Citation Nr: 1341492 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-26 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, claimed as due to Persian Gulf environmental hazards. 2. Entitlement to service connection for irritable bowel syndrome (IBS), to include as due to an undiagnosed illness. 3. Entitlement to service connection for a disability manifested by shortness of breath. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1992 to January 1996. These matters came to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in March 2013. In a June 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for pes planus, right and left feet, assigning separate 10 percent disability ratings, effective July 30, 2008. The grant of service connection for these disabilities constitute a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period. Thus, those issues are not currently in appellate status. Id. The issues of entitlement to service connection for IBS and a disability manifested by shortness of breath are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT An acquired psychiatric disability, to include anxiety, did not manifest during active service, did not manifest within a year of separation from service, and is not otherwise due to active service. CONCLUSION OF LAW The criteria for a grant of service connection for an acquired psychiatric disability, to include anxiety, have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a letter in September 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been satisfied, to include substantial compliance with the Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's service treatment and personnel records have been obtained. VA treatment records have been associated with the claims folder and Virtual VA claims folder. A May 2013 VA Memorandum reflects that there are no other treatment records dated from 2003 to August 5, 2008 from the Dallas, Texas VA Medical Center (VAMC). The Veteran has submitted treatment records from Higgins Family Clinic dated from 2002 to 2013. He did not respond to VA's March 2013 query that he complete appropriate releases pertaining to any post-service medical providers. The Veteran was afforded a VA examination in March 2009, which is discussed below. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, service connection based solely on continuity of symptomatology is only available for chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If a psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a psychosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Initially, the Board notes that the Veteran has claimed entitlement to service connection for an acquired psychiatric disability, to include as due to an undiagnosed illness. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f); 38 C.F.R. § 3.317(d). Service personnel records reflect that the Veteran had active service in the Persian Gulf from October 1, 1990 to April 15, 1991. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) 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, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995-97 (2010). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834 -81836 (December 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a),(b). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). With regard to the Veteran's claimed acquired psychiatric disability, a diagnosis of anxiety disorder not otherwise specified with features of generalized anxiety and panic disorder has been diagnosed by a March 2009 VA examiner. The evidence of record does not otherwise reflect signs or symptoms that may be manifestations of an undiagnosed illness including neuropsychological signs or symptoms. Thus, 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a),(b) are inapplicable to the Veteran's claim. With regard to whether his diagnosed anxiety disorder is otherwise due to active service, the Veteran asserted in his April 2008 claim of service connection for "nervousness" that his disability began in 1993. Based upon review of the entirety of the evidence of record, the Board finds, however, that a preponderance of the evidence is against a finding that an acquired psychiatric disability is due to service. Review of service treatment records reflect no notations of any mental health complaints or diagnoses. A November 1992 Report of Medical History and a September 1995 Report of Medical History, completed by the Veteran for separation purposes, reflects that he checked the 'No' boxes for 'depression or excessive worry' and 'nervous trouble of any sort.' He also wrote on both reports that he was "in good health" and not taking any medication. Reports of Medical Examinations dated in November 1992 and September 1995 reflects that the Veteran's 'psychiatric' state was clinically evaluated as normal. A September 1997 Report of Medical History completed by the Veteran after he separated from active service also reflects that he checked the 'No' boxes for 'depression or excessive worry' and 'nervous trouble of any sort.' A September 1997 Report of Medical Examination reflects that his 'psychiatric' state was clinically evaluated as normal. In August 2008, the Veteran underwent a VA Gulf War special registry examination. On a system review, it was noted that he had no depression, anxiety, PTSD or nightmares. VA outpatient treatment records are otherwise negative for any mental health complaints or diagnoses. The Veteran told the March 2009 VA examiner that about two years prior his primary care physician prescribed medicine for anxiety but he reported that he could not tolerate the medications even at low doses. He also reported that about a year prior he went to the hospital due to panic symptoms. As discussed above, however, the Veteran has not identified either treating provider to allow for request of any relevant records. Moreover, while the Veteran did submit records from Higgins Family Clinic dated from July 9, 2002 to April 10, 2013, such records do not reflect treatment for a mental health condition, nor do they reflect that he was prescribed medication for a mental health condition. Thus, the post-service medical records are negative for complaints or treatment for a psychiatric disorder. The first indication of a diagnosed disorder is contained in the March 2009 VA examination report, thus over a decade after separation from service. At the March 2009 VA examination, the examiner noted that the Veteran did not describe life-threatening events that he was directly involved in, even though he reported that he was in a danger zone during service. He reported that he feared what could happen if his ship was attacked. He stated that two missiles hit his ship in 1988 before his service and this heightened his fear of being attacked while at sea. He reported that guns were shot off without warning. He reported feeling isolated and overwhelmed with stress when he was on the ship and that he had a "nervous breakdown" but did not tell anyone. The examiner indicated that there was no complaint or diagnosis of mental illness while in service. Upon mental status examination, the examiner diagnosed anxiety disorder not otherwise specified with features of generalized anxiety and panic disorder. The examiner commented that the anxiety is related to various stressors, including work related stress and the stress of juggling family commitments with work. The examiner stated that the onset of this disorder is not fully clear but there was no objective evidence documenting complaints or diagnosis of these symptoms during service or within a year after leaving service. The Veteran subjectively reported that he noted some of these symptoms while in service, but the examiner did not see any evidence of that in the record. Thus, the examiner opined that the anxiety disorder was less likely than not due to service. The examiner also noted that the Veteran described his symptoms as emerging in response to numerous recent stressors, this having mild to moderate impact on occupational functioning but he described a fairly positive social life, happy marriage, and getting along with members of his church. The examiner stated that the full criteria for posttraumatic stress disorder (PTSD) had not been met and he did not describe valid exposure criteria for such a diagnosis. The Board accepts this VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a mental status examination, a review of all historical records, and contains detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, there is no qualified medical opinion to the contrary. The Board acknowledges that a lay person may speak as to etiology as to nexus in some limited circumstances in which such nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, however, the question of causation here involves a less immediately-observable relationship that is beyond the scope of the Veteran's competence to expound on. Indeed, the record here reveals other factors that have been attributed as the cause of his anxiety, to include post-service occupational and family stressors. Thus, there is no obviously identifiable cause-and-effect between current symptoms and active service. Moreover, while the Veteran currently asserts that he experienced symptoms of nervousness during service, he specifically denied such symptoms at the time of his separation from service and in a report which he completed shortly after separation from service. The Veteran's current assertions, offered over a decade after separation from service, are less credible than the contemporaneous service records which reflect no complaints or diagnoses. In sum, there is no basis for a grant of service connection for an acquired psychiatric disability, to include anxiety. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder, is denied. REMAND Additional development is required in this case before the remaining matters on appeal may be finally adjudicated. In this regard, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must again remand the case for compliance with the remand orders. Irritable bowel syndrome As detailed in the March 2013 Board Remand, the Veteran reported to the March 2009 VA examiner that for the last 10 to 12 years he has suffered from frequent heartburn, indigestion, abdominal bloating, nausea, bloating, and loose stools. This examiner stated that his cramping pain and loose stools three or four times a week was due to IBS. On Remand, it was instructed that a physician should examine the Veteran and indicate whether he has signs and symptoms of IBS and whether such signs and symptoms can be attributed to a known clinical diagnosis, and whether any disability is due to active service. In April 2013, the Veteran underwent a VA examination with a physician assistant to assess the nature and etiology of his claimed irritable bowel syndrome. The Board requested that the Veteran be examined by a physician. Additionally, the physician assistant indicated that while the Veteran reported symptoms that could be due to IBS, he has not undergone formal testing to arrive at a definitive diagnosis and thus a formal diagnosis of IBS has not been established. The physician assistant indicated that symptoms were first documented in March 2009; thus, it is clear that this examiner did not consider a July 2002 VA outpatient treatment record which reflects complaints of reflux and an assessment of dyspepsia and other specified disorders of function of the stomach. Finally, it does not appear that the physician assistant adequately considered the Veteran's reports of gastrointestinal symptomatology following service in formulating an opinion. Given the above, the Board finds that the Veteran should be afforded a new VA examination with a physician with appropriate expertise to assess the nature and etiology of his claimed IBS. Disability manifested by shortness of breath In April 2013, the Veteran underwent a VA examination with a physician assistant wherein benign or malignant neoplasm or metastases of respiratory system, specifically calcified granulomas, were diagnosed. In August 2013, the Veteran underwent a VA examination with another physician assistant. Neither examination conforms to the Board remand instructions requesting an examination performed by a physician. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a physician with appropriate expertise pertaining to his claimed irritable bowel syndrome. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. All appropriate testing should be performed. The examiner should respond to the following: a) Does the Veteran have any pertinent signs and symptoms of irritable bowel syndrome, and, if applicable, can any such signs and symptoms be attributed to a known clinical diagnosis; b) For any irritable bowel syndrome or other gastrointestinal disability identified, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of active service from January 1992 to January 1996, or is otherwise related to his period of active service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his report must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting his report. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. Schedule the Veteran for a VA examination with a physician with appropriate expertise to address the nature and etiology of his claimed disability manifested by shortness of breath, to include whether he has a disease related to asbestos exposure. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. All appropriate testing should be performed. The examiner should respond to the following: a) Please identify all respiratory disabilities, to include any manifested by shortness of breath, and state whether he has a disease related to asbestos exposure. b) For any disability identified, is it at least as likely as not (a 50 percent or higher degree of probability) due to the Veteran's period of active service in the Persian Gulf or the result of asbestos exposure. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his report must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting his report. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 3. After completion of the above, review the expanded record and adjudicate the claims of service connection for IBS, to include pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, and a disability manifested by shortness of breath. If either of the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs