Citation Nr: 1316899	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  10-30 651	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of clear and unmistakable error (CUE) in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating.    

2.  Entitlement to an initial compensable rating for a left knee disability.  

3.  Entitlement to an effective date earlier than April 7, 2008 for the grant of a 60 percent rating for Crohn's disease. 

4.  Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for B12 deficiency and anemia (claimed as blood deficiencies), to include as secondary to service-connected Crohn's disease.  

5.  Entitlement to service connection for blood deficiencies, including B12 deficiency, anemia, and hypokalemia, to include as secondary to service-connected Crohn's disease.  
 
6.  Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for memory loss, to include as secondary to a service-connected disability.
 
7.  Entitlement service connection for memory loss, to include as secondary to a service-connected disability.

8.  Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for fatigue, to include as secondary to a service-connected disability.

9.  Entitlement to service connection for fatigue, to include as secondary to a service-connected disability.

10.  Entitlement to service connection for a dental disorder, to include gingival recession and/or gum disease, for compensation purposes.  

11.  Entitlement to service connection for a neck disorder, to include as secondary to B12 deficiency.  

12.  Entitlement to service connection for a back disorder, also claimed as muscular skeletal disease, to include as secondary to B12 deficiency.  

13.  Entitlement to service connection for a lung disorder, also claimed as interstitial lung disease, to include as secondary to service-connected Crohn's disease.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from November 1989 to February 1994.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008, January 2009, and June 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In the September 2008 rating decision, the RO granted an increased, 10 percent rating for status post arthroscopic dissection medial plica of the left knee with degenerative changes (hereinafter referred to as left knee disability), effective March 26, 2008.  The RO continued a 30 percent rating for irritable bowel syndrome (formerly undiagnosed gastrointestinal disorder involving stomach cramps, diarrhea, abdominal pain, yeast and blood in stools, weakness, and coldness).  The RO also confirmed and continued previous denials of service connection for memory loss, a contusion of the back, B12 deficiency and anemia (claimed as blood deficiencies), hearing loss, gingival recession (claimed as gum disease), fatigue, and cervical strain (claimed as spinal trouble and neck problems).  

In the January 2009 rating decision, the RO denied service connection for a lung condition due to exposure to oil smoke and chemicals.  

The Veteran expressed disagreement with the effective date of the 10 percent rating assigned for his left knee disability, as well as the denial of a higher rating for his gastrointestinal disability, and the continued denials of service connection for his claimed disabilities.  

In a June 2010 rating decision, the RO granted an increased, 60 percent rating for Crohn's disease (formerly assessed as irritable bowel syndrome and undiagnosed gastrointestinal disorder involving stomach cramps, diarrhea, abdominal pain, yeast and blood in stools, weakness, and coldness), effective April 7, 2008.   

In his July 2010 VA Form 9 (substantive appeal), the Veteran indicated that he agreed with the decision to increase his gastrointestinal disability by 30 percent.  He stated that he had read the statement of the case (SOC) and was only appealing the claims for service connection for memory loss, cervical strain, contusion of the thoracic lumbar spine, B12 deficiency, anemia, a lung condition, fatigue, gingival resection, and the effective date assigned for the grant of a 10 percent rating for his left knee disability.  He also expressed disagreement with the effective date of the increased rating for Crohn's disease.  

In April 2010, the Veteran, as well as his father, his former spouse, and his brother, testified before a Decision Review Officer (DRO) at the RO.  A transcript of that hearing is of record.   In March 2012, the Veteran testified before the undersigned Veterans Law Judge in Washington, D.C.  A transcript of that hearing is also of record.   

In connection with the March 2012 hearing, and subsequent to that hearing, the Veteran submitted additional evidence, along with a signed waiver of RO consideration of the evidence.  See 38 C.F.R. § 20.1304 (2012).

Regarding the Veteran's left knee disability, he initially filed a claim for service connection for a left knee injury in March 1994.  In a July 1994 rating decision, the RO granted service connection and assigned an initial noncompensable (0 percent) rating for the left knee disability.  This decision was based on the Veteran's service treatment records.  The Veteran did not initiate an appeal in response to the July 1994 rating decision.  Thereafter, he filed claims for an increased rating for his left knee disability in April 1998 and November 2005.  The RO continued the noncompensable rating in February 2000 and August 2006 rating decisions.  The Veteran did not initiate an appeal in regard to these decisions.  In March 2008, the Veteran submitted copies of additional service treatment records which are relevant to the initial rating assigned for his left knee disability.  

Applicable regulations provide that if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section (which defines new and material evidence as required to reopen a finally adjudicated claim).  38 C.F.R. § 3.156(c) (2012).  As the service treatment records associated with the claims file in March 2008 are relevant to the evaluation assigned for the Veteran's left knee disability, the initial July 1994 rating decision which granted service connection and assigned an initial noncompensable (0 percent) rating is not final.  Accordingly, because that original decision is still pending, the matter presently for consideration is entitlement to an initial compensable rating for a left knee disability.  In light of the foregoing, and as will be discussed in greater detail below, the Board must dismiss the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating.  

As regards the claim for service connection for a dental disorder, the Board notes that a claim for service connection for gum disease was denied in the July 1994 rating decision, which the Veteran did not appeal.  A subsequent request to reopen a claim for service connection for gum disease was denied in a February 2000 rating decision, which the Veteran also did not appeal.  In July 2008, the Veteran submitted a copy of an in-service memorandum for the unit commander regarding dental in processing information, which reflected that he was dental fitness class 2, meaning his existing dental condition was unlikely to result in a dental emergency within 12 months.  In light of the prior final denials of service connection for a dental disorder, new and material evidence would generally be required to reopen the claim for service connection.  However, the in-service memorandum submitted in July 2008 is a relevant service record which existed and was not of record at the time of the prior final denial.  Accordingly, new and material evidence is not required to reopen the claim and the claim will be reconsidered on a de novo basis.  38 C.F.R. § 3.156(c).

Similarly, as regards the claims for service connection for neck and back disorders, the RO denied service connection for a back injury in the July 1994 rating decision which the Veteran did not appeal.  In an August 2006 rating decision, the RO denied service connection for cervical strain and found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a contusion of the back.  The Veteran also did not appeal this denial.  In April 2008, the Veteran filed a request to reopen his claim for service connection for a neck disorder.  In May 2010, the Veteran submitted a copy of an individual sick slip reflecting that he was seen on April 7, 1992 for pain in the right side of the back and neck.  As this individual sick slip is a relevant service record which existed and was not of record at the time of the prior final denial, new and material evidence is not required to reopen the claims for service connection for neck and back disorders and these claims will also be reconsidered on a de novo basis.  38 C.F.R. § 3.156(c).

In light of the Veteran's April 2006 statement, in which he asserted that his neck and back pain might be due to B12 deficiency, as one doctor had told him, the claims have been characterized to include consideration of entitlement to secondary service connection.  

The Board notes that, in July 2010, the Veteran indicated that he was seeking service connection for muscular skeletal disease.  In the May 2011 supplemental SOC (SSOC), the RO denied service connection for a contusion of the thoracic and lumbar spine (also claimed as muscular skeletal disease).  In light of the Veteran's assertions, and the RO's characterization of the claim, the claim for service connection for muscular skeletal disease is being included in the claim for service connection for a back disorder.  

Regarding the requests to reopen the claims for service connection for B12 deficiency and anemia, memory loss, and fatigue, the Board notes that claims for service connection for each of these conditions was denied in the August 2006 rating decision.  The Veteran did not appeal that decision.  In 2008, the Veteran filed requests to reopen claims for service connection for B12 deficiency and anemia, memory loss, and fatigue.  The RO adjudicated claims for service connection for B12 deficiency and anemia, memory loss, and fatigue on a de novo basis in the September 2008 rating decision, in light of the March 2008 submission of additional service treatment records.  However, pursuant to 38 C.F.R. § 3.156(c) new and material evidence is not required to reopen a claim when VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.  (Emphasis added).  The service records associated with the claims file subsequent to the August 2006 rating decision, however, do not pertain to the requests to reopen claims for service connection for B12 deficiency and anemia, memory loss and/or fatigue, as they make no mention of any of these conditions.  

Therefore, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claims for service connection for B12 deficiency and anemia, memory loss, and fatigue.  That matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen these claims has been received, these matters on appeal have been characterized as reflected on the title page.

The Board also notes that, since the time of the prior final denial of the claim for service connection for B12 deficiency and anemia, memory loss, and fatigue, the Veteran has asserted that these conditions are secondary to service-connected disabilities.  The United States Court of Appeals for Veterans Claims (Court) has held, however, that basing a claim for service connection on a new theory of etiology does not constitute a new claim.  See Ashford v. Brown, 10 Vet. App. 120, 123 (1997).  See also Robinson v. Mansfield, 21 Vet. App. 545 (2008) (Separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, then constitute the same claim.).  The Board therefore finds that, regardless of a newly claimed theory of entitlement, new and material evidence is needed to reopen these claims.

Additionally, while the RO has previously addressed the claim for service connection for B12 deficiency and anemia, the Veteran has also presented evidence reflecting that he has been treated for hypokalemia.  Accordingly, this reopened claim for service connection has been characterized as reflected on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

In preparing to decide these claims, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file.  As will be addressed in the remand below, the Virtual VA file indicates there is additional evidence in VA's possession which is potentially pertinent to the claims on appeal but that is not currently associated with the record before the Board for consideration.  As will be discussed below, remand is required to obtain this additional evidence.  In light of the favorable decision, however, regarding the requests to reopen claims for service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue, the Board finds that there is no prejudice to the Veteran by proceeding with this portion of the appeal.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

A March 2011 letter in the Veteran's Virtual VA e-folder reflects that the RO had received the Veteran's written disagreement with a January 2011 rating decision regarding the effective date of April 13, 2010 for the grant of service-connected compensation for posttraumatic stress disorder (PTSD).  The RO noted that the Veteran also disagreed with the recoupment of disability severance pay.  The RO advised the Veteran that, if his appeal could not be granted, he would be furnished a statement of the case (SOC).  A December 2011 letter also included in the e-folder reflects that the Veteran had been scheduled for a DRO hearing in December 2011.  However, no SOC regarding the claim for an effective date earlier than April 13, 2010 for the grant of service-connected compensation for PTSD or the matter of whether recoupment of disability severance pay was proper is available for the Board's review.  The matters of entitlement to an effective date earlier than April 13, 2010 for the grant of service-connected compensation for PTSD and the matter of whether recoupment of disability severance pay was proper are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action to include, if warranted, issuance of an SOC.  

The Board notes that a claim for service connection for a dental disorder is also considered a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302, 306 (1993).  While the RO has adjudicated the claim for service connection for gingival recession, claimed as gum disease, the record does not indicate that a claim for service connection for a dental disorder, for purposes of VA outpatient dental treatment, has been adjudicated.  In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment.  The claim for service connection for a dental disorder, for purposes of VA outpatient dental treatment, is referred to the AOJ for additional referral to the appropriate VAMC.

Additionally, the claims file reflects that, in February 2008, the Veteran filed a claim for the payment of cost of unauthorized medical services.  The record presently before the Board does not reflect that this claim for payment or reimbursement of medical expenses has been adjudicated.  Claims for payment or reimbursement of medical expenses are adjudicated by the VAMC.  The Veteran's February 2008 claim for payment or reimbursement of medical expenses is also referred to the AOJ for additional referral to the VAMC for appropriate action.  
 
The decision dismissing the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating, and reopening the claims for service connection for blood deficiencies, memory loss, and fatigue, is set forth below.  The remaining issues on the title page 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.  All notification and development action needed to fairly adjudicate the claims herein decided has been accomplished.

2.  In a July 1994 rating decision, the RO granted service connection and assigned an initial noncompensable (0 percent) rating for the Veteran's left knee disability.  Claims for an increased rating for the service-connected left knee disability were denied in February 2000 and August 2006 rating decisions.  

3.  The Veteran did not appeal the July 1994, February 2000, or August 2006 rating decisions; however, in March 2008, additional service treatment records which are relevant to the initial rating assigned for the service-connected left knee disability were associated with the claims file.  These records were in existence but not considered in the July 1994, February 2000, or August 2006 rating decisions.  

4.  In an August 2006 rating decision, the RO denied service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue.  Although notified of the denial in an August 2006 letter, the Veteran did not initiate an appeal.  

5.  Evidence associated with the claims file since the August 2006 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue and raises a reasonable possibility of substantiating the claims.  


CONCLUSIONS OF LAW

1.  As the July 1994 rating decision is still pending in light of the receipt of additional relevant service records, the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE, is rendered moot and must be dismissed.  38 C.F.R. § 3.156(c) (2012).  

2.  The RO's August 2006 rating decision denying service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2012).

3.  As pertinent evidence received since the August 2006 denial is new and material, the criteria for reopening the claims for service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA electronic folder (e-folder).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in exhaustive detail each and every piece of evidence submitted by him or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regarding his claims.  He must not assume the Board has overlooked any pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim.

As will be discussed below, the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating, is being dismissed.  As such, no discussion of the duties to notify and assist, as regards this claim, is required.  As regards the requests to reopen claims for service connection for B12 deficiency and anemia, memory loss, and fatigue, given the favorable disposition of these claims, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished.

Dismissal

Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).

Specifically with regard to claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2).

A claim is defined by regulation as "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).  Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 3.155(a).

The Veteran filed a claim for service connection for a knee injury in March 1994.  In the July 1994 rating decision, the RO granted service connection and assigned an initial 0 percent rating for left knee disability, effective February 23, 1994, based on the Veteran's service-treatment records.  The Veteran was notified of the July 1994 decision via letter in August 1994; however, he did not initiate an appeal.  He subsequently filed claims for an increased rating for his left knee disability in April 1998 and November 2005.  These claims were denied in February 2000 and August 2006 rating decisions.  The Veteran did not initiate an appeal in regard to either of these decisions.  

In March 2008, the Veteran submitted copies of service treatment records which were not previously of record.  These service treatment records include a copy of his November 1993 Physical Evaluation Board (PEB).  This PEB reflects that the Veteran had patellofemoral syndrome of the left knee, manifested by chronic pain and swelling.  The VA disability code was noted to be 5257.  The PEB found that the Veteran had activity limitations which precluded adequate performance of his normal duties.  Therefore, he was found unfit for further military duty in his rank and military occupational specialty.  The Veteran was advised to contact a Veterans Affairs counselor as he had a service-connected medical condition.  The PEB found the Veteran physically unfit and recommended a combined rating of 10 percent.  The PEB further recommended that the Veteran be separated with severance pay.  

Other service treatment records associated with the claims file in March 2008 which were not previously of record include a copy of an October 1993 report of Medical Board proceedings which notes diagnoses of chronic knee pain and swelling, patellofemoral syndrome, and post-operative plica resection.  The narrative summary reflects that the Veteran injured his left knee in a September 1992 parachute jump, for which he eventually underwent arthroscopic resection of plica in April 1993.  Examination revealed atrophy of the left leg quadriceps muscles, visual swelling on the medial and lateral aspects of the left patella, and scars from the pervious arthrotomy.  There was an erythematous appearance to the tissue, both medially and laterally.  There was some warmth to the skin over the lateral aspect of the patella and there was tenderness to pressure over both the medial and lateral aspects.  There was some increased discomfort in the final 15 degrees of passive flexion, and the left knee lacked only 10 degrees of flexion on active range of motion testing.  Extension was full and normal.  There was no evidence of any meniscus or ligamentous injury in the knee.  The knee was stable and there was some mild crepitus behind the patella.  The physician commented that X-rays had been normal.  The examiner indicated that the Veteran was unable to walk for a significant amount of time or do any prolonged standing without increased swelling and discomfort of the left knee.  The diagnosis was left knee pain and swelling, chronic, unresolved by physical therapy and surgery.  Possible patellofemoral syndrome, post-operative plica resection.  It was recommended that the Veteran be referred to the PEB.  

In the September 2008 rating decision, the RO granted an increased, 10 percent rating for status post arthroscopic dissection medial plica of the left knee with degenerative changes, effective March 26, 2008.  The 10 percent rating was assigned based on additional loss of function upon repetitive motion due to pain.  The RO indicated that the effective date of March 26, 2008 was assigned as that was the date of the Veteran's claim.  The RO acknowledged that, on March 26, 2008, it had received additional service treatment records which had not been considered before and, therefore, the Veteran's disability had been reviewed.  However, the RO found that the records did not show significant additional evidence warranting a change in the current evaluation of the left knee disability.  

Pursuant to 38 C.F.R. § 3.156(c), if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section (which defines new and material evidence).  38 C.F.R. § 3.156(c).  

The additional service treatment records associated with the claims file in March 2008 are relevant to the initial rating assigned for the service-connected left knee disability.  As such, the Board finds that these service treatment records fall into the exception created by 38 C.F.R. § 3.156(c), as they are relevant to the initial rating to be assigned for the service-connected left knee disability and existed, but were not associated with the claims file, when VA initially decided the claim and assigned a noncompensable rating in July 1994.  Accordingly, the assignment of an initial disability rating for the service-connected left knee disability remains pending from the time of the July 1994 rating decision.  The claim for an initial compensable rating for the service-connected left knee disability must be remanded for AOJ consideration in the first instance.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

As entitlement to an initial compensable rating for the service-connected left knee disability is a pending matter, the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, is moot, and must be dismissed.  

The Board acknowledges that the Veteran, through his representative, has asserted that the July 1994 rating decision involved CUE insofar as it failed to consider the November 1993 PEB.  However, CUE may only be found in a previous determination that is final and binding.  38 C.F.R. § 3.105(a).  As the question of the proper initial rating to be assigned for the service-connected left knee disability remains pending from the July 1994 rating decision, any allegation of CUE in the July 1994 rating decision is also moot.  

For the reasons stated above, the claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating, must be dismissed.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

New and Material Evidence

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).  

Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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).

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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).

As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006).  The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See Allen v. Brown, 7 Vet. App. 439 (1995).

Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  See 38 C.F.R. § 3.310(b) (2012).  

The evidence of record reflects that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War.  As a Persian Gulf Veteran, compensation may be established for 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 prior to December 31, 2016 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (2012).

A "qualifying chronic disability" includes: undiagnosed illness and or medically unexplained chronic multi symptom illnesses such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i).

Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic.  The six month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).
 
In November 2005, the Veteran filed a claim for service connection for blood deficiencies and memory loss.  During a June 2006 VA examination, the Veteran complained of fatigue.  In the August 2006 rating decision the RO, in pertinent part, denied service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue.  The RO found that the Veteran's blood deficiency was a diagnosed condition and there was no medical evidence relating this condition to an event in service.  The RO further stated that the VA treatment records revealed no memory impairment and, while a VA examiner reported memory loss related to service in the Gulf, no objective basis for this opinion was provided.  Similarly, the RO denied service connection for fatigue, stating that, while a VA examiner related the Veteran's fatigue to his duty in the Gulf, he did not report the objective findings used to support his opinion.  

Although notified of the August 2006 rating decision by letter in August 2006, the Veteran did not initiate an appeal; hence, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  In addition, no new and material evidence was received within one year of the August 2006 rating decision.  See 38 C.F.R. § 3.156(b).

In March 2008, the Veteran filed a request to reopen his claim for service connection for memory loss.  The following month, he filed a request to reopen his claim for service connection for a blood deficiency.  In July 2008, the Veteran filed a request to reopen his claim for service connection for fatigue.  The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claims is the August 2006 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118.

The evidence of record at the time of the August 2006 rating decision included service treatment records which are negative for complaints regarding or findings of blood deficiencies (including B12 deficiency and/or anemia), memory loss, or fatigue.  Rather, in a September 1993 Report of Medical History given in conjunction with a Medical Evaluation Board, the Veteran reported that he was in good health other than his left knee.  He denied loss of memory or amnesia.  

Also of record at the time of the August 2006 rating decision were post-service VA and private treatment records which include complaints of fatigue and memory problems.  The Veteran was prescribed B12 and folic acid as his levels were low.  

A June 2005 VA treatment record reflects that the Veteran was seeking service connection for memory impairment, although there was none on examination.  The physician opined that the Veteran was likely having difficulty functioning due to alcohol consumption.  During VA treatment in August 2005, the Veteran reported that he had been forgetting where he left his wallet, for example, for about a year and a half.  He reported that he was involved in a motor vehicle accident in 1996 with a head injury, when he first lost consciousness and was confused for the short term.  An October 2005 VA treatment record reflects that the Veteran complained of a decline in his memory, and the physician opined that this could be due to his low B12 and folic acid.  A June 2006 treatment record includes an impression of memory impairment, possibly related to PTSD, although the Veteran had normal studies in the past, including CT scans.  Also in June 2006, the Veteran complained of more fatigue, but the physician noted that his blood work, including hemoglobin, hematocrit, and indices, were normal.  

On VA examination in August 1998, the Veteran complained of fatigue, but there was no sign of vitamin deficiency.  Complete blood count revealed normal hemoglobin and hematocrit with a slightly increased mean corpuscular hemoglobin.  

A May 2006 VA examination report indicates that the Veteran reported having secondary complications from his gastrointestinal disability, including vitamin B12 deficiency with associated anemia.  He also complained of memory loss, which he described as beginning around 1993.  The pertinent impressions were vitamin B12 deficiency with gastrointestinal disorder and memory loss.  Regarding memory loss, the examiner commented that the Veteran likely had attention deficit disorder and warranted a formal evaluation by the psychiatry compensation and pension office.  

The Veteran was afforded another VA examination in June 2006.  He complained of memory loss and intermittent generalized fatigue.  He specifically described the development of short term memory loss beginning in the mid 1990s after his tour in the Gulf.  The examiner rendered diagnoses of generalized fatigue - Gulf War syndrome and memory loss associated with Gulf War syndrome.  

Based on the foregoing evidence, the RO denied service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue in the August 2006 rating decision.  At the time of that rating decision, there was evidence that the Veteran had B12 deficiency.  Although the May 2006 examiner rendered a diagnosis of B12 deficiency with gastrointestinal disorder, he did not clearly indicate whether such diagnosis was meant to indicate that the B12 deficiency was caused or aggravated by the gastrointestinal disorder.  Additionally, while there was evidence of complaints regarding fatigue and memory loss, and the June 2006 VA examiner attributed the Veteran's fatigue and memory loss to Gulf War syndrome, he provided no explanation for his opinion.  

Evidence associated with the claims file since the August 2006 rating decision includes a news article submitted by the Veteran in July 2008 indicating that U.S. researchers said that studies offered compelling evidence that several complaints, including memory and sleep problems were due to exposure to chemicals, including nerve gas.  Another article states that exposure to chemicals and pesticides during the first Gulf War is likely the cause of widespread illnesses suffered by its veterans according to a study.  This article specifically mentions that a third of the troops who served in that War suffered from fatigue, memory lapses, and sleep disturbances.  The Veteran also submitted an article asserting that a pill given to U.S. soldiers to help protect them against nerve gas and pesticides may have triggered the cluster of symptoms known as Gulf War illness, including chronic fatigue and memory and attention problems, according to a study.  

He also submitted an internet article regarding Crohn's disease in July 2008, which stated that symptoms of Crohn's disease included rectal bleeding, and that such bleeding could be serious and persistent, leading to anemia.  

In March 2009, the Veteran submitted another internet article regarding Gulf War syndrome, which stated that Veterans with the illness experienced a wide range of symptoms, which commonly included fatigue, disturbed sleep, and memory loss.  In his NOD received the same month, the Veteran reported that his VA doctors acknowledged that his memory loss could be from multiple sedations.  He indicated that he had been sedated multiple times, including operations in service and for several post-service gastrointestinal procedures.  

VA treatment records associated with the claims file subsequent to the August 2006 rating decision note that the Veteran had physical limitations in that he tired easily with his gastrointestinal, neck, and back problems.  In a May 2009 statement, the Veteran asserted that his fatigue was related to his intestinal problems, medication, and other service-connected issues.  

During the April 2010 DRO hearing, the Veteran testified that his memory problems had been attributed to his blood problems, including B12 deficiency, by his doctors.  He also testified that his fatigue set in during service and asserted that his fatigue might be related to his gastrointestinal disability and/or his blood deficiencies.    

A June 2010 VA gastrointestinal examination notes that the Veteran's Crohn's disease impacted his occupational activities because of fatigue.  This examiner also noted that the Veteran had complications from Crohn's disease including nutritional deficiencies as noted [B12 deficiency] requiring chronic supplementation, but there were no documented permanent abnormalities (anemia, peripheral neuropathy) associated with the B12 deficiency at the time of examination.  

In a March 2012 statement, the Veteran reported that his memory problems and fatigue, as well as other health problems, had their onset in service.  

As regards his claimed B12 deficiency, the June 2010 VA examination report, unlike the prior May 2006 report, includes a medical opinion that the Veteran's B12 deficiency is a complication of his Crohn's disease.  While the May 2006 VA examination report included the Veteran's report that he had secondary complications from his gastrointestinal condition, including B12 deficiency and anemia, the examiner, himself, only rendered a diagnosis of vitamin B12 deficiency with gastrointestinal disorder, which does not clearly address a relationship between the two conditions.

The June 2010 VA examination report is new, in that it was not of record at the time of the August 2006 denial, and is material, in that it raises a reasonable possibility of substantiating the claim, insofar as it addresses a relationship between the Veteran's current B12 deficiency and his service-connected Crohn's disease.  

As regards the Veteran's memory loss and fatigue, the evidence associated with the claims file since the August 2006 rating decision include articles which indicate that memory problems and fatigue have been related to chemicals to which Gulf War veterans were exposed during service.  Significantly, in his April 2008 claim for service connection for a lung disorder, the Veteran reported that he was exposed to oil smoke, chemicals, and other elements during service.  The articles submitted by the Veteran since the prior denial of the claims for service connection for memory loss and fatigue are new in that they were not previously considered in the August 2006 rating decision.  They are also material in that they relate to an unestablished fact necessary to substantiate the claims, that is, a relationship between the Veteran's memory loss and fatigue and service.

Additionally, the Veteran indicated in his March 2009 NOD that his VA doctors had told him that his memory loss could be from multiple sedations, adding that he had been sedated for in-service operations and for several post-service gastrointestinal procedures.  Ordinarily, a Veteran's hearsay statement regarding what he was told by a clinician does not transform his lay statement into medical evidence.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (the connection between a layman's account, filtered through a layman's sensibilities, of what a doctor purportedly said is too attenuated and inherently unreliable to constitute medical evidence).  However, the question here is whether new and material evidence has been received to reopen the claim for service connection for memory loss.  In addressing this initial question of whether new and material evidence has been received, the credibility of the newly evidence, in this case, the Veteran's statement, is to be presumed.  Justus, supra.  Accordingly, as the March 2009 statement is presumed credible and relates to the question of a nexus between the Veteran's memory loss and service and/or a service-connected disability, it raises a reasonable possibility of substantiating the claim.  

Moreover, the June 2010 VA examiner's opinion that the Veteran's Crohn's disease impacted his occupational activities because of fatigue suggests a relationship between the Veteran's fatigue and his service-connected Crohn's disease.  

Considering the Court's holding in Shade, the Board finds that the evidence associated with the claims file since the August 2006 rating decision raises a reasonable possibility of substantiating the claims for service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue.  Thus, the claims must be reopened.  As the Court explained in Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), new evidence is sufficient reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the disability at issue, even where this additional evidence is not enough to convince the Board to grant the claim.  

Therefore, as new and material evidence has been received, the claims for service connection for B12 deficiency and anemia (claimed as blood deficiencies), memory loss, and fatigue, are reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

 


ORDER

The claim for an effective date earlier than March 26, 2008 for the grant of a 10 percent rating for residuals of arthroscopic dissection of the medial plica of the left knee with degenerative changes, to include on the basis of CUE in the July 1994 rating decision which granted service connection and assigned an initial noncompensable rating, is dismissed.    

New and material evidence having been received; the issue of entitlement to service connection for B12 deficiency and anemia (claimed as blood deficiencies), to include as secondary to service-connected Crohn's disease, is reopened.  

New and material evidence having been received; the issue of entitlement to service connection for memory loss, to include as secondary to a service-connected disability, is reopened.  

New and material evidence having been received; the issue of entitlement to service connection for fatigue, to include as secondary to a service-connected disability, is reopened.  


REMAND

Review of the record reveals that further action on the claims remaining on appeal is warranted.  

Records

The record reflects that there are outstanding records which are potentially pertinent to the claims remaining on appeal.  

In this regard, the Virtual VA e-folder includes a June 2012 rating decision in which the RO continued a 30 percent rating for PTSD.  The evidence considered in that decision included March and April 2012 Reports of General Information, a June 2012 VA PTSD examination, and treatment records from the Mountain Home VAMC, dated from December 2008 through June 2012.  

Also included in the e-folder is a January 2013 rating decision in which the RO continued the 60 percent rating for Crohn's disease and deferred consideration of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  The evidence considered in that decision included treatment records from the Mountain Home VAMC, dated from October 19, 2001 to May 8, 2010; treatment records from the Atlanta VAMC Atlanta, dated from January 2, 1998 to March 16, 2006; a December 2011 claim for an increased rating for Crohn's disease, and VA examinations dated in January, April, and June 2012.  

While the claims file and Virtual VA e-folder presently include treatment records from the Mountain Home VAMC (dated from June 2005 to March 2010 and from July 2011 to May 2012), and from the Atlanta VAMC (dated from January 1997 to March 2002), the aforementioned rating decisions indicate that additional treatment records from these facilities are available.  Additionally, the other pieces of evidence listed as considered in the June 2012 and January 2013 rating decisions are not currently available for the Board's review in either the paper claims file or the Virtual VA e-folder, despite being potentially pertinent to the current appeal.  It follows then that, on remand, the AMC/RO must obtain and associate with either the paper claims file or the Veteran's Virtual VA e-folder the evidence relied on in the June 2012 and January 2013 rating decisions.

Further, the rating codesheet of the January 2013 rating decision indicates that the Veteran had a formal DRO hearing in March 2011.  A transcript of this hearing should also be associated with the record on remand.  

Additionally, while the June 2012 and January 2013 rating decisions indicate that treatment records from the Mountain Home VAMC, dated to June 2012, were considered, the e-folder also includes vital signs from the Mountain Home VAMC, dated from February 2008 to December 2012, suggesting that even more recent treatment records may be available.  As any records of VA treatment since June 2012 are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file or Virtual VA e-folder.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Further, during the March 2012 hearing, the Veteran testified that he started going to the Atlanta VAMC when he first got out of service.  The earliest records of treatment from this facility currently of record are dated in January 1997.  On remand, the AMC/RO should request any treatment records from this facility dated prior to January 1997.  
  
In February 1994, the Veteran filed a VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation.  No vocational rehabilitation folder; however, is currently available for the Board's review.  On remand, the AMC/RO should associate with the claims file the Veteran's vocational rehabilitation records or folder.  See Dunn, 11 Vet. App. at 466-67; Bell, 2 Vet. App. at 613.

VA also has a duty to obtain relevant records of treatment reported by private physicians.  Massey v. Brown, 7 Vet. App. 204 (1994).  

During the May 2006 VA examination, the Veteran reported that he was receiving chiropractic care for his neck until approximately two months earlier, but he could no longer afford it.  While treatment records from the Veteran's private chiropractor are presently of record, the most recent records are dated in October 2004.  The May 2006 VA examination report indicates that more recent records are available.  

A June 2009 VA treatment record indicates that the Veteran went to the emergency room in Knoxville in regard to his cervicothoracic junction.  Treatment records from such emergency room treatment are not presently of record.  

A September 2009 statement from the Veteran indicates that he was seen in the emergency room the night before.  He submitted a portion of patient education materials, apparently from the UT (presumably, University of Tennessee) emergency room, regarding abdominal pain and hypokalemia.  However, complete records from this emergency room treatment are not of record.  

During the March 2012 hearing, the Veteran testified that received treatment for his neck and back at Lensgraf clinic in the past year.  Although the Veteran indicated that records from this facility would be submitted, such records have not been associated with the claims file or Virtual VA e-folder.  Additionally, the Veteran testified that he saw a neurologist regarding his memory problems in the early 1990s.  Such records, however, are also not currently available for the Board's review.  

On remand, the AMC/RO should attempt to obtain any outstanding pertinent treatment records from the Veteran's private chiropractor, an emergency room in Knoxville, the University of Tennessee emergency room, Lensgraf clinic, and a private neurologist who treated the Veteran for memory loss in the early 1990s.  

Additionally, as discussed above, the Veteran has submitted copies of several service treatment records in support of his claims which were not included in the original service treatment records furnished by the service department.  This suggests that the service treatment records provided by the service department in conjunction with the Veteran's initial claim for VA benefits, filed in March 1994, less than one month after separation from service, may not have been complete.  On remand, the AMC/RO should request any additional service treatment records.   

Left Knee

As discussed in the introduction, in light of the submission of additional relevant service treatment records, the issue of entitlement to an initial compensable rating for the service-connected left knee disability is presently for consideration.  This claim must be remanded to allow the AOJ to consider this matter in the first instance.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).  

Additionally, the Board observes that the Veteran was most recently afforded a VA examination to evaluate his left knee disability in June 2008, almost five years ago.  A more contemporaneous examination, responsive to the pertinent rating criteria, is needed to evaluate this disability.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous).

Blood Deficiency

As discussed above, the Veteran was noted to have B12 deficiency on VA examinations in May 2006 and June 2010.  The June 2010 VA examiner described the Veteran's B12 deficiency as a complication of his Crohn's disease.  However, it is not clear whether the Veteran has a disability manifested by B12 deficiency which is caused or aggravated by his service-connected Crohn's disease, or whether his B12 deficiency is merely as symptom of the service-connected Crohn's disease.  The Board notes that the Veteran is presently in receipt of a 60 percent rating for Crohn's disease pursuant to Diagnostic Code 7399-7323.  Diagnostic Code 7323 provides a 60 percent rating for severe ulcerative colitis with numerous attacks a year and malnutrition, the health only fair during remissions.  38 C.F.R. § 4.114, Diagnostic Code 7323.  

If the B12 deficiency is simply a symptom of the service-connected Crohn's disease, an award of service connected compensation for a disability manifested by this deficiency would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14; compare 38 C.F.R. § 4.14 (the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings).  Of note, the January 2013 rating decision included in the Virtual VA e-folder states, "[The Veteran has] previously been shown to have evidence of B12 deficiency which is found in Crohn's disease as the terminal ilium is involved in the absorption of vitamin B12.  [The Veteran has] been on oral supplementation without evidence of diagnosed chronic neurologic or other disease caused by B12 deficiency."  It is unclear from a reading of the rating decision whether this was a conclusion reached by the physician who performed the January 2012 VA examination, or whether this was a statement made by the RO. 

Additionally, clarification is needed as to whether the Veteran has a blood deficiency which constitutes a disability, as opposed to merely a laboratory finding, for which VA compensation is not payable.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). 

While the Veteran's B12 deficiency was discussed in the May 2006 and June 2010 VA examinations, he has not been afforded a medical examination which provides sufficient information to decide the reopened claim for service connection.  Because VA undertook to provide a VA examination to the claimed blood deficiency, the Board must ensure that such an examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  Accordingly, the Veteran should be scheduled for a new VA examination to evaluate his claimed blood deficiencies.  

Memory Loss

As indicated above, the Veteran was noted to have memory loss on VA examinations in May 2006 and June 2006.  The June 2006 examiner indicated that the Veteran's memory loss was associated with Gulf War syndrome; however he provided no rationale for this opinion.  This examination report, therefore, is not adequate to substantiate the claim for service connection.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning).  On remand, the Veteran should be scheduled for a new VA examination to evaluate his claimed memory loss.  See Barr, supra; Stefl, supra.  

Moreover, it is unclear from the record whether the Veteran may have memory loss which is secondary to, or a symptom of, a service-connected disability.  In this regard, the Board notes that he is currently in receipt of a 30 percent rating for PTSD, which contemplates mild memory loss (such as forgetting names, directions, and recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.  A medical opinion is needed to clarify whether the Veteran has a disability manifested by memory loss which is related to service or a service-connected disability, or whether his memory loss is merely a symptom of another condition, such as PTSD.  See 38 C.F.R. § 4.14.  

In rendering the requested opinion, the examiner should consider and address any pertinent post-service injuries, as the Veteran reported during VA treatment in October 2005 that he was involved in a motor vehicle accident in 1996 with a head injury, when he first lost consciousness and was confused for the short term.  A July 1997 private treatment record from Dr. J.M.W., reflects that the Veteran had a head injury at work around 1996, for which he had had several plastic surgeries.  
Additionally, a VA record dated in July 2011, included in the Virtual VA e-folder, reflects that the Veteran called the VAMC regarding recent episodes of blacking out and reported that he was recently "assaulted and hit in the head, neck, stomach."  

The examiner should also consider an October 2005 physician's opinion that the Veteran's decline in his memory could be due to his low B12 and folic acid, as well as the June 2006 impression of memory impairment, possibly related to PTSD.  The examiner should further consider and address the Veteran's assertions that his memory loss is related to multiple sedations, chemical and environmental exposures during his Gulf War service, and/or to a pill he took during service to protect him against nerve gas and pesticides.  
	
Fatigue

As indicated above, the June 2006 examiner indicated that the Veteran's fatigue was associated with Gulf War syndrome; however he provided no rationale for this opinion.  This examination report, therefore, is not adequate to substantiate the claim for service connection.  See Nieves-Rodriguez, supra.  On remand, the Veteran should be scheduled for a new VA examination to evaluate his claimed memory loss.  See Barr, supra; Stefl, supra.  

Moreover, it is unclear from the record whether the Veteran may have fatigue which is secondary to, or a symptom of, a service-connected disability.  In this regard, the Board notes that he is currently in receipt of a 30 percent rating for PTSD, which contemplates chronic sleep impairment.  38 C.F.R. § 4.130, Diagnostic Code 9411.  Additionally, it is unclear from the June 2010 VA examination report whether the Veteran's fatigue may simply be a symptom of his service-connected Crohn's disease.  A medical opinion is needed to clarify whether the Veteran has a disability manifested by fatigue which is related to service or a service-connected disability, or whether his fatigue is merely a symptom of another condition, such as PTSD and/or Crohn's disease.  See 38 C.F.R. § 4.14.  

In rendering the requested opinion, the examiner should consider and address the Veteran's assertions that his fatigue is related to chemical and environmental exposures during his Gulf War service and/or to a pill he took during service to protect him against nerve gas and pesticides.  

Neck and Back Disorders

VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4)(i) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.) 

In April 1992, the Veteran was seen in the emergency department for a back contusion secondary to a fall.  He reported that he tripped and fell in the mud, landing on his back.  He was carrying an M16 rifle at the time, which he landed on.  Two days later, the Veteran presented with complaints of pain in the right side of his back and neck.  The impression was right trapezius spasm and right lower back contusion.  He was seen in physical therapy, where the impression was status post contusion of thoracolumbar spine.  In a September 1993 Report of Medical History given in conjunction with a Medical Evaluation Board, the Veteran reported that he was in good health other than his left knee.  On clinical evaluation in conjunction with the September 1993 Medical Evaluation Board, the neck, spine, and other musculoskeletal system were normal.  

Post-service VA and private treatment records include complaints of neck and back pain.  In an April 2006 statement, the Veteran asserted that he had had neck and back pain since service, and also reported that it might be related to ongoing B12 deficiency, as one doctor had told him, or to in-service injury.  The Veteran also reported that he had pain in other joints in addition to his knee, neck, and spine.  

The Veteran underwent VA general medical examination in May 2006, at which time he gave a history of a neck injury in 1992.  The pertinent impression was cervical strain.  The examiner commented that whether or not this condition was service-related was left to the discretion of the review board, although, the examiner did observe that the Veteran had reported falling off a truck while moving ammunition.  

In July 2008 the Veteran submitted a news article indicating that U.S. researchers said that studies offered compelling evidence that several complaints, including muscle or joint pain, were due to exposure to chemicals, including nerve gas.  Another article states that exposure to chemicals and pesticides during the first Gulf War is likely the cause of widespread illnesses suffered by its veterans according to a study.  This article specifically mentions that a third of the troops who served in that War suffered from muscle and joint pain.  

In a December 2008 treatment record, a VA physician noted that CT scans of the cervical and thoracic spines were clean, but the Veteran did have thoracic and cervical pain.  The diagnosis was that the cervical and thoracic spines were clear; however, the Veteran was referred to pain management.  The physician noted that the Veteran would need ongoing care by a chiropractor and in physical therapy.  He concluded by stating, "result in fall in service."  

In a May 2009 statement, the Veteran reported joint and muscle pain since service.  
He has also continued to report neck and back problems since service, including during the April 2010 DRO hearing and the March 2012 Board hearing.  

In June 2012, the Veteran submitted a statement in which his VA physician provided a medical opinion that his mild cervical degenerative disc disease was at least as likely as not related to an injury, disease, or event occurring during the Veteran's military service.  

The Veteran is competent to describe joint and muscle pain, including in the neck and back.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91-93 (1995).  In addition, as noted above, the Veteran has reported such pain since service.  He is competent to report a continuity of symptomatology.  Charles v. Principi, 16 Vet. App. 370 (2002).  The report of a continuity of symptomatology suggests a link between his current complaints service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).  

Additionally, while the articles submitted by the Veteran suggest a relationship between his complaints of muscle and joint pain and his Gulf War service, these articles, which refer to Gulf War veterans generally (as opposed to the specific Veteran in this case) are simply too speculative to establish a nexus to service.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus).  

Further, while the December 2008 VA treatment record appears to relate the Veteran's cervical and thoracic spine pain to an in-service fall, no explanation for this conclusion was provided.  Similarly, the June 2012 VA physician's opinion that the Veteran's mild cervical degenerative disc disease was at least as likely as not related to an injury, disease, or event occurring during his military service was also not supported by a rationale.  Accordingly, this evidence is not adequate to establish service connection.  See Nieves-Rodriguez, supra.  

While the May 2006 VA examiner's impression included cervical strain, he did not provide an etiological opinion.  This examination is, therefore, inadequate.  See Barr, supra; Stefl, supra.  Accordingly, a new VA examination to obtain a medical nexus opinion regarding these claimed disabilities is warranted.  See 38 U.S.C.A. § 5103A.  

Lung Disorder

Service treatment records reflect that, in December 1989, the Veteran presented with nasal drainage and pain and swelling in the frontal area.  The diagnosis was acute maxillary sinusitis.  Chest X-ray in September 1991 was normal.  In May 1992, the Veteran presented with complaints of swollen tonsils and pain with swallowing.  The diagnosis was viral pharyngitis.  In a September 1993 Report of Medical History given in conjunction with a Medical Evaluation Board, the Veteran reported that he was in good health other than his left knee.  He denied asthma, shortness of breath, pain or pressure in chest, and chronic cough.  On clinical evaluation in conjunction with a September 1993 Medical Evaluation Board, the lungs and chest were normal.  

A February 2008 VA treatment record includes an impression of resolving upper respiratory infection, most likely viral.  Chest X-ray at that time revealed hyperinflated lungs with chronic interstitial markings.  The assessment following treatment at a private hospital in April 2008 was acute febrile illness and possible pneumonia.  Chest X-ray at that time was normal.  

In July 2008 the Veteran submitted a news article indicating that U.S. researchers said that studies offered compelling evidence that several complaints, including breathing troubles, were due to exposure to chemicals, including nerve gas.  In March 2009, he submitted another internet article regarding Gulf War syndrome, which stated that Veterans with the illness experienced a wide range of symptoms, which commonly included trouble breathing.  In his NOD submitted that month, he reported that his doctor had told him that he thought the inflammation in his lungs was coming from Crohn's disease.  

In December 2008, the Veteran was evaluated in the VA pulmonary clinic due to his concern about interstitial lung disease related to smoke exposure in Kuwait.  He denied having any lung problems which had been of concern, but stated that his doctor who was treating him for Crohn's disease was concerned that he might have some pulmonary problems.  The Veteran did describe occasionally coughing up brown mucous.  A gallium scan of the lungs revealed findings compatible with diffuse chronic inflammatory process of mild severity, as commonly seen in interstitial lung disease.  A CT scan of the chest revealed the lungs to be clear.  The pertinent impression was oil fire exposure in Kuwait.  The physician noted that the Veteran had no respiratory complaints and no signs of interstitial lung disease as per CT, with only mild uptake on the gallium scan.  A February 2009 follow-up gallium scan of the lungs was compared to the December 2008 study, and remained compatible with diffuse chronic inflammatory process of mild severity, as commonly seen in interstitial lung disease.  The assessment following VA treatment in March 2009 included occasional shortness of breath in patient with history of oil fire exposure in Kuwait and Crohn's disease.  No respiratory complaints.  It was noted that CT of the chest was without signs of interstitial lung disease.

During the April 2010 DRO hearing, the Veteran testified that he sometimes "cough[ed] stuff up."  He further reported that he had complained of lung problems during service.  During the March 2012 hearing, the Veteran testified that he breathed in smoke from oil well fires in Kuwait.  He testified that he went to sick call for respiratory problems during service and added that his VA doctors had told him that his interstitial lung disease could be related to toxic smoke from oil well fires.  

The articles submitted by the Veteran in support of his claim suggest a relationship between his respiratory complaints and his Gulf War service; however, these articles, which refer to Gulf War veterans generally (as opposed to the specific Veteran in this case) are simply too speculative to establish a nexus to service.  See Bostain, supra.  

However, in light of the evidence of record, including the in-service treatment for pharyngitis and sinusitis, the post-service complaints of coughing and shortness of breath, and the March 2009 assessment of occasional shortness of breath in patient with history of oil fire exposure in Kuwait and Crohn's disease, the Board finds that the Veteran should also be scheduled for a VA examination to evaluate his claimed lung disorder.  See McLendon, 20 Vet. App. at 83.

In evaluating whether the Veteran has a current lung disorder related to service and/or service-connected disability, the examiner should also consider the Veteran's history of tobacco use as, for example, a February 2008 VA treatment record notes that he smoked a half pack per day for two years.

VCAA Notice

The Board further finds that additional notification action, pursuant to the VCAA, is warranted.  An April 2006 VCAA letter, furnished in response to the Veteran's November 2005 claim, advised the Veteran of the information and evidence needed to substantiate claims for service connection for spinal trouble and memory loss.  In response to a February 2006 claim, the RO provided VCAA notice in April 2006 regarding the claims for service connection for a neck condition, back condition, fatigue, and blood deficiencies (B12 and anemia).  An April 2008 VCAA letter advised the Veteran of the information and evidence necessary to reopen claims for service connection for a contusion of the back and B12 deficiency (anemia) and an October 2008 VCAA letter advised the Veteran of the information and evidence necessary to substantiate the claim for service connection for a lung disorder.  However, none of the aforementioned letters addressed secondary service connection.  While a September 2009 VCAA notice letter advised the Veteran of the information and evidence necessary to substantiate his claim for service connection for B12 deficiency/anemia as secondary to irritable bowel syndrome, this letter did not address the other claimed disabilities.  Additionally, the Veteran has not been provided VCAA notice regarding the claim for service connection for a dental disorder, to include gingival recession and/or gum disease, for compensation purposes.  

On remand, the Veteran should be furnished additional VCAA notice which advises him of the information and evidence necessary to substantiate the claims remaining on appeal, as characterized on the title page.  

Earlier Effective Date for the Grant of a 60 Percent Rating for Crohn's Disease

Finally, in a June 2010 rating decision, the RO granted an increased, 60 percent rating for Crohn's disease, effective from April 7, 2008, the date of the Veteran's claim for an increased rating.  In July 2010, the Veteran indicated that he agreed with his rating being increased by 30 percent, but wanted to appeal the effective date, in that he believed that his disability should be rated 60 percent disabling from the date of onset in service.  This was reiterated in his July 2010 VA Form 9.  

By filing a timely NOD with June 2010 rating decision, the Veteran has initiated appellate review on the claim for an effective date earlier than April 7, 2008 for the grant of a 60 percent rating for Crohn's disease; however, the RO has yet to issue an SOC with respect to this claim, the next step in the appellate process.  See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).  Consequently, the claim for an effective date earlier than April 7, 2008 for the grant of a 60 percent rating for Crohn's disease must be remanded for the issuance of an SOC.  Id.  The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202.
  
Accordingly, the case is REMANDED for the following action:

1. Furnish to the Veteran and his representative an SOC as regards the claim for an effective date earlier than April 7, 2008 for the grant of a 60 percent rating for Crohn's disease, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue.  The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here an effective date earlier than April 7, 2008 for the grant of a 60 percent rating for Crohn's disease -a timely appeal must be perfected within 60 days of the issuance of the SOC. 

2.  Associate with the claims file or Virtual VA e-folder all records relied on in the June 2012 and January 2013 rating decisions, to include (1) March and April 2012 Reports of General Information, (2) a June 2012 VA PTSD examination, (3) a December 2011 claim for an increased rating for Crohn's disease, (4) VA examinations dated in January, April, and June 2012, (5) all treatment records from the Mountain Home VAMC and Atlanta VAMC referenced in those decisions which are not presently included in the claims file (to include records from the Mountain Home VAMC dated prior to June 2005, between March 2010 and July 2011, and since May 2012 and records from the Atlanta VAMC dated since March 2002), and (6) a transcript of the March 2011 DRO hearing.  

3. Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claims for service connection for blood deficiencies (including B12 deficiency, anemia, and hypokalemia), memory loss, fatigue, a neck disorder, a back disorder (also claimed as muscular skeletal disease), and a lung disorder (also claimed as interstitial lung disease) on direct and secondary bases.  

This VCAA letter should also advise the Veteran of the information and evidence necessary to substantiate his claim for service connection for a dental disorder, to include gingival recession and/or gum disease, for compensation purposes.  

4.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed disabilities.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.  

A specific request should be made for (1) treatment records from the Mountain Home VAMC, dated since June 2012; (2) treatment records from the Atlanta VAMC, dated prior to January 1997; (3) treatment records from the Veteran's private chiropractor, dated since October 2004; (4) treatment records from the Knoxville emergency room, as identified during VA treatment in June 2009; (5) treatment records from the University of Tennessee emergency room, dated in September 2009; (6) treatment from Lensgraf clinic, as identified during the March 2012 hearing; and (7) treatment records from a private neurologist, dated in the early 1990s, as identified during the March 2012 hearing.  

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

5.  Request from the National Personnel Records Center (NPRC) or any other appropriate entity any additional service treatment records.  

6. Associate with the claims file the Veteran's VA vocational rehabilitation folder.

7.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to evaluate the service-connected left knee disability.    

In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

The examiner should conduct range of motion testing of the left knee (expressed in degrees).  The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination.  If pain on motion is observed, the physician should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.  To the extent possible, the physician should express any such additional functional loss in terms of additional degrees of limited motion.

The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the knee.  If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe.

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

8.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to determine the etiology of any disability manifested by a blood deficiency.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should identify any current disability manifested by a blood deficiency, to include B12 deficiency, anemia, and/or hypokalemia (as opposed to a blood deficiency which is merely a laboratory finding).  

In regard to each OR any diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current condition had its clinical onset during active service or is related to any in-service disease, event, or injury; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected disability, to include Crohn's disease.  

The examiner should address whether any diagnosed deficiency is a symptom of Crohn's disease, or any other service-connected disability, as opposed to a separate and distinct disability.  

In rendering the requested opinion, the examiner should specifically consider the March 2006 and June 2010 VA examination reports, discussed above.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

9.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to address his claimed memory loss.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should specifically state whether the Veteran's complaints of memory loss are attributable to a known diagnostic entity.  If the complaints of memory loss are attributed to a known diagnostic entity, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected disability, to include PTSD.  

The examiner should address whether the Veteran's memory loss is a symptom of PTSD, or any other service-connected disability, as opposed to a separate and distinct disability.  

If there are symptoms related to the Veteran's claimed memory loss that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service.

In rendering the requested opinion, the examiner should consider any pertinent post-service injuries.  In this regard, the Veteran reported during VA treatment in October 2005 that he was involved in a motor vehicle accident in 1996 with a head injury, when he first lost consciousness and was confused for the short term.  A July 1997 private treatment records from Dr. J.M. W., reflects that the Veteran had a head injury at work around 1996, for which he had had several plastic surgeries.  A VA record dated in July 2011, included in the Virtual VA e-folder, reflects that the Veteran called the VAMC regarding recent episodes of blacking out and reported that he was recently "assaulted and hit in the head, neck, stomach."  

The examiner should also consider an October 2005 physician's opinion that the Veteran's decline in his memory could be due to his low B12 and folic acid, as well as the June 2006 impression of memory impairment, possibly related to PTSD.  

The examiner should further consider the Veteran's assertions that his memory loss is related to multiple sedations, chemical and environmental exposures during his Gulf War service, and/or to a pill he took during service to protect him against nerve gas and pesticides.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

10.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to address his claimed fatigue.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should specifically state whether the Veteran's complaints of fatigue are attributable to a known diagnostic entity.  If the complaints of memory loss are attributed to a known diagnostic entity, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected disability, to include PTSD and/or Crohn's disease.  

The examiner should address whether the Veteran's fatigue is a symptom of PTSD, Crohn's disease, or any other service-connected disability, as opposed to a separate and distinct disability.  

If there are symptoms related to the Veteran's claimed fatigue that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome) related to the Veteran's Persian Gulf War service.

In rendering the requested opinion, the examiner should consider the Veteran's assertions that his fatigue is related to chemical and environmental exposures during his Gulf War service, and/or to a pill he took during service to protect him against nerve gas and pesticides.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

11.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to address his claimed neck and back disorders, as well as his claimed muscular skeletal disease.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should specifically state whether the Veteran's complaints regarding his neck, back, muscular skeletal disease, and muscle and joint pain are attributable to a known diagnostic entity.  If the complaints are attributed to a known diagnostic entity, the examiner should provide an opinion regarding each OR any diagnostic entity as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury.  

If service connection is established for a disability manifested by B12 deficiency, the examiner should provide an opinion, in regard to each OR any diagnostic entity as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected disability, to include any disability manifested by B12 deficiency.  

If there are symptoms related to the Veteran's complaints regarding his neck, back, muscular skeletal disease, and muscle and joint pain that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service.

In rendering the requested opinion, the examiner should consider the Veteran's assertions that his complaints are related to chemical and environmental exposures during his Gulf War service.  

The examiner should also consider the December 2008 VA treatment record which appears to relate the Veteran's cervical and thoracic spine pain to an in-service fall and the June 2012 VA physician's opinion that the Veteran's mild cervical degenerative disc disease was at least as likely as not related to an injury, disease, or event occurring during his military service.
  
All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

12.  After all available records have been associated with the claims file or Virtual VA e-folder, the Veteran should be afforded a VA examination to address his claimed lung disorder, as well as his claimed muscular skeletal disease.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should specifically state whether the Veteran's respiratory complaints are attributable to a known diagnostic entity.  If the complaints are attributed to a known diagnostic entity, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury; or in the alternative, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's condition was caused or aggravated by service-connected disability, to include Crohn's disease.  

The examiner should address whether the Veteran's respiratory complaints are symptoms of Crohn's disease, or any other service-connected disability, as opposed to manifestations of a separate and distinct disability.  

If there are symptoms related to the Veteran's respiratory complaints that cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service.

In rendering the requested opinion, the examiner should consider the Veteran's history of tobacco use as, for example, a February 2008 VA treatment record notes that he smoked a half pack per day for two years.

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

13.  Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

14.  Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC 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 appellant has the right to submit additional evidence and argument on the matters that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2012).




______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs