Citation Nr: 1124589	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  09-38 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an effective date earlier than August 21, 2006, for the establishment of service connection for post-traumatic stress disorder (PTSD).

2.  Entitlement to an increased initial rating in excess of 30 percent disabling for service-connected PTSD, prior to January 8, 2007, to include entitlement to individual unemployability for the entire appeal period.

3.  Entitlement to service connection for hyperinsomnia with sleep apnea, also claimed as due to an undiagnosed illness.  

4.  Whether new and material evidence has been received to reopen a service connection claim for polyarthritis of the left lower extremities claimed as musculoskeletal and joint problems, and if so, whether service connection is warranted.  

5.  Whether new and material evidence has been received to reopen a service connection claim for polyarthritis of the right lower extremities claimed as musculoskeletal and joint problems, and if so, whether service connection is warranted.  

6.  Whether new and material evidence has been received to reopen a service connection claim for sinusitis, and if so, whether service connection is warranted.    

7.  Whether new and material evidence has been received to reopen a service connection claim for allergic rhinitis, and if so, whether service connection is warranted.   

8.  Whether new and material evidence has been received to reopen a service connection claim for refractive error claimed as loss of vision, and if so, whether service connection is warranted. 

9.  Whether new and material evidence has been received to reopen a service connection claim for swelling of the left face, and if so, whether service connection is warranted.          


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

M. Pansiri, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1982 to July 1992, during peacetime and the Persian Gulf War.  He served in the Southwest Asia theater of operations from October 31, 1990, to June 8, 1991.  

This appeal comes before the Board of Veterans' Appeals (Board) from September 2004, February 2007, and October 2008 rating decisions of the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, Regional Office (RO).  The Veteran disagreed with such decisions and subsequently perfected appeals.   

The requirement of submitting new and material evidence to reopen a claim is a material legal issue the Board is required to address on appeal, despite the RO's actions.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996).  As such, the issues regarding polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems, sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face, are appropriately captioned as above.  

The Board notes that the agency of original jurisdiction determined that the Veteran's individual unemployability claim was moot due to the grant of a 100 percent disability rating for the Veteran's service-connected PTSD disability.  See September 2009 Statement of the Case.  However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that although no additional disability compensation through a total disability rating based on individual unemployability (TDIU) may be paid when a total 100 percent schedular disability rating is already in effect, VA may still potentially consider a TDIU claim in such an instance where a 100 percent schedular disability rating is not in effect.  See also VAOPGCPREC 6-99.  Thus, the individual employability claim is as captioned above.

The herein reopened issues of entitlement to service connection for polyarthritis of the left and right lower extremities claimed as musculoskeletal and joint problems; the issues of entitlement to an increased initial rating in excess of 30 percent disabling for service-connected PTSD, prior to January 8, 2007, to include entitlement to individual unemployability for the entire appeal period; entitlement to service connection for hyperinsomnia with sleep apnea, also claimed as due to an undiagnosed illness; and whether new and material evidence has been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran filed a claim for entitlement to service connection for PTSD, which was denied in a final December 2001 rating decision. 

2.  In May 2004, the Veteran filed a claim to reopen, which was denied by the RO in a final September 2004 rating decision as the Veteran did not perfect his appeal in a timely manner following a statement of the case. 

3.  The Veteran filed a timely notice of disagreement with the effective date assigned in the December 2007 rating decision that granted service connection for PTSD based on the claim to reopen filed by the Veteran on August 21, 2006.

4.  In a December 2001 rating decision, the RO denied the Veteran's service connection claims for polyarthritis of the left and right lower extremities claimed as musculoskeletal and joint problems; the Veteran was provided notice of the decision and of his appellate rights and did not appeal the December 2001 rating decision; and such decision became final.

5.  In a September 2004 rating decision, the RO determined that new and material evidence had not been received to reopen the service connection claims for polyarthritis of the left and right lower extremities claimed as musculoskeletal and joint problems; the Veteran was provided notice of the decision and of his appellate rights and did not appeal the September 2004 rating decision; and such decision became final.

6.  The evidence received since the RO's September 2004 rating decision is not duplicative or cumulative of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's service connection claims for polyarthritis of the left and right lower extremities claimed as musculoskeletal and joint problems.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than August 21, 2006, for the grant of service connection for PTSD has not been met.  38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(r), 3.155, 3.350, 3.351, 3.352, 3.400 (2010). 

2.  The RO's unappealled September 2004 decision that determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for polyarthritis of the left lower extremities claimed as musculoskeletal and joint problems is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

3.  Evidence received since the RO's September 2004 rating decision is new and material; the claim of entitlement to service connection for polyarthritis of the left lower extremities claimed as musculoskeletal and joint problems is therefore reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).  

4.  The RO's unappealled September 2004 decision that determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for polyarthritis of the right lower extremities claimed as musculoskeletal and joint problems is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

5.  Evidence received since the RO's September 2004 rating decision is new and material; the claim of entitlement to service connection for polyarthritis of the right lower extremities claimed as musculoskeletal and joint problems is therefore reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Without deciding whether the notice and development requirements of the VCAA have been satisfied with respect to the Veteran's new and material evidence claims for service connection for polyarthritis of the left and right lower extremities claimed as musculoskeletal and joint problems, the Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claims.  This is so because the Board is taking action favorable to the Veteran by reopening his claims.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Veteran is also appealing the effective date for the award of service connection for his PTSD disability.  The United States Court of Appeals of the Federal Circuit (Federal Circuit) has held that once an underlying claim is granted, further notice as to downstream issues, such as the effective date, is not required.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (VA's notice obligations do not apply to claims that could not be substantiated through notice and assistance).  Nonetheless, in a August 2008 letter, the RO specifically provided the Veteran with information concerning the assignment of effective dates.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the claims file contains the Veteran's service treatment records (STRs), post-service VA and private medical records, and statements submitted by or on behalf of the Veteran.  All identified and available treatment records have been secured.  Significantly, the record does not otherwise indicate any additional obtainable evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Legal Criteria and Analysis of the Earlier Effective Date Claim

The relevant regulations provide that the effective date of an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance (where the reopening is not due to new service medical records), or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  

Any communication or action indicating an intent to apply for a benefit may be considered an informal claim.  38 C.F.R. § 3.155 (2010).  Further, VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim of service connection has already been allowed.  38 C.F.R. § 3.157 (2010).  "Application" is not defined in the statute; however, regulations consider "claim" and "application" as equivalent and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p) (2010); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).  The U.S. Federal Circuit Court of Appeals, in Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999), noted that for purposes of establishing the requirements and procedures for seeking veterans benefits, a claim, whether formal or informal, must be in writing in order to be considered a "claim" or "application" for benefits.  The Court also pointed out that all that was required was that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department" and "identify the benefits sought."

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this case, the Veteran seeks an effective date earlier than August 21, 2006, for a grant of service connection for PTSD.  As stated above, the law and regulations provide that the effective date of an award based on a reopened claim for disability benefits, as is the case here, shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r) (2010) (emphasis added).  In this case, the evidence is clear that the Veteran filed a claim for entitlement to service connection for PTSD which was denied in a final, unappealed September 2004 rating decision.  In this regard, the Veteran initially filed a claim for service connection for a psychiatric disability, to include PTSD, in September 2000.  The service connection claim was denied in a December 2001 rating decision, and the Veteran did not appeal such decision.  

In May 2004, the Veteran filed an application to reopen the service connection claim for a psychiatric disability, to include PTSD.  In a September 2004 rating decision, the RO determined that new and material evidence had not been received to reopen a service connection claim for a psychiatric disability, to include PTSD.  The Veteran filed a notice of disagreement disagreeing with such denial.  See November 2004 "Statement in Support of Claim," VA Form 21-4138 (Notice of Disagreement).  However, following the issuance of a Statement of the Case in September 2005, the Veteran did not file a timely substantive appeal to perfect his appeal of such decision.  See September 2005 Statement of the Case; August 2006 "Appeal to the Board of Veterans Appeals," VA Form 9.  Since the August 2006 "appeal" correspondence was received more than 60 days following the September 2004 statement of the case and was not received within one year from the time he received notice of the September 2004 rating decision, the September 2004 rating decision became final.  The August 2006 correspondence from the Veteran was construed as a new application to reopen his service connection claim for a psychiatric disability, to include PTSD.  See September 2006 Notice Letter from the RO.  A complete review of the claims folder is negative for any other statement from the Veteran that can be construed as a timely substantive appeal.    

Further, the Board emphasizes that the actual date that entitlement arose is of no issue in the present case, as even assuming that entitlement to PTSD arose at an earlier time, the law mandates that the effective date shall be the later of the date entitlement arose or the date his claim to reopen was received.  38 C.F.R. § 3.400(r) (2010).  Thus, because the Veteran's claim to reopen was received on August 21, 2006, the effective date of the grant of service connection cannot precede this date as a matter of law. 

Consequently, there is no legal basis upon which to grant an effective date prior to August 21, 2006, for the grant of service connection for PTSD.  The reasonable doubt doctrine is not applicable, as the preponderance of the evidence is against the Veteran's claim.  See 38 U.S.C.A. § 5107(b).

Legal Criteria and Analysis of the Earlier Effective Date Claim

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302.  If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. 
§ 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).    

Evidence is considered "new" if it was not previously submitted to agency decisionmakers.  38 C.F.R. § 3.156(a).  "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  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.  Id.  For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).

By way of history, the Veteran initially filed a service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems in September 2000.  In a December 2001 rating decision, the RO denied service connection for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems on the basis that that polyarthritis of the bilateral lower extremities was not incurred in or caused by service and was not manifested to a compensable degree within one year of separation from service.  Because the Veteran did not submit a Notice of Disagreement to initiate appellate review and a Substantive Appeal to perfect an appeal of the RO's December 2001 rating decision, that determination became final, based on the evidence then of record.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).  

In May 2004, the Veteran initially filed an application to reopen the service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  In a September 2004 rating decision, the RO determined that new and material evidence had not been received to reopen the service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  The Veteran disagreed with the decision and filed a timely notice of disagreement.  See November 2004 "Statement in Support of Claim," VA Form 21-4138.  However, following the issuance of a Statement of the Case in September 2005, the Veteran did not file a timely substantive appeal to perfect his appeal of the September 2004 Rating Decision.  See September 2005 Statement of the Case; August 2006 "Appeal to the Board of Veterans Appeals," VA Form 9.  Because the Veteran did not submit a timely Substantive Appeal to perfect an appeal of the RO's September 2004 rating decision, that determination became final, based on the evidence then of record.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).  This is the last final decision regarding the Veteran's service connection claims for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems. The evidence of record when the RO decided the claim in September 2004 included the Veteran's service treatment records (STRs), post-service VA treatment records, and statements submitted by the Veteran. 

Evidence associated with the claims file since the prior last final decision regarding the service connection claims for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems (September 2004 rating decision) includes statements and written argument submitted by or on behalf the Veteran, VA and private treatment records, and a November 2000 Social Security Administration (SSA) determination, received January 2008. 

On review, the Board finds that new and material evidence has been received to reopen the service connection claims for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  In this regard, the evidence includes statements from the Veteran that he suffered from joint pains since 1993, which were not of record at the time of the September 2004 rating decision.  See November 2000 SSA determination, received January 2008.  Presuming the Veteran's statements credible for the purpose of reopening the service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems, the Board finds that such evidence, either by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. 3.156(a).  The Veteran's statements are material in that they suggest that his polyarthritis of the bilateral lower extremities may have been incurred during service and suggest continuity in the Veteran's symptomatology, and therefore raises a reasonable possibility of establishing the claim.  See id.  As such, the Board finds that the November 2000 SSA determination, received January 2008, is considered new and material for the purpose of reopening the service connection claims for polyarthritis of the bilateral lower extremities, and such claims are reopened.    


ORDER

Entitlement to an effective date earlier than August 21, 2006, for the establishment of service connection for PTSD is denied.

New and material evidence to reopen a claim of entitlement to service connection for polyarthritis of the left lower extremities claimed as musculoskeletal and joint problems, has been received; to this extent, the appeal is granted.

New and material evidence to reopen a claim of entitlement to service connection for polyarthritis of the right lower extremities claimed as musculoskeletal and joint problems, has been received; to this extent, the appeal is granted.


REMAND

The Board has herein reopened the Veteran's service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  The Veteran also seeks entitlement to an increased initial rating in excess of 30 percent disabling for service-connected PTSD, prior to January 8, 2007, to include entitlement to individual unemployability for the entire appeal period, and entitlement to service connection for hyperinsomnia with sleep apnea, also claimed as due to an undiagnosed illness.  The Veteran also applied to reopen his service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face.  Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010).

New and Material Evidence Claims 

In a September 2004 rating decision, the RO determined that new and material evidence had not been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face.  In the Veteran's "Statement in Support of Claim" (VA Form 21-4138), received November 2004, the Veteran indicated that he disagreed with the decision of September 3, 2004 (the September 2004) rating decision with respect to the claims.  The Board construes this statement as a timely notice of disagreement with the RO's September 2004 rating decision determining that new and material evidence had not been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face.

Upon further review of the evidence of record, the Board notes that there is no indication that the RO took further action after receiving the Veteran's November 2004 notice of disagreement with the September 2004 rating decision with regard to whether new and material evidence has been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face.  In other words, the RO has not issued Statement of the Cases (SOC) as required by 38 C.F.R. § 19.29 and Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a notice of disagreement is filed, but a SOC has not been issued, the Board must remand the claim so that a SOC may be issued).  As such, a remand is necessary regarding whether new and material evidence has been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face, in order for the AMC/RO to issue a SOC regarding such claims as required under 38 C.F.R. 
§ 19.29 and Manlincon.        


Service Connection Claims

Generally, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a disorder noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  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).

Service connection generally requires competent and credible evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

In addition, compensation may be paid to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011, following such service.  38 U.S.C.A. § 1117 (West 2002 & Supp. 2010); 38 C.F.R. § 3.317 (2010).  Service connection may be granted when the evidence establishes: (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.

A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B)(1).
Service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastroesophageal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  The undiagnosed illness must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.  38 C.F.R. § 3.317(a)(1)(i)).  A chronic disability for purposes of 38 U.S.C.A. § 1117 is one that has existed for 6 months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period.  38 C.F.R. § 3.317(a)(3).

The Board notes that effective July 13, 2010, VA has amended its adjudication regulations governing  presumptions for certain Persian Gulf War Veterans.  Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses.  Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).  These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date.  See 75 Fed. Reg. 61,997 (Oct. 7, 2010).

With regard to the Veteran's service connection claim for sleep apnea, he is currently diagnosed with sleep apnea with daytime somnolence.  See July 2007 Primary Care Follow-Up Note, San Juan VAMC.

Further, although the Veteran's STRs are negative for complaints, treatment, and/or diagnoses of a sleep apnea disability or any sleep disorder condition, the Veteran reported having continuous sleep problems since his service in the Southwest Asia theater of operations.  See January 2008 "Statement in Support of Claim," VA Form 21-4138 (Claim).  The Veteran is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  
  
As no medical opinion regarding whether the Veteran's sleep apnea disability is  related to his service is of record, the Board finds that a remand is required to obtain such opinion.  Based on the foregoing, a VA exam is necessary to ascertain whether the Veteran's currently diagnosed sleep apnea disability is related to service.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010).  The fulfillment of the duty to assist requires a thorough and contemporaneous medical examination that considers prior medical examinations and treatment in order to conduct a complete evaluation of the Veteran's claim.  38 C.F.R. § 4.2 (2010).  Where further evidence, or clarification of the evidence, is needed for proper appellate decision-making, a remand to the RO is required.  38 C.F.R. § 19.9(a)(1) (2010).

With regard to the Veteran's service connection claim for polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems, the Veteran claims such conditions are the result of his active duty service.  In the alternative, the Veteran claims that his polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems is due to undiagnosed illness or other qualifying, chronic disability, pursuant to 38 U.S.C.A. § 1117.  

Review of the Veteran's STRs are negative for any complaints, treatment, and/or diagnoses of any polyarthritis, musculoskeletal problems, and/or  joint problems of the bilateral lower extremities.  However, the Veteran did report generalized joint pain post-service since 1993. 

Further review of the evidence of record is negative for any examination regarding extent and etiology of polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  As such, a remand is necessary for such examination and opinions.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010).     

Increased Rating and Individual Unemployability Claims 

Review of the evidence of record and the Veteran's statements indicate that he receives social security benefits for his service-connected psychiatric disability.  See September 2009 "Statement in Support of Claim," VA Form 21-4138.   Further review of the record indicates that the claims folder contains a November 2000 decision from the SSA; however, the Veteran's complete SSA records are not of record.  The treatment records from the Social Security Administration (SSA) may support his increased rating claim for PTSD.  VA is, therefore, on notice of records that may be probative to the claim.  See Robinette v. Brown, 8 Vet. App. 69 (1995).  Consequently, the Veteran's complete SSA records should be obtained and associated with the claims file.  

In addition, the Veteran's remaining claim, that of entitlement to individual unemployability for the entire appeal period, is found to be inextricably intertwined with the issues remanded herein.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered).  Thus, action on the individual unemployability claim is deferred pending resolution of the service connection claims and increased rating claim for PTSD.


Accordingly, to ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following action:

1.  Since the Veteran filed a timely notice of disagreement with the RO's September 2004 rating decision determining that new and material evidence had not been received to reopen service connection claims for sinusitis, allergic rhinitis, refractive error claimed as loss of vision, and swelling of the left face, the RO should provide the Veteran and his representative with a SOC and notification of his appeal rights as required by 38 C.F.R. § 19.29 and Manlincon, 12 Vet. App. 238.  If the Veteran perfects an appeal as to any or all of these claims, return the case to the Board in accordance with the usual appellate procedures. 

2.  The AMC/RO should obtain the Veteran's SSA records, and associate these records with the claims folder.    
	
To the extent there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made.  The Veteran and his representative should also be informed of the negative results, and should be given an opportunity to obtain the records.    

3.  After the above development has been completed and all outstanding records have been associated with the claims file, the AMC/RO should schedule the Veteran for a VA examination to determine the etiology of his sleep apnea.  The claims file should be made available to the examiner for review.  A complete rationale should be provided for any opinion expressed.

Based on examination findings, historical records, and medical principles, the VA examiner should then render an opinion as to whether it is as likely as not that the Veteran's sleep apnea disability either began during or was otherwise caused by the Veteran's military service.  

4.  The Veteran should also be afforded VA examination to determine the nature and etiology of his polyarthritis of the bilateral lower extremities claimed as musculoskeletal and joint problems.  The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The report(s) should state that such review has been accomplished.  

The examiner should note all symptoms (including any in-service complaints of joint pain/muscle pain), manifestations, and the affected area(s) of any chronic disability pattern manifested by joint pain/muscle pain (fibromyalgia/polyarthritis of the bilateral lower extremities).  The examiner should also identify all current diagnoses manifested by joint pain/muscle pain (fibromyalgia/polyarthritis of the bilateral lower extremities).  Any necessary evaluations, studies, and tests, to include x-ray studies, should be conducted.  

If the examiner is able to diagnose a disability stemming from the Veteran's symptomatology, including joint pain/muscle pain (fibromyalgia/polyarthritis of the bilateral lower extremities), he or she should render an opinion as to whether it is as likely as not that any current disability manifested by joint pain/muscle pain (fibromyalgia/polyarthritis of the bilateral lower extremities) is related to the Veteran's service or any incident therein.  

A complete rationale should be provided for any opinion.  The claims file should be made available to the examiner(s) for review.    

5.  Upon completion of the above-requested development, the RO should readjudicate the Veteran's increased rating, service connection, new and material evidence, and individual unemployability claims.  If the claims remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.  The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal.  Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate by 

not attending the requested VA examination may result in an adverse determination.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 

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 Supp. 2010).



______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs