Citation Nr: 1331668 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-34 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a depressive disorder, claimed as an undiagnosed illness. 2. Entitlement to service connection for erectile dysfunction, claimed as an undiagnosed illness, to include secondary to a depressive disorder. 3. Entitlement to service connection for lumbar spine arthritis, claimed as an undiagnosed illness. 4. Entitlement to service connection for continuous body aches and joint pains, claimed as an undiagnosed illness. 5. Entitlement to service connection for a gastrointestinal disorder, claimed as an undiagnosed illness. 6. Entitlement to service connection for migraine headaches, claimed as an undiagnosed illness. 7. Entitlement to service connection for a skin rash, claimed as an undiagnosed illness. 8. Entitlement to service connection for allergic rhinitis, claimed as an undiagnosed illness. 9. Entitlement to service connection for sinusitis, claimed as an undiagnosed illness. 10. Entitlement to service connection for sleep apnea with breathing problems, claimed as an undiagnosed illness, to include as secondary to allergic rhinitis and sinusitis. 11. Entitlement to service connection for chest pains, claimed as an undiagnosed illness. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to March 1991, to include active service in the Southwest Asia theater of operations during the Persian Gulf War. He had subsequent service in the Naval Reserves. This matter comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2013, the Veteran and his fiancée testified at a videoconference Board hearing before the undersigned Veterans Law Judge. The medical evidence shows diagnoses of allergic rhinitis and sinusitis. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board must consider these disorders as part of the issues on appeal. There is medical evidence that the erectile dysfunction was caused by medications used to treat the depressive disorder and that the sleep apnea is due in part to the allergic rhinitis. Pursuant to Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Board must consider these theories of entitlement. In light of the above, the issues are as stated on the title page. All issues except entitlement to service connection for a depressive disorder and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The weight of evidence shows that the Veteran's depressive symptoms are due to a depressive disorder rather than an undiagnosed illness manifested by neuropsychological signs or symptoms. 2. The evidence is in equipoise as to whether the depressive disorder began in active service. 3. The weight of the evidence shows that the Veteran's symptom of impotence is due to erectile dysfunction rather than an undiagnosed illness manifested by impotence. 4. The weight of the evidence shows that the erectile dysfunction was caused the use of medication to treat the now-service-connected depressive disorder. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, a depressive disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2013). 2. Erectile dysfunction was caused by the now-service-connected depressive disorder. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, neuropsychological signs or symptoms. 38 C.F.R. § 3.317(b). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Prior to the Veteran filing his claim in April 2007, 38 C.F.R. § 3.310(b) was amended effective October 10, 2006 to provide the following as to aggravation of nonservice-connected disabilities: 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. However, VA will not concede that 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. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)). Analysis Depressive disorder Private and VA treatment records as well as a January 2008 VA psychiatric examination all reflect a diagnosis of a depressive disorder, variously diagnosed as major depressive disorder and depressive disorder not otherwise specified. Therefore, the weight of evidence shows that the Veteran's depressive symptoms are due to a depressive disorder rather than an undiagnosed illness manifested by neuropsychological signs or symptoms. The Veteran, who is a drug and alcohol mental health counselor but with apparently only an associate degree in criminal justice, claims that he has been depressed since active service. The Veteran is competent to report this symptomatology, and the Board finds him credible because he reported at his February 1991 separation examination that he had had a history of depression or excessive worry even though he later denied this symptomatology during two subsequent Naval Reserves examinations. A psychiatric evaluation was not conducted at the February 1991 separation examination, and later psychiatric evaluations done during Naval Reserves examinations were normal. The Veteran, however, was initially diagnosed with a psychiatric disorder, specifically an anxiety disorder, in May 1995 and a depressive disorder was first diagnosed later in August 1997. More importantly, the Veteran reported that his depressive symptoms began in service to both a VA social worker in July 2007 and the VA examiner in January 2008 that he had been depressed since service. Both VA medical professionals diagnosed a depressive disorder based on the appellant's reporting of symptomatology, which they must have found credible. Although neither VA medical professional explicitly stated that the depressive disorder began in service based on the claimant's reporting of symptomatology, it appears that they implicitely accepted that his depressive symptomatology did begin in service, which is corroborated by his reporting during his separation examination. Having reviewed the complete record, the Board finds that the evidence is in equipoise as to whether that the Veteran's depressive disorder is related to active service, and that service connection is in order. 38 U.S.C.A. §§ 1110, 1131, 5107. Erectile dysfunction Private treatment records and a January 2008 VA general medical examination report reflect a diagnosis of erectile dysfunction. Hence, the weight of the evidence shows that the Veteran's symptom of impotence is due to erectile dysfunction rather than an undiagnosed illness manifested by impotence. The January 2008 VA general medical examiner opined that the erectile dysfunction was most likely due to his psychiatric medications in the past. The medical evidence shows that the Veteran has taken psychiatric medications for his now-service-connected depressive disorder. Thus, service connection by means of causation is in order. 38 U.S.C.A. §§ 1110, 1131, 5107. ORDER Entitlement to service connection for a depressive disorder is granted. Entitlement to service connection for erectile dysfunction as secondary to the service-connected depressive disorder is granted. REMAND The Veteran's service treatment records show that in October 1989 he was treated for complaints of low back pain. The January 2008 VA general medical examiner diagnosed lumbar spine arthritis but not render an opinion on whether that disorder is related to active service. Thus, a VA medical opinion on the etiology of the lumbar spine arthritis is necessary. The January 2008 VA general medical examiner stated that there was insufficient evidence to warrant a specific diagnosis for the Veteran's myalgias and arthralgias of the knees and elbows. Service treatment records show that in July 1988 he had complaints of myalgias of the knees and wrists and that the diagnoses included a viral syndrome. In December 1989, the Veteran had complaints of general body aches and the diagnosis was possible gastroenteritis. In April 1990, the appellant had complaints of body aches and the diagnosis was recurring upper respiratory infection. Therefore, another VA examination is necessary. The January 2008 VA general medical examiner stated that the Veteran's heartburn and abdominal pain suggested a diagnosis of gastritis, but that there was insufficient evidence to warrant a specific diagnosis at this time. At the June 2013 hearing, the appellant testified that he had bowel discomfort. In December 1989, the Veteran had complaints of diarrhea and the diagnosis was possible gastroenteritis. Accordingly, another VA examination is necessary. The January 2008 VA general medical examiner diagnosed migraine headaches. In 1988, 1989, and 1990, the Veteran complained at various times of headaches and the assessments were an upper respiratory infection. Hence, a VA medical opinion on the etiology of the migraine headaches is necessary. The January 2008 VA general medical examiner noted a history of a skin rash in the past. The examiner opined that there was insufficient evidence to warrant a specific diagnosis, but that by the history, it sounded as though he had a viral exanthem. Service treatment records show that the Veteran had a heat rash in September 1987 and that in July 1988 he was treated for a skin rash consistent with dyshidrotic eczema. Consequently, another VA examination is necessary to determine whether he has or has had a skin disability at the time of the claim that was filed in April 2007 or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At the October 1986 entrance examination, the Veteran stated in the report of medical history that he had had a history of sinusitis and hay fever. The physician noted the appellant had seasonal hay fever and sinusitis, which were treated with Sudafed. Hay fever is a type of allergic rhinitis that occurs at the same time every year. Dorland's Illustrated Medical Dictionary, page 700 (31st ed.). Thus, the weight of the evidence shows that the Veteran's sinusitis and allergic rhinitis preexisted active service. A VA medical opinion addressing whether the sinusitis and allergic rhinitis were aggravated by active service is necessary. A March 2003 private treatment record shows an impression that the Veteran's sleep apnea is probably secondary to nasal congestion. The appellant reported in his April 2007 claim that he was treated for sleep apnea at the Parkview Medical Center in Pueblo, Colorado. In light of the above, a VA medical opinion is necessary as well as an attempt to obtain records from the Parkview Medical Center in Pueblo, Colorado. The Veteran testified that he is currently receiving treatment for all disorders on appeal, and the RO last obtained treatment records from the Denver VA Medical Center and Pueblo VA community-based outpatient clinic in February 2008. The claimant last submitted records from his private doctor, Dr. Anaya of Pueblo, Colorado, in May 2007. The AMC should ask the Veteran to identify all treatment for his disorders remaining on appeal as well as obtain all treatment records from the Denver VA Medical Center and Pueblo VA community-based outpatient clinic since February 2008 and from Dr. Anaya of Pueblo, Colorado, since May 2007. As the Board is considering the claim of entitlement to service connection for sleep apnea as secondary to sinusitis and allergic rhinitis, the Veteran needs to be provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). The Veteran's representative has asserted that his organization never received a copy of the Statement of the Case. While this case is in remand status, another copy of such document should be provided to the accredited representative. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 2. Ask the Veteran to identify all treatment for his lumbar spine arthritis, continuous body aches and joint pains, gastrointestinal disorder, migraine headaches, skin rash, allergic rhinitis, sinusitis, sleep apnea, and chest pains, and obtain any identified records. Obtain all records from the Parkview Medical Center in Pueblo, Colorado, and all records from Dr. Anaya of Pueblo, Colorado, since May 2007. Regardless of the appellant's response, obtain all treatment records from the Denver VA Medical Center and Pueblo VA community-based outpatient clinic since February 2008. 3. A copy of the Statement of the Case should be provided to the Veteran's accredited representative. 4. Thereafter, afford the Veteran an appropriate VA examination to determine the nature of his lumbar spine arthritis and continuous body aches and joint pains. The claims folder is to be made available to the examiner to review. The examiner ask the appellant to provide detailed history of his lumbar spine symptomatology, body aches, and joint pains. As to the lumbar spine arthritis, the examiner should opine as to whether there is a 50 percent or better probability that the claimant's lumbar spine arthritis is related to active duty, to include low back treatment during active duty and service in the Southwest Asia theater of operations during the Persian Gulf War. A complete rationale for any opinion offered must be provided. As to the myalgias and arthralgias affecting the elbows, the examiner should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service. A complete rationale for any opinion offered must be provided. As to the myalgias and arthralgias affecting the knees, should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service. A complete rationale for any opinion offered must be provided. For any other body aches, joint paints, myalgias, and arthralgias reported on examination, the examiner should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service. A complete rationale for any opinion offered must be provided. 5. Afford the Veteran an appropriate VA examination to determine the nature of his gastrointestinal disorder. The claims folder is to be made available to the examiner to review. The examiner ask the appellant to provide detailed history of his gastrointestinal symptomatology. The examiner should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service. A complete rationale for any opinion offered must be provided. 6. Afford the Veteran an appropriate VA examination to determine the nature of his migraine headaches. The claims folder is to be made available to the examiner to review. The examiner ask the appellant to provide detailed history of his migraine headaches. The examiner should opine as to whether there is a 50 percent or better probability that the claimant's migraine headaches is related to active duty, to include headache treatment during active duty and service in the Southwest Asia theater of operations during the Persian Gulf War. A complete rationale for any opinion offered must be provided. 7. Afford the Veteran an appropriate VA examination to determine the nature of his skin rash. The claims folder is to be made available to the examiner to review. The examiner ask the appellant to provide detailed history of his skin rash. The examiner should opine as to whether there is a 50 percent or better probability that any skin rash symptomatology that the Veteran has or has had since he filed his claim in April 2007 is due to undiagnosed illness. A complete rationale for any opinion offered must be provided. As to any skin symptoms that the Veteran has or has had since April 2007, the examiner should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service, to include treatment of heat rash and a skin rash consistent with dyshidrotic eczema. A complete rationale for any opinion offered must be provided. 8. Afford the Veteran an appropriate VA examination to determine the nature of his allergic rhinitis, sinusitis, sleep apnea, and chest pains. The claims folder is to be made available to the examiner to review. The examiner ask the appellant to provide detailed history of his allergic rhinitis, sinusitis, sleep apnea, and chest pains. As to the allergic rhinitis, the examiner should opine as to whether there is a 50 percent or better probability that the claimant's allergic rhinitis underwent an increase in severity during active duty. A complete rationale for any opinion offered must be provided. If there is a 50 percent or better probability that the claimant's allergic rhinitis underwent an increase in severity during active duty, the examiner should opine on whether it is undebatable that the increase in severity during service was due to the natural progress of the allergic rhinitis. As to the sinusitis, the examiner should opine as to whether there is a 50 percent or better probability that the claimant's sinusitis underwent an increase in severity during active duty. A complete rationale for any opinion offered must be provided. If there is a 50 percent or better probability that the claimant's sinusitis underwent an increase in severity during active duty, the examiner should opine on whether it is undebatable that the increase in severity during service was due to the natural progress of the sinusitis. As for the sleep apnea, the examiner should opine as to whether there is a 50 percent or better probability that the claimant's sleep apnea is related to active duty, to include service in the Southwest Asia theater of operations during the Persian Gulf War. A complete rationale for any opinion offered must be provided. For the sleep apnea, the examiner should opine as to whether there is a 50 percent or better probability that the claimant's sleep apnea has been caused or aggravated (that is, permanently worsened) by the allergic rhinitis or sinusitis beyond natural progression. If aggravation by either allergic rhinitis or sinusitis is found, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. As to the chest pains, the examiner should offer an opinion as to the etiology of those symptoms, to include commenting on whether they are attributable to a known clinical diagnosis. If the examiner cannot identify a disease or disability which causes the reported symptoms, the examiner should so state. If a disease or disability is identified, the examiner should specifically comment whether it is at least as likely as not that such disability had its onset during a period of active service, or is related to his any event or injury in service. A complete rationale for any opinion offered must be provided. 9. Thereafter, the AMC should readjudicate the claims remaining on appeal. If any benefit is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs