Citation Nr: 1513301 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 06-27 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for blood clots of the right leg, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 4. Entitlement to service connection for migraines, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 5. Entitlement to service connection for hemoptysis (claimed as blood in the sputum), to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 6. Entitlement to service connection for chondroma of the left ring finger (claimed as tumor on the bone), to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 7. Entitlement to service connection for irritable bowel syndrome (IBS). 8. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to March 1992. His DD 214 lists his military occupational specialty as a combat engineer. He had over five months of foreign service and his awards include Saudi Arabia - Kuwait Liberation Medal and the Southwest Asia Service Medal. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 rating decision in which the RO, inter alia, denied the claims on appeal. In December 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in August 2006. In August 2007, the Veteran and his wife testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A copy of the transcript is of record. In October 2007, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After partially completing the requested development, the AMC continued to deny the claims (as reflected in a December 2009 supplemental SSOC (SSOC)) and returned the matters on appeal to the Board for further appellate consideration. In April 2011, the Board again remanded the claims on appeal to the RO, via the AMC, to complete the previously-requested development. After accomplishing further action, the AMC again denied the claims (as reflected in an August 2012 SSOC) and returned the matters on appeal to the Board for further appellate consideration. In December 2012, the Board again remanded the claims for the RO, via the AMC, to complete the requested development. After accomplishing further action, the AMC again denied the claims (as reflected in an April 2013 SSOC) and returned the matters on appeal to the Board for further appellate consideration. In a March 2014 decision, the Board denied service connection for bilateral hearing loss, tinnitus, residuals of a right ankle injury, blood clots of the right leg, migraines, hemoptysis (claimed as blood in the sputum), and chondroma of the left ring finger (claimed as tumor on the bone). The Veteran appealed the Board's March 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 Order, the Court granted a Joint Motion (filed by representatives of both parties) to vacate and remand that portion of the March 2014 Board decision that denied service connection for bilateral hearing loss, tinnitus, blood clots of the right leg, migraines, hemoptysis (claimed as blood in the sputum), and chondroma of the left ring finger (claimed as tumor on the bone); and returned these matters to the Board for further proceedings consistent with the Joint Motion. Notably, the denial of service connection for residuals of a right ankle injury was not disturbed. Subsequently, by rating decision dated in January 2015, the RO, inter alia, denied service connection for IBS and depression. The Veteran filed an NOD with regard to the denial of these claims in January 2015, but no SOC has yet been issued. As regards representation, the Board notes that, although the Veteran was previously represented by the Veterans of Foreign Wars (VFW) (as reflected in a September 2014 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative), in December 2014, he submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, appointment Vietnam Veterans of America (VVA) as his representative. This change in representation was reiterated in a January 2015 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative and VVA submitted written argument in support of the Veteran's appeal in February 2015. The Board notes that, in addition to the paper claims file, there are two separate paperless, electronic files associated with the Veteran's claims: a Virtual VA file and a Veterans Benefits Management System (VBMS) file. A review of the documents in Virtual VA reveals VA treatment records dated from December 2009 to January 2013, which were considered by the agency of original jurisdiction (AOJ) in the April 2013 SSOC. A review of the documents in VBMS reveals a September 2014 claim for service connection for various disorders, including service connection for depression, IBS, and plantar fasciitis; a September 2014 VA Form 21-22 appointing VFW as the Veteran's representative; the November 2014 Joint Motion and an unopposed Motion to Clarify November 2014 Court Order; a December 2014 VA Form 21-22 appointing VVA as the Veteran's representative; the January 2015 rating decision denying claims for service connection for depression and IBS; the January 2015 claims for additional disabilities; and a January 2015 NOD regarding IBS and depression. The remainder of the documents in both Virtual VA and VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the matters on appeal. The claims for service connection for bilateral hearing loss, tinnitus, blood clots of the right leg, migraines, hemoptysis (claimed as blood in the sputum), and chondroma of the left ring finger (claimed as tumor on the bone), along with the claims for service connection for IBS and depression-for which the Veteran has completed the first of two actions required to place these matters in appellate status-are being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in September 2014 correspondence, the Veteran requested service connection for plantar fasciitis. Subsequently, in January 2015 correspondence the Veteran requested service connection for various disabilities including sleep apnea and depression (secondary to posttraumatic stress disorder (PTSD)) as well as IBS, chronic fatigue, chronic joint/muscle pain, cardiovascular disease, and chronic headaches (secondary to Gulf War Syndrome). Notably, the claims for headaches, IBS and depression are being remanded below. However, with regard to the remaining claims, it does not appear that they have yet been addressed by the AOJ. Furthermore, while the Veteran appears to link some of these alleged disabilities to service-connected disability, the Board notes that the Veteran is not currently service connected for either PTSD or Gulf War Syndrome. As such, these matters are not properly before the Board, and thus, are referred to the AOJ for appropriate action. REMAND Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision. In the November 2014 Joint Motion, the parties noted that the Board relied on inadequate medical opinions in deciding the claims above. Specifically, with regard to the Veteran's claims for hearing loss and tinnitus, the parties to the Joint Motion noted that the Board incorrectly relied on a February 2013 medical opinion in denying the claims. Pertinent background leading to the February 2013 opinion shows that the same examiner first provided an August 2011 examination report which, in June 2012, was determined by the RO to contain contradicting opinions. As a result, the RO requested the examiner to clarify his "differing medical opinions." Thereafter, a June 2012 addendum opinion was provided by the VA examiner. In this report, the examiner clarified that it was his belief that the claimed conditions were less likely than not incurred or caused by the in-service noise exposure. He reasoned that the hearing was unchanged at discharge; there were no complaints of hearing loss or tinnitus in service; and a post-service June 2003 audiogram was similar to the induction audiogram. In December 2012, the Board remanded the claims for further clarification. Specifically, the Board explained. [u]pon review of the reasons and bases in the August 2011 examination report, the Board notes that the examiner relied, in part, on a statement in a January 2005 evaluation report that the Veteran was unaware of any hearing loss until 2005. However, the claims file contains a November 1997 VA treatment note reflecting that the Veteran complained of being hard of hearing and reported experiencing decreased hearing for approximately the last three (3) years. As the examiner did not address this evidence, the Board cannot determine whether or not he had knowledge of pertinent case facts. Thus, the Board directed the same examiner to "review the claims file, with particular attention to the November 1997 treatment note reflecting the Veteran's complaint of progressively decreased hearing over the last three (3) years, and state whether or not that evidence alters his August 2011/June 2012 opinions in any way." When the examiner provided his February 2013 addendum opinion, he again reasoned that the audiology disorders were not related to service and again stated his opinion was based, in part, on the Veteran's 2002 and 2003 audiograms showing no abnormalities, and that the Veteran had normal hearing for the 12 year period following separation from service. Specifically, the examiner stated: The previous C&P re[p]ort of 2009 was not accurate in assuming the hx of the military experience of veterans environment could at least be responsible in part for the hearing loss. More carefull [sic] consideration of the facts, the post service noise exposure, the reported normal hearing for 12 years following discharge and the atypical hearing loss curve, not easily explained as primary acoustic trauma opinion. It is less likely as not the veterans hearing loss nad [sic] tinnitus resulted from injury or disease incurred in or aggravated in service. The inservice noise exposure associated with likely combat service in Southwest Asia was taken into consideration in this determination. Thus, despite the Board's December 2012 directive, a fair and thorough reading of the February 2013 report discloses that the examiner did not consider the November 1997 VA treatment record. Furthermore, the author of the February 2013 report also failed to "state whether or not that evidence alters" his opinion, as requested by the December 2012 Board remand. Given the deficiency noted above, the AOJ should obtain an addendum opinion from the prior examiner. The AOJ should only arrange for further examination of the Veteran is the prior examiner is not available or further examination is deemed necessary. Regarding the claims for service connection for blood clots of the right leg, migraines, hemoptysis (claimed as blood in the sputum), and chondroma of the left ring finger (claimed as tumor on the bone), each to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, in the March 2014 decision, the Board sub judice relied on the September 2009/November 2009 VA examiner who concluded that all of the claimed disabilities appeared to have occurred more than a year after active duty and it was less likely as not that any of these abnormalities resulted from service. The Board also relied on the August 2011 VA examiner who stated that each of the disabilities were not associated with or diagnosed during service. The Board further relied on the opinion of the December 2011 examiner, to include as reflected in a January 2012 addendum, for the proposition that the disorders were due to known clinical diagnoses. However, the parties to the Joint Motion noted that the March 2014 Board decision failed to adequately explain or provide a rationale for relying on examinations that the Board previously found were insufficient and inadequate to decide the claims. To demonstrate this deficiency, in its April 2011 remand, the Board found that while the September 2009/November 2009 examiner "listed diagnoses of the Veteran's medical abnormalities, he did not specifically state whether, or provide any explanation or rationale of how, any of the Veteran's complaints or symptoms were attributable to a known clinical diagnosis that could be medically explained." The examiner's opinions were also rejected as there was "no further comment on any probable etiology of the Veteran's hemoptysis" or "whether such headaches were attributable to a known clinical diagnosis." The Board determined that the record "still does not include adequate medical opinions that fully and clearly address" the Veteran's complaints or symptoms. In the December 2012 remand, the Board found that "the [August 2011] examiner's multiple supplemental opinions are inadequate as they are based on an unspecific, unsupported rationale." The Board explained the examiner's rationale included "incorrectly report[ing] some dates of treatment and onset (which he reported as the bases for his rationale), and may not have performed a 'complete' review of the claims file." In the December 2012 remand, the Board noted that the prior opinions were "devoid of medical explanation" and an addendum opinion was necessary. The remand also noted the examiner did not address specific treatment records, for example, "he reported 2004 as the date of onset of migraines, but did not address February 2003 treatment for headaches." In the December 2012 remand, the Board also noted that a November 1997 note reflects complaints of occasional migraines. As a result, the Board stated that "the RO should return the claims file to the November 2009/August 2011/December 2011/June 2012 examiner for an addendum opinion." In January 2013 and February 2013, the same Gulf War guidelines examiner provided addendum opinions. Significantly, despite the December 2012 remand instruction drawing the examiner's attention to a February 2003 VA treatment note reflecting assessment of chronic headaches and a November 1997 treatment note stating that the Veteran reported first experiencing hemoptysis in 1993, the 2013 examiner still reported, for migraines headaches, "diagnosis of onset was 2004" although he did acknowledge, for hemoptysis, "onset was 1996 or perhaps as early as 1993, there is some discrepancy in the onset, but my records suggest 1996 on review." Further, although the examiner noted the presence of clinical diagnoses for each condition and opined that they were less likely than not related to the Veteran's military service, the opinion lacked rationale as to why the conditions were not related to service. Additionally, the parties to the Joint Motion indicated that the Board erred by not properly applying the provisions of 38 C.F.R. § 3.317 to the Veteran's claim for entitlement to VA benefits for blood clots, migraines, hemoptysis, and chondroma. Specifically, the Board acknowledged that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, and thus, is potentially eligible for entitlement to VA benefits due to an undiagnosed illness. See 38 C.F.R. § 3.317(a)(1). In its analysis, the Board determined that all of the Veteran's reported symptoms "are distinct and diagnosable clinical entities, and thus any grant of service connection under the provisions of 38 U.S.C.A. § 1117 is precluded." Pertinent statutes and regulations provide for entitlement to compensation on a presumptive basis to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that manifests "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 ten percent or more before December 31, 2016, and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i),(ii). A "qualifying chronic disability" may be one that results from "[a]n undiagnosed illness" or a "[a] medically unexplained chronic multisymptom illness." 38 U.S.C. § 1117(a)(2)(A), (B); see 38 C.F.R. § 3.317 (a)(2)(i). Under 38 C.F.R. § 3.317(a)(2)(i)(B), if a Veteran has an illness other than chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome, it is solely a medical determination as to whether that illness qualifies under § 3.317(a)(2)(i)(B) as a "medically unexplained chronic multisymptom illness." 75 Fed.Reg. 61,995-01, 61,995-96 (Oct. 7, 2010) (final rule). Indeed, for purposes of this section "the term medically unexplained chronic multisymptom illness 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." 38 C.F.R. § 3.317 (a)(2)(ii). The parties noted that the March 2014 denial of entitlement to VA benefits for the claimed disorder(s) under the applicable provisions of law was based on a finding that the evidence showed the Veteran's symptoms were attributable to "known clinical entities." However, the Board did not consider that under 38 C.F.R. § 3.317, compensation may be warranted on a presumptive basis for disabilities due to undiagnosed illness, as well as medically unexplained chronic multisymptom illnesses. See 38 C.F.R. § 3.317(a)(ii)(2)(ii). Given the above, the AOJ should obtain an addendum opinion from the prior examiner. The AOJ should only arrange for further examination of the Veteran if the prior examiner is not available or further examination is deemed medically necessary. Prior to seeking further medical opinion in these claims, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, a review of the claims file reveals that the Veteran consistently sought VA treatment from June 1997 through January 2013; however, the claims file includes no treatment records dated after January 2013. Given the need to remand for other reasons, the AOJ should obtain any outstanding VA treatment records dated since January 2013. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2014). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As a final point, as noted above, by rating decision dated in January 2015, the RO, inter alia, denied service connection for depression and IBS. Later that month, the Veteran filed a statement which can reasonably be construed as expressing disagreement with the denial of these claims. The AOJ has yet to issue a SOC with respect to the Veteran's claim for service connection for depression and IBS, the next step in the appellate process. See 38 C.F.R. § 19.29 (2013); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded to the AOJ for issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.501, 20.502 (2013). On remand, the appellant will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to these matters. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative an SOC on the matters of entitlement to service connection for depression and IBS, and afford him the appropriate opportunity to file a substantive appeal perfecting an appeal on these issues. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the matter of entitlement to service connection for depression and/or IBS, within 60 days of the issuance of the SOC, or the remainder of the one-year period following notification of the denial(s). 2. Obtain all outstanding VA records of evaluation and/or treatment of the Veteran since January 2013. Follow the procedures set forth is 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all pertinent, outstanding private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the ENT physician who examined the Veteran in September 2009 to provide an addendum opinion. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated individual, and the report should include discussion of the Veteran's documented medical history and assertions. The examiner should review the claims file, with particular attention to the November 1997 treatment note reflecting the Veteran's complaint of progressively decreased hearing over the last three (3) years, and state whether or not that evidence alters his previous opinions in any way. If the prior examiner is not available, or another examination is deemed medically necessary, arrange for the Veteran to undergo VA ENT examination, by an appropriate physician, to obtain an opinion, for each hearing loss and tinnitus, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability results from injury or disease incurred or aggravated in service, to specifically include in-service noise exposure associated with likely combat service in Southwest Asia. All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), must be provided. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the physician who examined the Veteran in November 2009 to provide an addendum opinion. The contents of the entire claims file, paper and electronic, to include complete copy of this REMAND, must be made available to the designated individual, and the report should include discussion of the Veteran's documented medical history and assertions. With respect to the Veteran's complaints or symptoms of blood clots of the right leg, migraines, hemoptysis, and chondroma of the left ring finger (claimed as tumor on the bone), for each, the examiner is, again, asked to specifically state whether any such complaint or symptom is attributable to a known clinical diagnosis that can be medically explained. the examiner must again review the entire record. The examiner's attention is drawn to a February 2003 VA treatment note reflecting assessment of chronic headaches and a November 1997 treatment note stating that the Veteran reported first experiencing hemoptysis in 1993. If the Veteran suffers from any claimed symptoms that are not determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings, and should be ordered by the primary examiner. In such instance, the primary examiner should provide the specialist(s) with all examination reports and test results, and request that the specialist determine if the Veteran's claimed symptom can be attributed to a known clinical diagnosis. If the Veteran's symptom is attributable to a known clinical diagnosis, the specialist should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or more probability) that the diagnosed disability was incurred in or aggravated by service. The examiner should also specifically identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such represent manifestations of medically unexplained chronic multisymptom illness. If the prior examiner is not available, or another examination is deemed medically necessary, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain opinions responsive to the questions posed above. All examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 9. Do not return the claims file to the Board until the Veteran perfects an appeal of the claims addressed in paragraph 1, above, or the time period for doing so expires, whichever occurs first. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2014).