Citation Nr: 1801184 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-06 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a disability manifested by chronic fatigue and migratory joint pain, claimed as an undiagnosed Gulf War illness and chronic fatigue syndrome (CFS). 2. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for diabetes mellitus, type II, also claimed as hypertriglyceridemia, hyperlipidemia, and hypoglycemia. 3. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to a service connected disability. REPRESENTATION Appellant represented by: Gina D. Holness, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to August 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. The Board also notes the Veteran was scheduled for a Board hearing at the San Diego RO on June 29, 2017. He failed to report for the scheduled hearing without explanation, and has not requested a new hearing. Though the letter notifying the Veteran's representative of the hearing was returned as undeliverable, neither the Veteran nor his representative have advised VA of a change in the representative's address. In this respect, VA's duty to assist a veteran in developing the facts and evidence pertinent to his or her claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's hearing request is, therefore, deemed withdrawn. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. The issues of entitlement to service connection for diabetes mellitus, sleep apnea, and an undiagnosed Gulf War illness/chronic fatigue syndrome are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. A June 2001 rating decision denied the claim of entitlement to service connection for an undiagnosed Gulf War illness, also claimed as chronic fatigue syndrome; a March 2008 rating decision denied the claims of entitlement to service connection for sleep apnea, hypertriglyceridemia, hyperlipidemia, and hypoglycemia; the Veteran did not appeal those denials, and thus, those decisions are considered final. 2. Evidence received subsequent to the June 2001 and March 2008 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for an undiagnosed Gulf War illness, also claimed as chronic fatigue syndrome, sleep apnea, hypertriglyceridemia, hyperlipidemia, and hypoglycemia. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a disability manifested by chronic fatigue and joint pain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for hypertriglyceridemia, hyperlipidemia, and hypoglycemia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been presented to reopen the claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO initially denied service connection for entitlement to service connection for an undiagnosed Gulf War illness, also claimed as chronic fatigue syndrome in a June 2001 rating decision. At that time, the RO determined the Veteran's STRs failed to show a disability was incurred in service. The RO also found the Veteran did not have an undiagnosed illness or chronic fatigue syndrome. With respect to the Veteran's claims for hypertriglyceridemia, hyperlipidemia, hypoglycemia, and sleep apnea, the RO initially denied service connection for these claims in a March 2008 rating decision. At that time, the RO determined the evidence failed to show a current disability with respect to the claims for hypertriglyceridemia, hyperlipidemia, and hypoglycemia. The RO explained that these were merely considered lab values, not disabilities. In addition, the RO determined the Veteran's sleep apnea did not warrant service connection, because the evidence did not indicate the condition was incurred in service, and there was no competent evidence indicating the condition was the result of a service connected disability. Thereafter, in June 2010, the Veteran initiated a claim to reopen his previously denied claims. The evidence of record in June 2001 and March 2008 consisted of the Veteran's statements and service treatment records (STRs), as well as outpatient treatment records from the San Diego, Gainesville, and Dallas VAMCs. The evidence received after the expiration of the appeal period includes additional statements from the Veteran, as well as additional outpatient treatment records from the Boston, Canandaigua, West Palm Beach, Dallas, and San Diego VAMCs. The Veteran has also provided statements from private clinical care providers, which intimate his currently diagnosed diabetes mellitus may be the result of elevated hypertriglyceridemia, hyperlipidemia, and hypoglycemia. His physician, Dr. H.S. indicated the Veteran's diabetes may have been a metabolic syndrome while he was on active, as she found insulin resistance may take 10 years or more to develop into a diagnosis of diabetes. The Veteran also provided a statement from his treating clinician at the Medical Clinic of North Texas, who indicated the Veteran had been treated for both Gulf War Syndrome/Chronic Fatigue and sleep apnea. In addition, the clinician found the Veteran's time in the military either caused or at least significantly contributed to several of his health problems. Further, the Veteran has provided additional records and statements indicating his sleep apnea may be consequentially related to his service-connected heart disability, as a result of deconditioned physical health caused by his heart disability. These records, when taken in the light most favorable to the Veteran, provide probative evidence tending to support his claims. As such, the Board finds this evidence to be new and material. Accordingly, reopening of the claims for service connection for an undiagnosed Gulf War illness, also claimed as chronic fatigue syndrome, hypertriglyceridemia, hyperlipidemia, hypoglycemia, and sleep apnea is warranted. ORDER New and material evidence having been presented, reopening of the claim for service connection for a disability manifested by chronic fatigue and joint pain is granted. New and material evidence having been presented, reopening of the claim for service connection for diabetes mellitus, type II, previously claimed as hypertriglyceridemia, hyperlipidemia, and hypoglycemia is granted. New and material evidence having been presented, reopening of the claim for service connection for obstructive sleep apnea is granted. REMAND The Board is of the opinion that additional development is required before the Veteran's remaining appellate issues are decided. Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran asserts his current diabetes mellitus is consequentially related to the hypertriglyceridemia, hyperlipidemia, and hypoglycemia he experienced in service. He underwent a VA examination in May 2012. Though the examiner diagnosed the Veteran with type II diabetes, he nonetheless found this condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of his conclusion, the examiner indicated the Veteran was first diagnosed with diabetes in 2007. The examiner then acknowledged the Veteran's metabolic impairment is a risk factor for the development of diabetes; however, the examiner stated a risk factor is a characteristic statistically associated with a disease, but not necessarily causally related. The examiner then indicated the Veteran had other risk factors, but failed to state what those risk factors were. In sum, the examiner merely stated a hodge pot of facts, but provided no explanation as to how or why he found the Veteran's metabolic syndrome shown in service could not have represented the initial onset of his diabetes mellitus. As such, the Board finds an addendum medical opinion must be obtained. The Veteran also underwent VA Gulf War Protocol and Chronic Fatigue Syndrome examinations in May 2012. Following these examinations, the examiner stated the Veteran had neither an undiagnosed illness, nor chronic fatigue syndrome. Rather, the examiner found the Veteran did have physical manifestations of migratory joint pain and fatigue/low energy. However, the examiner indicated the Veteran's fatigue could be attributable to multiple other etiologies, several of which were notably service-connected disabilities. The examiner failed to discuss the Veteran's migratory joint pain. In addition, the Board notes the Veteran's private physician, in a December 2010 letter, stated the Veteran had been diagnosed with "Gulf War Syndrome/Chronic Fatigue." However, the May 2012 VA examiner also failed to acknowledge or discuss these prior diagnoses. Based on the foregoing insufficiencies, the Board finds a new VA examination and medical opinion is necessary. Finally, the Board notes the RO has not obtained a VA medical opinion addressing his claim for sleep apnea. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. A review of the Veteran's private and outpatient treatment notes indicates he has been diagnosed and treated for obstructive sleep apnea. The Veteran's STRs do not indicate he experienced this disability on active duty; however, the Veteran has reported his disability was secondary to his service connected heart disability. A review of the Veteran's private treatment records from Heart Place indicates the Veteran was experiencing difficulty with exercise, because he would become short of breath, lightheaded and shaky as a result of his heart condition. His treating physician also stated the Veteran's weight gain had adverse long-term health effects on his sleep apnea. Based on the foregoing, the Board finds an examination and medical opinion is necessary to determine whether the Veteran's service-connected heart disability caused or aggravated his obstructive sleep apnea. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to specifically include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, obtain an addendum medical opinion from the VA physician that conducted the May 2012 diabetes examination, if available, and if unavailable from an examiner with sufficient expertise to address the etiology of the Veteran's diabetes mellitus. A new examination should only be conducted if deemed necessary by the physician providing the medical opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. In this regard, the physician must state whether any degree of the Veteran's diabetes mellitus, type II at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include as a result of his metabolic syndrome (hypertriglyceridemia, hyperlipidemia, and hypoglycemia) first noted on active duty. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. Also, afford the Veteran a VA examination by an examiner or examiners with sufficient expertise to address the etiology of the Veteran's claimed undiagnosed Gulf War illness/chronic fatigue syndrome and obstructive sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether a disability has been present during the pendency of this appeal, which would account for the Veteran's chronic fatigue and migratory joint pain, to specifically include the December 2010 diagnosis from the Veteran's private physician of "Gulf War Syndrome/Chronic Fatigue." With respect to all diagnosed fatigue and joint pain disabilities present during the pendency of this appeal, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: a) originated during his period of active service or is otherwise etiologically related to his active service, to include as a result of his service in the Persian Gulf;; b) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability results from a clear and distinct etiology, partially known etiology, or an unknown etiology; c) was caused by a service-connected disability; or d) was permanently worsened by his service-connected disability. Additionally, the examiner should state whether the Veteran's obstructive sleep apnea at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected heart disability (cardiomyopathy, arrhythmia and hypertension); or c) was permanently worsened by his service-connected heart disability (cardiomyopathy, arrhythmia and hypertension); The examiner must consider and discuss the June 2007 statement from the Veteran's treating cardiac physician at Heart Place. Specifically, the examiner should discuss the physician's statement as it relates to the Veteran's difficulty with exercise as a result of his heart condition, and how his deconditioning may have impacted upon the Veteran's sleep apnea. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran's competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Finally, undertake any other indicated development, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs