Citation Nr: 1312403 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-28 588 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for insomnia and memory loss, as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 2. Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and A.W. ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to September 1992, to include service in Southwest Asia from August 1990 to March 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO denied service connection for urticaria, claimed as skin condition, depression, to include insomnia and memory loss, stomach condition, and headaches. In May 2006, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in July 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2006. In February 2008, the Veteran and his friend, A. W., testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In August 2008, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing the requested action, the RO continued the denial of the claims (as reflected in a November 2009 supplemental SOC (SSOC)), and returned these matter to the Board for further appellate consideration. In June 2010, the Board denied the claims for service connection for a skin disability/skin problems, and for a stomach condition/gastrointestinal symptoms, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. The remaining claims for service connection for headaches and for psychiatric disability/psychiatric problems, to include insomnia and memory loss, and headaches, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, were again remanded to the RO, via the AMC, for additional development. After accomplishing the requested action, the AMC granted service connection for cluster headaches, representing a full grant of that benefit sought. The AMC continued to deny the claim for service connection for psychiatric disability/psychiatric problems, to include insomnia and memory loss, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117 (as reflected in a May 2011 SSOC), and returned that matter to the Board for further consideration. In December 2011, the Board denied service connection for a psychiatric disability/psychiatric problems, to include insomnia and memory loss, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision and remanding the claim on appeal to the Board for further proceedings consistent with the Joint Motion. In light of points raised in the joint motion, the Board has bifurcated the issue previously considered, and has characterized the appeal as now encompassing the two matters set forth on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board's decision on the matter of service connection for insomnia and memory loss, as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117 is set forth below. The matter of service connection for psychiatric disability is addressed in the remand following the order. This matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 3. The Veteran's insomnia and memory loss have been attributed to post-service diagnoses of dyssomnia, posttraumatic stress disorder (PTSD) and major depression. CONCLUSION OF LAW Service connection for insomnia and memory loss, as due to undiagnosed illness pursuant to 38 U.S.C.A. § 1117 is legally precluded. 38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As regards the Veteran's entitlement to service connection pursuant to 38 U.S.C.A. § 1117, he has been notified of the reasons for the denial of this aspect of his claim for service connection, and has been afforded the opportunity to present evidence and argument in connection with the claim. Moreover, relevant private medical records, VA medical records and VA examination reports have been associated with the claims file, much of this evidence procured by the RO. The Board finds that these actions are sufficient to satisfy any due process owed the Veteran. As explained in more detail below, the aspect of the Veteran's appeal herein decided lacks legal merit. As the law, and not the facts, is dispositive of the claims, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Persian Gulf Veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f); 38 C.F.R. § 3.317(d). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 18, 2006, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2011(for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 71 Fed. Reg. 75669 (2006). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). The Veteran's separation document (Department of Defense Form 214 (DD-214)) indicates that he served in Southwest Asia from August 1990 to March 1991. Accordingly, the Board notes that for purposes of the pertinent statute and regulation, the appellant is a Persian Gulf veteran and 38 U.S.C.A. § 1117 is potentially applicable. Here, however, that statute provides no basis for an award of service connection in this case. The Veteran's service treatment records reflect no complaint, finding or diagnosis pertinent to sleep impairment or memory loss. On the Veteran's June 1992 Report of Medical History, he checked both yes and no for "frequent trouble sleeping." No sleep impairment or memory loss was noted on June 1992 separation examination. Post service, VA outpatient treatment records reflect that in July 2001, the Veteran reported with symptoms of insomnia. He was seen in psychiatry in August 2002, where he reported that he had difficulty initiating and maintaining sleep. He denied sadness, crying episodes, anxiety, alcohol, or illicit drug use. An Axis I diagnosis of primary insomnia was assigned, with no Axis II diagnosis. In January 2003, it was noted that the Veteran was being followed by psychiatric for treatment of chronic sleep problems, and that he was taking medication but continued to have sleep difficulties. Insomnia was again noted in April 2003 and December 2003. In March 2005, it was noted that the Veteran continued to experience insomnia, which caused distress the next day. He reported that he had experienced difficulties maintaining sleep for years, and was not responding to different treatments. He denied symptoms of depression, anxiety, drugs, alcohol, or tobacco use. Medical records from private psychiatrist Dr. T. note symptoms of depression beginning in January 2005. In June 2007, a history of PTSD was indicated. PTSD and major depression were noted in July 2007. Symptoms of anxiety, depression, poor sleep, and nightmares were indicated. During the Veteran's February 2008 Board hearing, he testified that he experienced psychiatric difficulties and sleep problems during service, but did not then seek treatment. He reported that he sought treatment shortly after service, but that there were no available treatment records documenting this treatment. In a November 2008 VA psychiatry admission evaluation note, the VA medical provider diagnosed the Veteran with chronic insomnia, rule out depressive disorder not otherwise specified. A March 2009 VA medical provider also assessed insomnia and noted a history of depression. On VA psychiatric examination in September 2009, the Veteran reported symptoms of depressed mood beginning after his tour in Gulf, trouble sleeping, which he indicated began "a time ago," and forgetfulness. After eliciting the Veteran's medical history and conducting a mental status examination, psychological testing, and nocturnal polysomnogram, a diagnosis of dyssomnia, not otherwise specified, was assigned. Collectively, the above-cited evidence indicates that the Veteran's insomnia and memory loss have been attributed to post-service diagnoses of dyssomnia, PTSD, and major depression. The medical evidence of record is unequivocal on this point, no contrary evidence has presented or identified, and neither the Veteran nor his representative contends otherwise. While the matter of service connection for psychiatric disability underlying the Veteran's complaints was the subject of the Joint Motion, and is being remanded for further development (as noted in the remand, below), at this juncture, the aspect of the appeal involving the Veteran's entitlement to service connection pursuant to 38 U.S.C.A. § 1117 must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for insomnia and memory loss, as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117, is denied. REMAND In light of points raised in the Joint Motion, and review of the record, the Board finds that further RO action on the matter of the Veteran's entitlement service connection for psychiatric disability is warranted. In the Joint Motion, the parties found that the Board must consider whether the September 2009 VA opinion and a July 2010 addendum are adequate to satisfy the duty to assist and provide an adequate statement of the reasons or bases to support its decision. The parties noted that, in the July 2010 addendum, the prior examiner stated only that there was no evidence of psychiatric complaints, findings or treatment prior to, during, or for 14 years after service and concluded that the Veteran's conditions were therefore not related to service. As noted, in his June 1992 service report of medical history, prior to his September 1992 discharge, the Veteran checked the box for trouble sleeping; he then appeared to change his answer with regards to whether he had trouble sleeping. In order to give the Veteran the benefit of the doubt, the examiner should consider that report of medical history as an indication of a report of trouble sleeping. The examiner should also consider the Veteran's lay reports of chronicity of symptoms since service. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because the medical provider who examined the Veteran in September 2009 and provided the July 2010 addendum did not review all the medical evidence of record and did not address the Veteran's reports of chronicity, the opinions expressed therein, and further VA examination and opinion addressing the relationship between current psychiatric disability and service-based on full review of the record, to include the Veteran's assertions, and supported by clearly stated rationale-is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo a VA mental disorders examination, by a psychiatrist or psychologist. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, shall result in denial of the reopened claim for service connection. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the RO should also undertake appropriate action to associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in San Juan, Puerto Rico, dated up to September 29, 2009. More recent records from this facility likely exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the San Juan VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since September 29, 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records, to include from Dr. D.T. Toledo. The Board points out that Dr. Toledo's records reflect a diagnosis of PTSD. However, the Veteran has not identified any in-service stress event(s) underlying his PTSD diagnosis. As the Veteran has not received notice of how to support a claim for PTSD-to include under the current version of 38 C.F.R. § 3.304, revised effective July 13, 2010, to liberalize, under certain circumstances, the requirement for establishing the occurrence of an in-service stressor-in its letter, the RO should provide the Veteran with such notice. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA (to include arranging for a supplemental opinion specific to the Veteran's PTSD, if appropriate) prior to adjudicating the claim for service connection for psychiatric disability. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the San Juan VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since September 29, 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for psychiatric disability that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records, to include from Dr. D.G. Toledo. Provide notice of what the evidence must show to support a claim for service connection for psychiatric disability, to include PTSD, to include pursuant to the version of 38 C.F.R. § 3.304 revised effective July 13, 2010. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding, pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist , at a VA medical facility. The Veteran's entire claims file, to include a complete copy of this REMAND, and copies of any pertinent records in the Veteran's Virtual VA file to which the examiner does not have access, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies, to include psychological testing, if deemed warranted, should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be clearly expressed. The examiner should clearly identify all current psychiatric disability(ies) (other than PTSD), to include dyssomnia and major depressive disorder. Then, with respect to each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include complaints therein. In rendering the requested opinions, the physician must consider and discuss all pertinent medical and lay evidence, to include the Veteran's service treatment records (including the June 1992 report of medical history), the prior VA examination reports, the private medical records, and the Veteran's assertions regarding the chronicity of his memory loss and insomnia since service, and any other pertinent lay assertions. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted (including, if appropriate, a supplemental VA medical opinion specific to PTSD), adjudicate the claim for service connection for psychiatric disability. If the Veteran fails, without good cause, to report to any scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to include all that associated with the claims file since the RO's last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs