Citation Nr: 1631000 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 12-16 614A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disability (claimed as bronchitis with coughing), to include as due to an undiagnosed illness. 2. Entitlement to service connection for disability manifested by fatigue (claimed as chronic fatigue syndrome), to include as due to an undiagnosed illness. 3. Entitlement to service connection for disability manifested by joint pain, muscle pain, and neurological symptoms (claimed as fibromyalgia), to include as due to an undiagnosed illness. 4. Entitlement to service connection for obstructive sleep apnea. 5. Entitlement to ratings in excess of 30 percent (prior to July 21, 2014) and in excess of 70 percent (from July 21, 2014) for posttraumatic stress disorder (PTSD) with alcohol and substance abuse. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1989 to September 1992, with honorable service in Southwest Asia from November 1990 to May 1991. [He also had a period of active service from November 2006 to May 2007, but he received an "uncharacterized" discharge for this period of service.] These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bronchitis with coughing, for chronic fatigue syndrome, for fibromyalgia, for obstructive sleep apnea, and for "undiagnosed illness," and granted service connection for PTSD and assigned a 30 percent rating (effective January 26, 2009). Thereafter, an October 2014 rating decision recharacterized the Veteran's service-connected PTSD as "PTSD with alcohol and substance abuse" and granted an increased rating of 70 percent for that disability (effective July 21, 2014); as that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In the Veteran's June 2012 VA Form 9, he requested a hearing before the Board; however, in a statement received in May 2015, he withdrew such request. The Board has recharacterized the issues as listed on the title page in order to incorporate the "undiagnosed illness" theory of entitlement with regard to the disabilities that have been specifically claimed. The Veteran had also initiated an appeal of the denial of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating). An October 2014 rating decision granted a TDIU rating, effective July 21, 2014. Consequently, that matter is not before the Board. The issue of entitlement to service connection for irritable bowel syndrome (IBS) has been raised by the record (in a March 2011 written statement, located in Virtual VA), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)). The appeal is REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA for the claims on appeal. As an initial matter, the Board notes that the Veteran's service treatment records for his honorable period of active service from September 1989 to September 1992 are not currently of record and must be obtained on remand. Service Connection for a Respiratory Disability (claimed as Bronchitis with Coughing), to include as due to an Undiagnosed Illness The Veteran states that he currently suffers from a respiratory disability as a result of his military service in Southwest Asia. As noted above, the Veteran's service treatment records for his honorable period of active service from September 1989 to September 1992 are not currently of record (and are being requested on remand). The post-service evidence consists of VA treatment records which document his treatment for upper respiratory infection (noted in January 2009) and bronchitis (noted in March 2009), as well as the Veteran's statements noting that he has persistent coughing and respiratory problems. In light of his current respiratory symptoms/diagnoses and his Southwest Asia service, an examination to secure a medical opinion with adequate rationale is necessary with regard to whether the Veteran's current respiratory symptoms may be manifestations of a "qualifying chronic disability" under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a). Service Connection for Disability manifested by Fatigue (claimed as Chronic Fatigue Syndrome), to include as due to an Undiagnosed Illness The Veteran states that he currently suffers from disability manifested by fatigue as a result of his military service in Southwest Asia. As noted above, the Veteran's service treatment records for his honorable period of active service from September 1989 to September 1992 are not currently of record (and are being requested on remand). The post-service evidence consists of the Veteran's statements noting that he has constant fatigue; the report of an August 2010 VA general medical examination which noted that he had no diagnosis, signs, or symptoms of chronic fatigue syndrome; and a May 2016 informal hearing presentation which noted that the Veteran's constant fatigue began shortly after his active service and continued to persist presently. In light of his current fatigue symptoms and his Southwest Asia service, an examination to secure a medical opinion with adequate rationale is necessary with regard to whether the Veteran's current fatigue symptoms may be manifestations of a "qualifying chronic disability" under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a). Service Connection for Disability manifested by Joint Pain, Muscle Pain, and Neurological Symptoms (claimed as Fibromyalgia), to include as due to an Undiagnosed Illness The Veteran states that he currently suffers from disability manifested by joint pain, muscle pain, and neurological symptoms as a result of his military service in Southwest Asia. As noted above, the Veteran's service treatment records for his honorable period of active service from September 1989 to September 1992 are not currently of record (and are being requested on remand). The post-service evidence consists of VA treatment records which document his treatment for bilateral knee pain and joint inflammation (noted in March 2009); the Veteran's statements noting that he has persistent headaches, muscle pain, joint pain, and tingling and numbness in his extremities; the report of an August 2010 VA general medical examination which noted that he had no diagnosis, signs, or symptoms of fibromyalgia; private treatment records which document a diagnosis of carpal tunnel syndrome in both hands (noted in August 2014); and a May 2016 informal hearing presentation which noted that the Veteran's pain, tingling, and numbness in all of his extremities began shortly after his active service and continued to persist presently. In light of his current joint pain, muscle pain, and neurological symptoms and his Southwest Asia service, an examination to secure a medical opinion with adequate rationale is necessary with regard to whether the Veteran's current joint pain, muscle pain, and/or neurological symptoms may be manifestations of a "qualifying chronic disability" under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a). Service Connection for Obstructive Sleep Apnea The Veteran states that his current obstructive sleep apnea began during his active military service and has persisted since service. As noted above, the Veteran's service treatment records for his honorable period of active service from September 1989 to September 1992 are not currently of record (and are being requested on remand). On January 2005 examination during his Reserve service, it was noted noting that he had very large tonsils for his age. Post-service VA treatment records document his treatment for obstructive sleep apnea, which was first diagnosed during a VA sleep study in March 2009. On August 2010 VA general medical examination, the Veteran reported that he had always snored, but that such had worsened approximately one year before. It was noted that he had very enlarged tonsils (which remained enlarged despite treatment with antibiotics) and that his sleep study was positive "for sleep apnea, new onset well after leaving military, NOT service connected[,] same with enlarged tonsils." The VA examiner further noted that the Veteran's new onset sleep apnea and insomnia were "apparently secondary to upper airway obstruction (tonsils) which was diagnosed well after discharge from the military." In his November 2010 notice of disagreement, the Veteran stated that he had been diagnosed with sleep apnea in 2009 but that he had had it since his active military service, noting that he just did not know what it was then. As the August 2010 VA examiner did not consider the Veteran's statements regarding continuity of sleep apnea symptoms ever since his active service, a new examination to secure a medical opinion with adequate rationale is necessary with regard to this question. Ratings for PTSD with Alcohol and Substance Abuse The Veteran's service-connected PTSD with alcohol and substance abuse has been rated as 30 percent disabling prior to July 21, 2014 and as 70 percent disabling from July 21, 2014. The evidence of record reflects that the Veteran has been hospitalized at several VA facilities for psychiatric symptoms during the period of appeal, most recently from March 16, 2015 to April 22, 2015. On remand, all available and updated VA treatment records must be secured. Inextricably intertwined with this claim is the matter of whether a temporary total rating under 38 C.F.R. § 4.29 is warranted for any period of hospitalization in excess of 21 days for the Veteran's PTSD with alcohol and substance abuse during the period of time under consideration. An award of a temporary total rating for any period of time would render moot the question of entitlement to an increased rating for such period of time. [While a February 2012 rating decision denied a temporary total rating under 38 C.F.R. § 4.29 for a period of hospitalization from November 15, 2010 to December 10, 2010 because this hospitalization in excess of 21 days was for alcohol and cocaine dependency (and not for PTSD), the Board notes that this rating decision was promulgated prior to the AOJ recharacterizing the Veteran's service-connected PTSD as "PTSD with alcohol and substance abuse" (in an October 2014 rating decision).] Accordingly, the case is REMANDED for the following actions: 1. The AOJ should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) evaluations or treatment he has received for his claimed disabilities (i.e., a respiratory disability; disability manifested by fatigue; disability manifested by joint pain, muscle pain, and neurological symptoms; obstructive sleep apnea; and PTSD with alcohol and substance abuse), and to provide all releases necessary for VA to obtain any private records of such evaluations or treatment. The AOJ should obtain for the record complete records of all such evaluations and treatment from all providers identified. If any records requested are unavailable, the reason must be explained for the record. [If the Veteran does not provide the requested releases so that VA may obtain the records, the AOJ must request that the Veteran obtain such records himself and provide them to VA.] The AOJ should also specifically secure for the record the complete clinical records of all updated (to the present) VA evaluations and treatment the Veteran has received for the aforementioned disabilities, to include his hospitalization for psychiatric symptoms from March 16, 2015 to April 22, 2015. 2. The AOJ should arrange for a Gulf War illness examination (and/or any specific body system examination(s) deemed necessary) of the Veteran to ascertain the likely cause of any respiratory disability, disability manifested by fatigue, and disability manifested by joint pain, muscle pain, and neurological symptoms. The Veteran's entire record must be reviewed by the examiner(s) in conjunction with the examination(s). Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner(s) must provide opinions that respond to the following: (a) Please identify (by diagnosis) each disability entity (i.e., respiratory disability, disability manifested by fatigue, and/or disability manifested by joint pain, muscle pain, and neurological symptoms) found or shown by the record. If none is diagnosed, please reconcile that conclusion with the pertinent medical evidence in the record, cited above. (b) Please identify the likely cause for each diagnosed respiratory disability, disability manifested by fatigue, and/or disability manifested by joint pain, muscle pain, and neurological symptoms. Specifically, is it at least as likely as not (a 50% or better probability) that any identified disability was incurred in, related to, or caused by any incident of the Veteran's military service? (c) For any respiratory disability, disability manifested by fatigue, and/or disability manifested by joint pain, muscle pain, and neurological symptoms, if the answer to (b) is NO, then please determine whether it is at least as likely as not (a 50% or better probability) that examination findings or other evidence demonstrate that the Veteran's respiratory, fatigue, joint pain, muscle pain, and/or neurological symptoms are: (i) An undiagnosed illness (signs or symptoms cannot be attributed to known medical diagnoses); or (ii) A medically unexplained chronic multisymptom illness. The examiner(s) is/are advised of the distinction between a "medically unexplained chronic multisymptom illness" (which is defined as "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," such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) and a "chronic multisymptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis." In other words, if any diagnosis is partially understood in terms of etiology or pathophysiology, it is not a "diagnosable but medically unexplained chronic multisymptom illness of unknown etiology." The examiner(s) must explain the rationale and reasoning for all opinions and conclusions provided, citing to relevant evidence, supporting factual data, medical literature, and prior medical opinions, as appropriate. 3. The AOJ should arrange for a sleep apnea examination of the Veteran to ascertain the likely cause of his obstructive sleep apnea. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide an opinion that respond to the following: Please identify the likely cause for the Veteran's obstructive sleep apnea. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by any incident of his military service? The examiner should specifically consider and address the Veteran's statements regarding continuity of sleep apnea symptoms ever since his active service. The examiner(s) must explain the rationale and reasoning for all opinions and conclusions provided, citing to relevant evidence, supporting factual data, medical literature, and prior medical opinions, as appropriate. 4. The AOJ should then review the record, ensure that all development sought is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims remaining on appeal for service connection for a respiratory disability (claimed as bronchitis with coughing), to include as due to an undiagnosed illness; service connection for disability manifested by fatigue (claimed as chronic fatigue syndrome), to include as due to an undiagnosed illness; service connection for disability manifested by joint pain, muscle pain, and neurological symptoms (claimed as fibromyalgia), to include as due to an undiagnosed illness; service connection for obstructive sleep apnea; and ratings in excess of 30 percent (prior to July 21, 2014) and in excess of 70 percent (from July 21, 2014) for posttraumatic stress disorder (PTSD) with alcohol and substance abuse (to include consideration of whether a temporary total rating under 38 C.F.R. § 4.29 is warranted at any period of time during the period under consideration regarding the rating for the service-connected PTSD with alcohol and substance abuse). If any claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ VICTORIA MOSHIASHWILI 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).