Citation Nr: 1330364	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  09-15 382	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an effective date prior to March 23, 2006, for an award of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression due to a service-connected lumbar spine disability.  

2.  Whether new and material evidence has been received to reopen a claim of service connection for fatigue, memory loss, and loss of attention and concentration, including as due to an undiagnosed illness.

3.  Entitlement to service connection for fatigue, memory loss, and loss of attention and concentration, to include as due to undiagnosed illness.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Rogers, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1981 to April 1995.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Thereafter, the Veteran's file was transferred to the RO in Atlanta, Georgia. 

In June 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.  

The issue of entitlement to service connection for fatigue, memory loss, and loss of attention and concentration to include as due to undiagnosed illness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The claim of entitlement to service connection for PTSD was denied by the RO in a February 2004 rating decision.   

2.  The Veteran filed a notice of disagreement with the February 2004 denial of service connection for PTSD, but after receiving a statement of the case in July 2005, he did not file a formal substantive appeal (VA Form 9).  

3.  Subsequent to the RO's final February 2004 decision, the earliest written communication requesting a determination of entitlement or evidencing a belief of entitlement to service connection for any psychiatric disorder, to include PTSD and depression was received by VA on March 23, 2006 (PTSD) and September 11, 2006 (depression due to service-connected disability).  

4.  No prior unadjudicated claim for service connection for any acquired psychiatric disorder, to include PTSD and depression due to service-connected disability, is of record.  The Veteran has not asserted clear and unmistakable error in the prior February 2004 RO decision.

5.  In a February 2004 rating decision, the RO denied the Veteran's claim for entitlement to service connection for fatigue, memory loss, and loss of attention and concentration, including as due to undiagnosed illness.  The Veteran filed a notice of disagreement with that decision, but after receiving a statement of the case in July 2005, he did not file a formal substantive appeal (VA Form 9).  

6.  Evidence associated with the claims file since the February 2004 decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for fatigue, memory loss, and loss of attention and concentration, including as due to undiagnosed illness, and raises a reasonable possibility of substantiating the claim.   


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than March 23, 2006, for an award of service connection for PTSD and depression associated with a service-connected lumbar spine disability have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 20.202 (2012).

2.  The evidence received since the RO's February 2004 denial of service connection for fatigue, memory loss, and loss of attention and concentration, to include as due to undiagnosed illness, is new and material and the claim for service connection is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

There are some claims to which the VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  With respect to the Veteran's claim for an earlier effective date for the award of service-connection, no VCAA notice is necessary because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder.  The Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the law and regulations governing effective dates if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).

Additionally, the Veteran's appeal arises from disagreement with the effective date following the grant of service-connection.  The Court of Appeals for Veterans Claims (Court) has held that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  The question of whether further notice for such "downstream" issues as an effective date claim is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003).  In this precedential opinion, the General Counsel held that, in such circumstances, a SOC was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue.  Id.  In this case, the required SOC was issued in February 2009, and no additional notice is required.

Concerning VA's duty to assist in the development of the Veteran's effective date claim, the Board notes that the Veteran's service treatment records, post-service treatment records, and lay statements of argument have been obtained.  The Board finds no indication that other available, outstanding service treatment records exist.  Therefore, the Board concludes that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  In any event, as was alluded to above, the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, which will be discussed below.  There is no indication in the record that additional evidence relevant to the issue decided herein is available but absent from the claims folder.

Regarding the Veteran's claim to reopen his previously denied claim of entitlement to service connection for fatigue, to include as due to undiagnosed illness, given the Board's favorable disposition of the claim to reopen, and the need to remand the claim on the merits for additional development, discussion as to VA's compliance with VCAA is not necessary at this time.

In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the issues on appeal has been consistent with said provisions.  The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims decided herein.  See 38 C.F.R. § 3.103 (2012).  Accordingly, the Board will proceed to a decision.

II.  Earlier Effective Date 

The Veteran asserts that he is entitled to an effective date earlier than March 23, 2006, for the award of service connection for PTSD and depression associated with his service-connected lumbar spine disability.  During the June 2013 Travel Board hearing, the Veteran testified that he initially submitted a claim for service connection for depression in 2002, which was denied in a 2004 rating decision.  He stated that he appealed the February 2004 RO denial of service connection and the claim has been ongoing ever since.  He requested an earlier effective date for the award of service connection dating at least 18 months prior to the currently assigned effective date of March 23, 2006, which is approximately September 2004.  His representative indicated that the July 2007 RO decision that awarded service connection for PTSD was based on the Veteran's diagnosis with PTSD in 2005.  He asserted, however, that the Veteran had carried a diagnosis of depression prior the 2005 PTSD diagnosis, which was essentially a change in diagnosis from depression to PTSD.  

In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed.  38 C.F.R. § 3.151(a) (2012).  A "claim" or "application" is defined by VA 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) (2012).  An informal claim is "[a]ny communication or action, indicating intent to apply for one or more benefits . . . ." 38 C.F.R. § 3.155(a) (2012).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  Id.  

The assignment of effective dates for award of disability compensation benefits are governed by statute and implemented by regulation.  Statute provides that unless specifically provided otherwise, the effective date of an award of compensation based on an original claim or a claim reopened after a final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a).  The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release.  38 U.S.C.A. § 5110(b)(1).  

Implementing regulation states that unless otherwise provided the effective date of an evaluation of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  For claims that are reopened based on new and material evidence (other than service department records) received after the final disallowance, the effective date of the award will be the date of the new claim or the date entitlement arose, whichever later.  38 C.F.R. § 3.400(q)(1),(r).  

A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated.  38 C.F.R. § 3.160(c) (2012); see also Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009).  A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim.  Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). 

However, a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim.  Williams v. Peake, 521 F.3d 1348, 1351  (2008).  The later disposition, denying the claim on its merits, also decides that the earlier identical claim must fail.  Id.  The notice given that the later claim has been disallowed informs the veteran that his claim for service connection has failed.  Id.  This notice affords the veteran the opportunity for appeal to the Board, and if necessary, to the Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit), so that he or she might demonstrate that the claim should have been sustained.  Id.

Furthermore, in certain circumstances, pursuant to the "implicit denial doctrine," "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision."  Adams, 568 F.3d at 961.  The implicit denial doctrine also applies when the subsequent adjudication is a Board, rather than a regional office, decision.  Cogburn v. Shinseki, 24 Vet. App. 205, 212 (2010) (citing Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010)). 

While entitlement to VA benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution, and, therefore, veterans have a constitutional right to a fair adjudication of their claims for benefits, the implicit denial doctrine does not violate a claimant's constitutional rights, per se.  See Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (determining that a veteran's disability benefits are nondiscretionary, statutorily mandated benefits, to which a veteran is entitled upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations, and thus entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution); Cogburn, 24 Vet. App. 205.  However, as discussed in detail below, certain criteria must be met in order for the implicit denial doctrine to apply.  Cogburn, 24 Vet. App. 205.  Several factors must be considered in analyzing the applicability of the implicit denial doctrine, including the relatedness of claims, the specificity of the adjudication, the timing of the claims, and whether the claimant was represented at the time the claims were filed.  Id.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

In this case, a review of the claims file does indeed show that the Veteran filed an original claim for service connection for "PTSD" on January 23, 2002.  In August 2002, he submitted a stressor statement detailing a scud missile attacks on or near his military base where he was stationed in Bahrain in January 1991.  VA treatment records dating prior to the February 2004 decision show a diagnosis of depressive disorder, not otherwise specified.  Significantly, VA treatment notes show that upon diagnosis with depressive disorder in March 2001, the Veteran reported combat during his military service, however, he described his military service as "basically uneventful."  He stated that most of his friends had moved out of his life due to financial and medical reasons.  Subsequent VA mental health treatment notes show that the Veteran discussed his military service when questioned, however, he tended to relate complaints consistently diagnosed as depressive disorder to a host of medical, financial, and situational stressors.  

A February 2004 RO decision denied the Veteran's claim for service connection for PTSD as he had not been shown to have a clinical diagnosis of PTSD at anytime during military service or since his claim for service connection for PTSD was received.  In addition, adequate details for verification his claimed stressor in support of his claim for PTSD had not been provided.  

On February 18, 2004, the Veteran was provided with a notice letter that indicated that his claim for service connection for PTSD was denied.  The February 2004 notice letter was accompanied by a copy of the February 2004 rating decision, which outlined the evidence used and reasons for the denial of his claim for service connection for PTSD.  Significantly, the Board observes that in the February 2004 rating decision, the RO acknowledged that VA treatment records showed a diagnosis of depression and treatment for anger management, however, there was no indication that such diagnosis and treatment was related to his military service.  Specifically, the RO indicated that treatment records suggested that such diagnosis and treatment was related to problems with his father.  

In March 2004, the Veteran submitted a timely notice of disagreement merely indicating that he was in disagreement of with the February 2004 rating decision as to the issue of service connection for PTSD.  In January 2005, the Veteran was afforded a VA examination to determine whether he had a diagnosis of PTSD related to military service.  The examiner diagnosed PTSD related to his self-reported stressors of scud missile attacks during military service.  In July 2005, the RO issued a statement of the case that confirmed and continued the denial of service connection for PTSD as the claimed stressor of scud missile attacks had not been verified and information sufficient to enable VA to verify his claimed stressor had not been provided.  The Veteran did not timely submit a substantive appeal (VA Form 9) within 60 days of the issuance of the July 2005 SOC or within 1 year of the February 2004 rating decision.  Thus, the February 2004 rating decision became final.

Since the final denial of service connection for PTSD in February 2004, the fist claim the Veteran filed for service connection for any psychiatric disability was a March 23, 2006 "claim for service connection for PTSD."  In a subsequent statement dated September 11, 2006, the Veteran's representative indicated that the Veteran also wished to claim service connection for depression secondary to his service-connected disabilities pursuant to 38 C.F.R. § 3.310.  In connection with his March 2006 claim to reopen, the Veteran was afforded an additional VA examination in November 2006 to determine whether his depression is related to his service-connected back and wrist disabilities.  The November 2006 VA examiner diagnosed PTSD related to military service and adjustment disorder with depression associated with the Veteran's service-connected lumbar spine disability.  In a July 2007 rating decision, the RO granted service connection for a mental condition, to include PTSD and depression associated a service-connected lumbar spine disability.  

The only service department records associated with the claims file were received by VA in June 1995, and in April 1996, the National Personnel Records Center verified that the Veteran had active military service in Southwest Asia from August 1990 to January 1991.

Based upon the foregoing history, it is evident that the Veteran's grant of service connection for PTSD and depression associated with his service-connected lumbar spine disability did not arise from his original January 2002 claim for service connection for PTSD, but rather, following his March 2006 request to reopen a claim for service connection for PTSD and the September 2006 request for service connection for depression to include as secondary to service-connected disability.  Hence, the Veteran is mistaken in asserting that the pending claims process had been ongoing since January 2002.  

Not until after the February 2004 rating decision were there two separate streams of claims for service connection for two different specified psychiatric conditions.  The claim with regard to PTSD, filed in January 2002, finally disallowed by the RO in February 2004, sought to be reopened in March 2006, and granted in July 2007; and the September 2006 claim with regard to depression secondary to service-connected disability, which was granted by the RO in the July 2007 rating decision.  The Board has considered these two streams in view of Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), and Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

In Boggs, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the "factual basis" of 38 U.S.C.A. § 7104(b) referred to the disease or injury and not the symptoms of the disease or injury and "that a properly diagnosed disease or injury cannot be considered the same factual basis as distinctly diagnosed disease or injury."  Boggs, 520 F.3d at 1335.  It also held that claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim.  Id.  In that case, the two distinctly and properly diagnosed diseases were sensorineural hearing loss and conductive hearing loss and these were found to be different claims.  Id. at 1332.  

In Clemons, the Veteran filed a claim identifying PTSD as the nature of the sickness, disease or injuries for which the claim was made.  Clemons, 23 Vet. App. at 5.  During the course of his claim, the Veteran was diagnosed as suffering from anxiety disorder and schizoid personality disorder rather than PTSD.  Id. at 4.  The Board denied Mr. Clemons' appeal on the basis that he had not been diagnosed with PTSD.  Id.  The U.S. Court of Appeals for Veterans Claims (Court) found that the Board had erred by too narrowly construing his claim. 

The Court distinguished Mr. Clemons case from Boggs, and provided an explanation, including reference to an earlier case, Ingram v. Nicholson, 21 Vet. App. 232  (2006), as follows:

Boggs stands for the proposition that, if there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for VA's consideration, the second diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim.

In contrast to Ingram, which addressed the scope of a claim when it is first filed by the claimant, Boggs relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence.  In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied.  However, the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits.  Id. at 8 (internal citations omitted).

In this case, the Board finds that Boggs is controlling as to the claims received in 2002 (PTSD) and 2006 (depression due to service-connected disability).  Here, at the time the RO received the Veteran's claim of entitlement to service connection for depression in 2006, the RO had already denied a claim of entitlement to service connection for PTSD in 2004.  The claim for service connection for depression was properly treated as a new claim.  Had the RO treated that claim as a claim to reopen, the Veteran would have had the additional burden of producing new and material evidence to reopen the previously denied claim.  When it received the March 2006 claim for PTSD, it was proper to treat the claim as one to reopen, given that service connection for the claimed condition - PTSD - had previously been denied in a then final decision.  Here, there are two distinctly diagnosed diseases, depressive disorder, which was initially claimed and etiologically related by the November 2006 VA examiner to a service-connected lumbar spine disability, and PTSD which has been claimed and etiologically related by the January 2005 and November 2006 VA examiners to psychological trauma during and related to the Veteran's active military service and scud missile attacks therein.  The Board therefore finds that the claim received in 2002 was a separate claim from the claims received in 2006.  The claim granted was that received in 2006.  Hence, an effective date based on the 2004 claim would not be proper.

The claim that was granted was received in March 2006, and in the February 2009 supplemental statement of the case indicated that the grant of service connection in the July 2007 rating decision resulted from the findings and opinions on VA examination in November 2006, which is the RO's reference to new and material evidence as it pertains to the claim for service connection for PTSD.  The only service records associated with the claims file were received in June 1995, and in April 1996, the National Personnel Records Center verified that the Veteran had service in Southwest Asia from August 1990 to January 1991.  The new and material evidence that provide the basis for reopening the claim, and that led to the award of service connection for PTSD, was other than service department records.  Hence, application of 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400 (q)(1), (r) allows for an effective date no earlier than the date of the claim that led to the reopening.  That date was March 23, 2006, the date the RO has assigned.  

Unless the Board can discern some intention on the part of the Veteran to timely appeal the RO's February 2004 rating decision that denied entitlement to service connection for PTSD or that he indicated some intention to seek service connection for depression prior to March 23, 2006, an effective date earlier than March 23, 2006, cannot be assigned.  In this regard, the claims file simply does not contain any such evidence.

Overall, there is simply no legal basis upon which to grant an effective date earlier than March 23, 2006, for the award of service connection for PTSD and depression associated with a service-connected lumbar spine disability.  Accordingly, the claim must be denied.  

III.  New and Material Evidence

It appears that the RO denied service connection for fatigue, memory loss, and loss of concentration and attention, to include as due to an undiagnosed illness, in February 2004.  In the July 2005 statement of the case, the RO reasoned that there was no objective evidence of fatigue, a chronic memory loss, or loss of concentration and attention that has existed for a period of six months or more.  

The evidence of record at the time of the February 2004 denial included the Veteran's service treatment records and examination reports and post-service VA treatment records and examination reports.  

The Veteran's service treatment records showed that upon a finding of anemia on a routine blood test in May 1991, the Veteran reported so fatigue on is return from service in Southwest Asia in January 1991, however, he reportedly felt fine at the time of the work-up for a finding of anemia.  During a post-service VA general medical examination, there were no complaints or findings of memory loss, fatigue, or loss of concentration and attention.  VA treatment records intermittently noted that the Veteran reported that he experienced fatigue, memory loss, and loss of concentration and attention.  On a January 2005 VA Gulf War Protocol examination, the examiner stated that fatigue and memory impairment were examined for but not found on examination.  

Based on this evidence, the RO concluded in February 2004 that service connection was not warranted for fatigue, memory loss, and loss of concentration and attention due to undiagnosed illness.   

The present claim was initiated by the Veteran in March 2006.  VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  

Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim."  38 C.F.R. § 3.156(a).

New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Evidence added to the record since the February 2004 denial includes ongoing VA treatment records, the Veteran's lay statements and testimony, and a May 2007 VA Gulf War Protocol examination.  

Ongoing VA treatment records document the Veteran's subjective complaints of fatigue, memory loss, and loss of concentration and attention.  

On VA Gulf War Protocol examination in May 2007, the examiner diagnosed fatigue and memory loss with onset established in 1991.  Associated problems included fatigue, loss of concentration and attention, and memory loss.

During the June 2013 Travel Board hearing before the undersigned, the Veteran testified that his fatigue, memory loss, and loss of concentration and attention have been present since shortly after his return from active service in Southwest Asia.  He stated that such symptoms have progressively gotten worse with time.  

As the Veteran's claimed signs and symptoms of fatigue, memory loss, and loss of concentration and attention are non-medical indicators that are capable of independent verification, the Board finds that objective indications have been shown.  See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report symptoms observable to him through the five senses, as this requires only personal knowledge).

All of this evidence is new; it was not previously of record and is not cumulative.  The newly submitted evidence is also relevant in that it provides objective medical evidence that the Veteran has objective indications of fatigue, memory loss, and loss of concentration and attention that have persisted longer than six months.  Given the combination of the objective medical evidence of record on VA examination in May 2007 and the presumed credibility of the Veteran's lay statements and testimony of record, the additional evidence reveals that the Veteran may have objective indications of a chronic disability listed in paragraph (b) of 38 C.F.R. § 3.317, which have become manifest to a degree of 10 percent or more and that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 

Hence, the Veteran's application to reopen the claim for service connection for fatigue, memory loss, and loss of concentration and attention as due to undiagnosed illness, must be granted.  38 U.S.C.A. § 5108. 


ORDER

An effective date earlier than March 23, 2006, for an award of service connection for PTSD and depression associated with a service-connected lumbar spine disability is denied.

New and material evidence having been submitted, the claim for service connection for fatigue, memory loss, and loss of attention and concentration, including as due to undiagnosed illness, is reopened.   


REMAND

Reopening the claim for service connection for fatigue, memory loss, and loss of attention and concentration, including as due to undiagnosed illness, does not end the inquiry.  A determination on the merits is still required.  However, for reasons explained below, additional development is needed before the claim may be adjudicated.   

At the outset, a 1995 letter of record from the Nashville VAMC alluded to results of the Veteran's 1995 Gulf War Registry examination.  A review of the claims file and Virtual VA shows that a request for outstanding treatment records from the Nashville VAMC dating prior to 1998 is necessary.

The Board also notes that service connection is currently in effect for orthopedic wrist and lumbar spine disabilities, as well as PTSD and depression associated with a lumbar spine disability.  Following a review of VA treatment records and the January 2005 and May 2008 VA Gulf War Protocol examination reports, it is unclear whether the claimed symptomatology of fatigue, memory loss, and loss of concentration and attention have been attributed to those clinical diagnoses.  Indeed, VA mental health treatment notes frequently show diagnostic assessments of PTSD and depression in relation to the Veteran's complaints of fatigue, memory loss, and loss of concentration and attention.  In addition, VA primary care notes show that during pain assessments, the Veteran has indicated that his pain interferes with sleep and concentration.  These records have not been acknowledged or discussed on prior Gulf War Protocol VA examination reports dated in January 2005 and May 2007.  In this regard, when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Secretary must ensure that any medical opinion is "based on sufficient facts or data" and it must be clear that the examiner has indeed considered "all procurable and assembled data."  Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  When the record leaves this issue in doubt, it is the Board's duty to remand for further development.  Id.  Accordingly, the Board finds that the Veteran must be afforded a new examination to determine the nature and etiology of his claimed symptomatology of fatigue, memory loss, and loss of concentration and attention, and whether such symptoms by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis, to include his service-connected spine, wrist, PTSD, depression disabilities.  

It also appears that VA treatment records were most recently obtained and associated with the claims file in November 2006.  Any relevant ongoing VA treatment records should be obtained from all VA medical facilities identified by the Veteran.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he provide information sufficient to enable VA to obtain all outstanding pertinent VA medical and psychiatric treatment records dating since November 2006.  

Also request from the Nashville VAMC all records of medical treatment pertaining to the Veteran dating prior to 1998, to specifically include all records pertaining to the Veteran's Gulf War registry examination in or around 1995.  This records request must explicitly direct that a search be conducted of all appropriate records repositories where archived/retired treatment records may be stored.  

All records and/or responses received should be associated with the claims file.

2.  Then, schedule the Veteran for a VA examination(s) with an examiner of appropriate expertise 
in connection with his claims for service connection for fatigue, memory loss, and loss of concentration and attention, including as due to undiagnosed illness.  The claims folder, copies of pertinent records in the electronic Virtual VA file, and a copy of this remand must be made available to the examiner for review in conjunction with the examination.  The examiner must review all of the evidence of record and conduct all necessary testing.  

Based on the examination and review of the record, as to each of the claimed symptoms of fatigue, memory loss, and loss of memory and concentration, the examiner should express an opinion whether it is at least as likely as not (50 percent probability or greater) that such symptom is attributed to any diagnosed disease entity to include the Veteran's service-connected psychiatric disorders or pain associated with his numerous orthopedic disorders.  

If it is determined that the Veteran's symptoms are due to a known disease or injury (diagnosed versus undiagnosed illness), the examiner(s) is requested to determine whether the underlying disease or injury was incurred during service and, in the case of a disease, is linked to any incident of active duty.  The examiner must specifically address past indications in VA treatment notes of a relationship between the claimed symptoms the Veteran's mental health and orthopedic symptoms and/or medications.

The examiner is advised that an undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.

A complete rationale for any opinion expressed should be included in the examination report.  If the examiner(s) is unable to answer any question presented without resort to speculation, he or she should so indicate.

The examiner is further advised that a medically unexplained chronic multi-symptoms illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Disabilities that have existed for at least six months and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered "chronic." See 38 C.F.R. § 3.317 (a) (2), (3).

3.  After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The RO/AMC must ensure that the examiner documented their consideration of Virtual VA.  If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once.

4.  The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

5.  After completion of any action deemed appropriate in addition to that requested above, readjudicate the claim.  All applicable laws and regulations should be considered.  If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs