namely, the Veteran detailed in those statements that he worked with Iraqi prisoners-of-war, particularly in triaging those patients. He stated that he "knows [his] hepatitis C came from an accidental needle stick from an" Iraqi prisoner-of-war during the "fast and furious" triage process at that time. He also indicated that he never had a blood transfusion, used IV or other illicit drugs, or had unprotected sex. He therefore contends that his sole risk factor associated with contraction of hepatitis C was blood exposure from Iraqi prisoners-of-war in Saudi Arabia during the Persian Gulf War. In light of these additional statements and evidence respecting the presence of risk factors for hepatitis C contraction, the Board finds that the evidence is new and material, and additionally raises the necessity of obtaining a VA examination. Thus, the Board must conclude that new and material evidence which tends to substantiate the Veteran's claim of service connection for hepatitis C has been received in this case, and that claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). ORDER New and material evidence with respect to the claim of service connection for hepatitis C has been received; that claim is reopened, and to this limited extent, the appeal of that issue is granted. REMAND Initially, this case was last before the Board in September 2011, when the Board denied an initial evaluation in excess of 30 percent for PTSD. The Veteran filed another claim for that disability and it was subsequently denied by the AOJ in an August 2012 rating decision. The Veteran submitted a timely October 2012 notice of disagreement with that decision. As a timely notice of disagreement with the claim for increased evaluation for PTSD has been received, the Veteran has appropriately initiated the appellate process respecting that claim, and VA has a duty to issue a statement of the case as to that issue so that the Veteran may complete an appeal by filing a Substantive Appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the claim for increased evaluation of the Veteran's PTSD is remanded at this time. In light of the PTSD claim being remanded above, the Veteran's TDIU claim is intertwined with that claim must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Respecting the hepatitis C claim, as noted above, the Board has determined that the evidence of record-particularly the evidence regarding the presence of risk factors for contraction of hepatitis C-meets the minimum threshold for obtaining a VA examination of that condition at this time. That claim is remanded at this time for such to be accomplished. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Regarding the fibromyalgia claim, the Board remanded that claim in September 2011 in order for a VA examination to be provided; such was provided in May 2012. During that examination, the examiner noted that the Veteran did not meet the criteria for a diagnosis of fibromyalgia, but rather was diagnosed with chronic myalgia. He then opined that the Veteran's condition was less likely as not due to service, because he "does not meet criteria for fibromyalgia[, rather] he has chronic myalgia and joint pains which are probably related to hepatitis C and DJD." The Board notes that there are several instances of diagnosis of fibromyalgia in the Veteran's VA and private treatment records of record; the May 2012 examiner does not discuss the veracity of those diagnoses, nor does he address whether the Veteran's chronic myalgia is related to his service, only stating that such is "probably due to" hepatitis C and DJD without explaining that speculative conclusion. The examination and medical opinion is woefully inadequate. Likewise, the Veteran underwent a VA examination for his claimed IBS at that same time. The examiner noted that the Veteran did not have a diagnosis of IBS, although he noted a diagnosis of diverticulitis in 1992, noted a history of diagnosis of GERD since at least 1997, and that an upper endoscopy noted a diagnosis of erosive esophagitis in 2003. The examiner then opined that the Veteran's gastrointestinal disorder was less likely due to military service, because "he has no non-specific symptoms but none consistent with IBS." Aside from the double negative and the incredibly difficult-to-understand rationale, the Board notes that opinion does not address any of the noted potentially present gastrointestinal disorders that are not IBS, and whether such are related to military service. That examination and medical opinion is also woefully inadequate. Finally, the Veteran underwent a VA examination of his claimed chronic fatigue syndrome claim that same date as well. After examination, wherein it was unclear whether the Veteran was diagnosed with any disorder at all, the examiner opined that the Veteran's condition was less likely due to military service, because "he does not meet the criteria for chronic fatigue syndrome[, rather] suspect [that] his fatigue is related to PTSD, insomnia and hepatitis C." Again, the examiner gives no rationale for why the Veteran does not meet the criteria for diagnosis, and again relates the symptom of fatigue to either nonservice-connected hepatitis C or insomnia-the Board is unclear whether the Veteran was being diagnosed with insomnia or whether that is also a symptom of some larger condition-or his service-connected PTSD, which could significantly impact the evaluation and rating of the Veteran's PTSD. Clearly, that examination and medical opinion are also woefully inadequate. In light of the woeful inadequacy of and the above-noted significant deficiencies with the requested and obtained VA examinations, the Board finds that the fibromyalgia, chronic fatigue, and gastrointestinal disorder claims must be remanded in order to obtain additional VA examinations from qualified medical specialists for those claimed disorders such that adequate medical examinations and opinions can be obtained, and to fully comply with the Board's previous remand instructions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). On remand, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ should readjudicate the issue of entitlement to an evaluation in excess of 30 percent for PTSD. The AOJ is directed to promulgate a statement of the case on that issue and to provide the appellant with the appropriate notice of appellate rights. If the claim is not resolved to the appellant's satisfaction, he should be provided with a statement of the case and an appropriate opportunity to respond thereto. The issue should be returned to the Board only if a timely substantive appeal is received. 2. Obtain any relevant VA treatment records from the Birmingham VA Medical Center, or any other VA medical facility that may have treated the Veteran, since August 2012 and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his hepatitis C; gastrointestinal, including irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), diverticulitis, and/or erosive esophagitis; pain disorder, including fibromyalgia, myalgia and/or muscle pains; and, chronic fatigue syndrome disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Schedule the Veteran for a VA infectious diseases examination with an appropriate specialist/hepatologist in order to determine whether his hepatitis C is related to military service. The claims file must be made available to and be reviewed by each of the examiners in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. During the examination, the examiner should obtain a full and complete list of all risk factor exposures during and after military service. After review of the claims file and examination of the Veteran, the examiner should opine whether the hepatitis C more likely, less likely, or at least as likely as not (50 percent or greater probability) is a result of military service, to include blood exposure during the Persian Gulf War when he worked with Iraqi prisoners-of-war in Saudi Arabia. The examiner is to take as conclusive fact that the Veteran was exposed to blood during his service as a nurse. The examiner must, at minimum, discuss the likelihood that the Veteran's hepatitis C was contracted during military service because of that risk factor. The examiner should additionally address any other potential risk factors alleged in the claims file, or the lack of any other potential risk factors other than blood exposure during service. The examiner should address any other pertinent evidence of record, including the Veteran's lay statements. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA examination with an appropriate pain disorder specialist in order to determine whether the Veteran has fibromyalgia and whether it is related to service or to a service-connected disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner is asked to indicate whether the Veteran has a diagnosis of fibromyalgia. If the examiner determines that the Veteran does not have a diagnosis of fibromyalgia, then the examiner should address whether the Veteran has any other pain disorder such as chronic myalgia. The examiner should also address whether the Veteran had fibromyalgia in the past but that disorder has since resolved, or whether the diagnoses of fibromyalgia in the private and VA treatment records are mis- or inappropriate diagnoses of that condition. If such is a mis- or inappropriate diagnosis, then the examiner must provide a rationale for that conclusion. For any pain disorder found, including fibromyalgia or chronic myalgia, the examiner is then asked to opine whether any pain disorder found, more likely, less likely, or at least as likely as not (50 percent or greater probability) arose during or was the result of military service, to include as a result of his service in the Persian Gulf and/or Saudi Arabia. Then, the examiner should then opine whether any pain disorder found, is more likely, less likely, or at least as likely as not (a) caused by; or (b) aggravated (i.e., permanently worsen beyond the normal progression of that disease) by the Veteran's service-connected PTSD, to include any symptomatology associated with that disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should discuss all evidence in the claims file that is pertinent to the fibromyalgia claim, including all previous VA examination reports, VA treatment records, and private treatment records. The examiner should additionally address the Veteran's lay statements of record, particularly as they pertain to onset of symptomatology and any continuity of symptomatology since discharge from service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Schedule the Veteran for a VA examination with an appropriate specialist in order to determine whether he has chronic fatigue syndrome and if so, whether such is related to service or his service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should specifically address whether the Veteran has a separate and distinct diagnosis of chronic fatigue syndrome, or whether the Veteran's claimed fatigue symptoms are merely symptoms associated with his PTSD. The examiner should also consider whether the Veteran's fatigue is a symptom of any other claimed condition on appeal, particularly hepatitis C. If the examiner determines that the Veteran does not have a diagnosis of chronic fatigue syndrome but rather his claimed fatigue symptoms are related to some other condition, the examiner should clearly state the rationale for that conclusion, and should endeavor to assign those fatigue symptoms to a single disease entity, whichever condition that may be. For any disorders found, including chronic fatigue syndrome, the examiner should then opine whether those disorders found more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to military service, to include as a result of his service in the Persian Gulf and/or Saudi Arabia. Next, the examiner should then opine whether those disorders found on examination are (a) caused by; or, (b) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by the Veteran's service-connected PTSD, to include any symptomatology associated with that disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should discuss all evidence in the claims file that is pertinent to the chronic fatigue claim, including all previous VA examination reports, VA treatment records, and private treatment records. The examiner should additionally address the Veteran's lay statements of record, particularly as they pertain to onset of symptomatology and any continuity of symptomatology since discharge from service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 7. Schedule the Veteran for a VA examination with an appropriate specialist/gastroenterologist in order to determine whether the claimed gastrointestinal disorder is related to military service or a service-connected disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should identify all gastrointestinal disorders found, to include gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), diverticulitis, and/or erosive esophagitis. Then, the examiner should opine whether any gastrointestinal disorders found, including gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), diverticulitis, and/or erosive esophagitis, more likely, less likely or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, to include as a result of his service in the Persian Gulf and/or Saudi Arabia. Next, the examiner should then opine whether any gastrointestinal disorders found on examination are (a) caused by; or, (b) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by the Veteran's service-connected PTSD, to include any symptomatology associated with that disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should discuss all evidence in the claims file that is pertinent to the gastrointestinal claim, including all previous VA examination reports, VA treatment records, and private treatment records. The examiner should additionally address the Veteran's lay statements of record, particularly as they pertain to onset of symptomatology and any continuity of symptomatology since discharge from service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 8. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims of service connection for hepatitis C; chronic fatigue syndrome; pain disorder, including fibromyalgia and/or myalgia; and, gastrointestinal, including irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), diverticulitis, and/or erosive esophagitis, disorders, as well as the claim of entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs