Citation Nr: 1753517 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-16 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 2. Entitlement to service connection for headaches, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for irritable bowel syndrome (IBS), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a disability manifested by joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for fibromyalgia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for a disability manifested by muscle cramps, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to service connection for a skin disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 8. Entitlement to service connection for a disability manifested my memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 9. Entitlement to service connection for a bilateral hand disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 10. Entitlement to service connection for a cervical spine disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 11. Entitlement to service connection for an undiagnosed illness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 12. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: David Huffman, Attorney ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to July 1985 and from February 1991 to October 1991. He also appears to have additional periods of active duty service, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and March 2014 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Huntington, West Virginia, that denied the above claims. When the case was previously before the Board in June 2017 it was remanded for additional development. As noted in the June 2017 remand, although the Veteran requested a Board hearing in March 2013 and October 2014 VA Forms 9, in February 2017 he withdrew his hearing request. As such, the hearing request is considered withdrawn. The issue of entitlement to service connection for headaches is reopened. The claim for service connection for headaches on the merits, as well as all other claims on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed January 2010 Board decision denied service connection for headaches. 2. Some of the evidence received since the January 2010 Board decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for headaches. 3. The Veteran had service in Southwest Asia. 4. The evidence is in equipoise as to whether the Veteran has carried a diagnosis of fibromyalgia to a degree of 10 percent or more for at least 6 months during the appeal period. CONCLUSIONS OF LAW 1. The January 2010 Board decision, which denied the claim for service connection for headaches, is final. 38 C.F.R. §§ 20.1100 (2009). 2. Some of the evidence received since the January 2010 denial is new and material and the claim of entitlement to service connection for headaches is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. In giving the Veteran the benefit of the doubt, the criteria for service connection for fibromyalgia are met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Analysis New and Material Evidence The Veteran contends that he is entitled to service connection headaches. For the reasons that follow, the Board finds that new and material evidence has been received to reopen the Veteran's claim. The Board notes that in January 2010 the Board denied service connection for headaches, to include as due to anthrax vaccination in service. The Veteran did not seek, and the Chairman did not order, reconsideration, of the Board's January 2010 decision. Additionally, the Board decision was not appealed. As such, it is final. See 38 C.F.R. § 20.1100 (2009). The evidence received since the January 2010 Board decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156 (2017). In this regard, the Veteran claims that his headaches are secondary to his service-connected PTSD. This new evidence addresses a new theory of entitlement to service connection which was not present at the time of the last final prior denial. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App at 118 (2010). Accordingly, the claim is reopened and will be considered on the merits. Service Connection for Fibromyalgia The Veteran claims that he is entitled to service connection for fibromyalgia as a result of his service in Southwest Asia. A review of the record reflects that the Veteran served in Southwest Asia. As such, he has the requisite service to qualify him for service connection pursuant to 38 C.F.R. § 3.317. An April 2011 VA examination report reflects that physical examination was not congruent with a diagnosis of fibromyalgia. Based upon the negative finding, an opinion could not be rendered. However, VA treatment records from December 2009, December 2010, and May 2014 reflect that the Veteran has a diagnosis of fibromyalgia. A January 2010 private treatment record from Medpointe also notes a diagnosis of fibromyalgia. The Board acknowledges the negative VA examination findings of record. However, fibromyalgia is on the list of medically unexplained chronic multisymptom illnesses subject to presumptive service connection and nexus evidence is not required. 38 C.F.R. § 3.317. The Board finds that the evidence is in equipoise as to whether the Veteran has had fibromyalgia during the appeal which is symptomatic to a degree of at least 10 percent or more for over six months not later than December 31, 2016. Therefore, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for fibromyalgia is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the issue of entitlement to service connection for headaches is reopened; the appeal is granted to this extent. Entitlement to service connection for fibromyalgia is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's service records reflect that between his two periods of known active duty service he had periods of ACDUTRA and INACDUTRA. Additionally, there are service treatment records dating in 2004 and 2005, which reflect complaints of headaches and joint pain/arthralgias, as well as a notation in a March 2008 VA PTSD examination that the Veteran served on active duty from February 1991 through July 2007, including two years of service in Somalia (from 1994 to 1996). There are some service personnel records in the claims file, but they are incomplete. Moreover, there is no record of dates of these additional periods of service, or whether they include active duty service, INACDUTRA or ACDUTRA. As such, the case must be remanded in order to obtain the Veteran's complete service personnel records, as well as his complete dates of service and type of service for all service other than the known active duty service from November 1978 to July 1985 and from February 1991 to October 1991. With respect to the Veteran's claim of entitlement to service connection for headaches, the Veteran contends that they have been present since service. He also claims that they are due to or aggravated by his PTSD. In support of his claim he submitted an internet medical article regarding the connection between PTSD and migraine headaches. A review of the record reflects complaints of headaches in the service treatment records. A November 2005 service treatment record reflects that the Veteran had a six year history of migraine headaches. Additionally, a June 2009 VA examination report contains a diagnosis of migraine headaches and an opinion that the headaches are not related to the Veteran's anthrax vaccination in service. An April 2011 VA examination report reflects a diagnosis of migraine headaches. The examiner essentially opined that the headaches have a specific diagnosis and they are not part of a multisymptom illness related to service in Southwest Asia. An April 2014 post-service VA treatment record reflects that the Veteran has had daily headaches for 10 years. As there is no medical opinion regarding whether the Veteran's headaches are secondary to his PTSD, a remand is required. With respect to the remaining service connection claims, the April 2011 VA examination report reflects diagnoses of generalized arthralgias of the feet, knees, hips, and wrist, degenerative arthritis of the cervical spine, and mild degenerative arthritis of bilateral acromioclavicular joints. It was noted that no skin condition, peripheral nerve condition, muscle cramping condition, or memory impairment was found. The examination report reflects the Veteran's complaints of a skin condition he described as a burning sensation to the lower extremities which began in 2002. He did not report any rashes, macules or papules. He also reported generalized muscle cramping. The examiner opined that the Veteran does not have any undiagnosed illness, any unexplained condition, or any chronic multi-symptom illness. The examiner opined that the Veteran's "conditions have clear specific diagnosis." A review of the post-service medical evidence reflects ongoing complaints of burning skin sensation in 2007. A June 2013 VA treatment record reflects diagnoses of memory loss, paresthesias of "burning skin," and joint pain. A September 2013 VA treatment record reflects complaints of muscle cramps and memory problems. An April 2014 VA treatment record notes that the Veteran's has constipation, which is likely from his use of hydrocodone (which he takes for his migraine headaches). A May 2014 VA treatment record reflects diagnoses of diverticulosis, shoulder joint pain, idiopathic peripheral neuropathy not otherwise specified, dysphagia, and rectal/anal hemorrhage. A March 2014 VA examination report reflects a diagnosis of diverticulosis. The examiner noted that that there was no evidence of bowel dysfunction in service, the Veteran's primary care physician has never noted any bowel dysfunction, and there is no indication of the Veteran having irritable bowel syndrome. The examiner opined that the Veteran's complaints of constipation are subjective findings only, as the clinical evaluation and radiographic findings are negative. A July 2017 VA treatment record notes that the Veteran was admitted to the hospital regarding his diverticulosis. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the April 2011 VA examiner did not provide any rationale for the opinion that the Veteran does not have any undiagnosed illness apart from the statement that there is a known diagnosis. Despite the skin complaints, muscle cramp complaints, memory loss complaints, joint pain complaints, diverticulosis/rectal hemorrhage, hand/wrist complaints, there are no known diagnoses. As such, a remand is required. The record reflects that the Veteran receives medical treatment through VA. The most recent VA treatment records in the claims file are dated in May 2014. As such, up-to-date VA treatment records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). With respect to the claim of entitlement to a TDIU, the Board notes that there is no VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, of record. As such, the AOJ should provide the Veteran with a VA Form 21-8940, and request that he complete it and submit it. The Board notes that the Veteran has not met the schedular criteria for an assignment of TDIU during the appeal period. However, the Board also points out that it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). Significantly, however, the Board has no power to award a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling, 15 Vet. App. at 10. In this case, the Veteran's May 2013 informal claim indicates that the disabilities for which service connection has been claimed render him unemployable. As those claims are being remanded, the Board finds that the issue of entitlement to TDIU should be deferred pending the development requested on remand of the other issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Request from NPRC and any other appropriate source(s) a copy of the Veteran's complete service personnel records, and any other records necessary to verify all dates of active duty service, ACDUTRA, and INACDUTRA. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. Thereafter, prepare a report for the record specifying verified periods of active duty service, ACDUTRA and INACDUTRA. 2. Obtain copies of the Veteran's VA treatment records dating from May 2014 to the present, and associate the records with the claims file. 3. Schedule the Veteran for a VA Gulf War/undiagnosed illness examination, with an appropriate examiner. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to state whether the Veteran's diverticulosis/rectal hemorrhage, joint pain, muscle cramps, degenerative arthritis of the cervical spine, skin complaints/burning sensation, memory loss, and hand/wrist complaints are attributable to a known clinical diagnosis or to a disease process other than a known clinical diagnosis. If the examiner cannot identify a known disease or disability which causes these symptoms, the examiner should so state. The examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more). The examiner should also indicate whether the Veteran's symptoms and complaints represent a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms. If the Veteran's complaints are attributable to a known clinical diagnosis, the examiner should render an opinion as to whether each diagnosed disability is at least as likely as not (e.g., a 50 percent or greater probability) etiologically related to active military service including environmental exposures during active service in Southwest Asia and/or the reports of joint pain therein. The examiner is also advised that the Veteran is competent to report ongoing symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his currently diagnosed headaches. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed headaches had their onset during active service, are etiologically related to service (to include environmental exposures during active service in Southwest Asia and/or complaints of headaches in service), or are caused or aggravated by his service-connected PTSD. The examiner must take into account the Veteran's report of ongoing headaches since 1999. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 5. Confirm that the VA examination reports and any medical opinions provided comport with this remand and undertake any other development found to be warranted. 6. Readjudicate the Veteran's claims in light of all of the evidence of record. In adjudicating the TDIU claim, if the AOJ finds that the Veteran is unemployable, but that his combined evaluation does not meet the criteria of 38 C.F.R. § 4.16 (a) for any period under consideration, refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extraschedular evaluation for that period. If any benefit sought is not granted, the Veteran and representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs