Citation Nr: 1801555 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for PTSD. 2. Entitlement to service connection for a psychiatric disability, to include PTSD, anxiety disorder, and adjustment disorder. 3. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for memory loss as due to Gulf War service. 4. Entitlement to service connection for memory loss, to include as secondary to a psychiatric disorder. 5. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a back disability. 6. Entitlement to service connection for a back disability, to include arthritis. 7. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for migraines. 8. Entitlement to service connection for a headache disability, to include migraines. 9. Entitlement to service connection for chronic fatigue syndrome (claimed as fatigue), to include as due to a chronic undiagnosed illness, and to include as secondary to a psychiatric disability. REPRESENTATION Veteran represented by: Deanne L. Bonner, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1970 to December 1971, and from December 1990 to May 1991. He had additional service in the Reserve. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, to include a transcript of the February 2017 Board hearing presided over by the undersigned Veterans Law Judge. The Veteran and the above-mentioned attorney are hereby notified that the above-mentioned attorney will not be the Veteran's authorized representative of record upon transfer of this case to the Agency of Original Jurisdiction (AOJ). Here, the Veteran executed a Form 21-22a in 2014 appointing the above-mentioned attorney as his authorized attorney, and the attorney limited her representation to the issues on appeal. Also, the attorney assisted the Veteran at his February 2017 Board hearing regarding these claims on appeal. The Veteran's appeal was certified and transferred to the Board in 2015. Then, in March 2017, the Veteran executed a VA Form 21-22 appointing the North Carolina Division of Veterans Affairs as his representative, and this appointment had no limitations in representation. Pursuant to 38 C.F.R. § 20.1304(b)(2017), any request for a change of representation after 90-days from the date of certification of his appeal to the Board should be submitted to the Board with a good cause explanation. The Board may not accept this change of representation at this time because there was no good cause explanation for the change in representation as to the claims on appeal. However, as a matter of law, the new appointment of the North Carolina Division of Veterans Affairs will be recognized upon transfer of the case to the AOJ. The entitlement to service connection issues listed above are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an April 2005 rating decision, the RO denied the claims for service connection for PTSD, based on the determination that there is no medical evidence of PTSD; for memory loss as due to Gulf War service, based on the determination that there is no medical evidence of memory loss or a chronic undiagnosed illness; for a back disability, based on the determination that there is no medical evidence of a back disability; and, for migraines, based on the determination that headaches were not caused or aggravated by a period of active service. 2. In an October 2006 rating decision, the RO declined to reopen the previously denied claim for service connection for memory loss as due to Gulf War service, based on the determination that no evidence that was new and material to the claim for service connection for memory loss had been submitted. 3. In a February 2010 rating decision, the RO declined to reopen the previously denied claim for service connection for PTSD, based on the determination that no evidence that was new and material to the claim for service connection for PTSD had been submitted. 4. The Veteran did not submit a notice of disagreement against the April 2005 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claims for service connection for a back disability or for migraines. 5. The Veteran did not submit a notice of disagreement against the October 2006 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for memory loss. 6. The Veteran did not submit a notice of disagreement against the February 2010 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for PTSD. 3. Respective to each previously denied claim, assuming its credibility for the purposes of reopening, the additional evidence received since the April 2005, October 2006, and February 2010 rating decisions was not previously considered in such decisions and raises a reasonable possibility of substantiating the claims for service connection for PTSD, memory loss, a back disability, and migraines. CONCLUSIONS OF LAW 1. The April 2005 rating decision, which denied the claim for service connection for a back disability and for migraines, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. The October 2006 rating decision, which declined to reopen the previously denied claim for service connection for memory loss, is final. 38 U.S.C.A. § 7105(c) (West 2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 3. The February 2010 rating decision, which declined to reopen the previously denied claim for service connection for PTSD, is final. 38 U.S.C.A. § 7105(c) (West 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. Respective to each previously denied claim, the additional evidence received since the April 2005, October 2006, and February 2010 rating decisions is new and material to the claims for service connection for PTSD, memory loss, a back disability, and migraines, and these claims are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Board is reopening the previously denied claims for service connection that are on appeal, discussion concerning compliance with the duties to notify and assist is not necessary with regard to these claims to reopen. Applications to Reopen Generally, an unappealed decision of the RO is final U.S.C.. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. An exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). As noted in the Findings of Fact above, the Veteran's claim for service connection for a back disability and migraines was denied in an April 2005 rating decision. The additional evidence received since the April 2005 rating decision includes the Veteran's Board hearing testimony that his back disability is related to an injury that happened during a period of active duty for training (ACDUTRA) when serving in the Reserve. Evidence that tends to indicate that a back disability is related to an injury that may have been incurred during a period of active service is pertinent evidence that was absent at the time of the April 2005 decision, and assuming its credibility for the purposes of reopening, this evidence raises a reasonable possibility of substantiating the claim for service connection for a back disability. Also, the additional evidence received since the April 2005 rating decision includes the Veteran's Board hearing testimony that he had headaches that began during his first period of active duty, and that such headaches continued since onset in active duty. He also testified that he was diagnosed with migraines during a period of ACDUTRA in Arizona. Evidence that tends to indicate that a headache disability began in active service and continued since active service is pertinent evidence that was absent at the time of the April 2005 decision, and this evidence raises a reasonable possibility of substantiating the claim for service connection for migraines. As noted in the Findings of Fact above, the RO declined to reopen the Veteran's previously denied claim for service connection for memory loss in an October 2006 rating decision. The additional evidence received since the October 2006 rating decision includes the Veteran's Board hearing testimony that his memory loss began after his deployment to the Middle East, and that his memory loss symptoms have continued since that time. Assuming its credibility for the purposes of reopening, this evidence that tends to indicate that the Veteran may have had an organic disease of the nervous system manifested by memory loss symptoms that continued since service is pertinent evidence that was absent at the time of the October 2006 decision, and this evidence raises a reasonable possibility of substantiating the claim for memory loss. As noted in the Findings of Fact above, the RO declined to reopen the Veteran's previously denied claim for service connection for PTSD in an February 2010 rating decision. The additional evidence received since the February 2010 rating decision includes the Veteran's Board hearing testimony that he experience fear of hostile military or terrorist activity when serving in the Persian Gulf - specifically fear of landmines and IEDs when serving as a truck driver during active duty. Evidence that tends to indicate that a psychiatric disability is etiologically related to the in-service stressor of fear of hostile military or terrorist activity is pertinent evidence that was absent at the time of the February 2010 rating decision, and assuming its credibility for the purposes of reopening, this evidence raises a reasonable possibility of substantiating the claim for PTSD. For these reasons, the Board finds that new and material evidence has been submitted, and the claims for service connection for a back disability, migraines, PTSD, and memory loss are reopened. Although the evidence is sufficient to reopen, it is not sufficient to grant the claims, and the claims on the merits are discussed in the Remand below. ORDER As new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for PTSD, this claim is reopened. As new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for memory loss, this claim is reopened. As new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a back disability, this claim is reopened. As new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for migraines, this claim is reopened. REMAND Psychiatric disorder and memory loss The Veteran contends that he has a psychiatric disability, to include PTSD, anxiety, and adjustment disorder, that is related to his service in the Persian Gulf. He also contends that he has memory loss is related to his service in the Persian Gulf. He testified at the Board hearing that he began experiencing psychiatric symptoms and memory loss after his deployment. He testified at the Board hearing that he experienced fear of hostile military or terrorist activity when serving in the Persian Gulf - specifically fear of landmines and IEDs when serving as a truck driver during his second period of active duty. The Veteran also reported that during active duty in the Persian Gulf, his trucking unit would move in after the infantry to retrieve damaged equipment and vehicles, and that he observed that the Iraqis did not bury their dead, so his unit had to get U.S. engineers to dig a hole for all the bodies. The Veteran's circumstances and duties in service during this period of active duty tend to support the Veteran's reports of seeing dead bodies. The Veteran also submitted lay statements, to include from his wife, attesting to the changes in his behavior and with regard to his memory loss symptoms that began since he served on active duty in the Persian Gulf. The medical evidence, to include VA treatment records, show that the Veteran has been diagnosed with anxiety disorder, adjustment disorder. The Veteran also reported that he was diagnosed with PTSD at VA. All outstanding VA treatment records should be obtained. The Veteran should also be afforded a VA examination to determine the nature and etiology of his psychiatric disability and memory loss. Back disability The Veteran contends that he has a back disability, to include arthritis, that is related to service. The Veteran contends, such as in his Board testimony, that he hurt his back during an exercise he performed during a period of ACDUTRA during the period after his first period of active duty and his second period of active duty. He reports that the was unloading heavy equipment and his back was hurting badly. He reported that he left base to seek treatment at Kannapolis, and that the doctor gave him pain pills to treat his back symptoms. He reported that he does not remember what year this occurred. He also submitted a statement from He also reported that while he was still taking pain pills for the back, he again hurt his back in a car accident in 2008, and that the doctors wanted to do surgery. He reported that he received physical therapy and chiropractic treatment for 13 months after this accident. The Board also notes that the Veteran reported in December 2004 that his back disability began in about 1989, and that he received treatment for the back in Saudi Arabia. The Veteran also submitted lay statements, to include from a fellow serviceman, reflecting that he experienced backache during his second period of active duty service. The Veteran should be afforded a VA examination to determine the nature and etiology of his back disability. The record shows that treatment records from Kannaoplis Internal Medicine dating from February 12, 2004 to July 5, 2004 are associated with the claims file. Attempts should be made to obtain any available and relevant treatment records dating before and after these dates. Further, attempts should be made to obtain any outstanding and available treatment records pertaining to the Veteran's 2008 car accident. Headache disability The Veteran contends that he has had headaches, to include migraine headaches since onset during his first period of active duty service, during boot camp. He testified that his headache during this period of active service was so bad that he contemplated suicide. He reported that his headaches continued since then. He reported that he had an MRI sometime between his two periods of active duty, but they did not find anything. He reported that he was first diagnosed with migraines during a period of ACDUTRA in Arizona in the 1980s. Attempts should be made to obtain the Veteran's service treatment records from his Reserve service during the 1980s. Further, the Veteran should be afforded a VA examination to determine the nature and etiology of a headache disorder. Fatigue The Veteran contends that he has fatigue that he believes is related to his service in the Persian Gulf. He testified at the Board hearing that he began noticing fatigue, aches, and pains, and tiredness after he served in the Persian Gulf. The Veteran was afforded a VA examinations in September 2010 and November 2010 in which the VA examiner stated that the Veteran's claimed symptoms are attributable to already diagnosed disorders, to include his diagnosed psychiatric disability, back arthritis, and headaches, and that such disorders can account for his symptoms. This matter is deferred pending adjudication of the other service connection issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that he provide information as to any outstanding non-VA treatment records, pertinent to his psychiatric disability, memory loss, back disability, headache disability, and fatigue. Please take appropriate efforts to obtain any outstanding treatment records treatment records from the following: a. Kannaoplis Internal Medicine dating after February 12, 2004, and dating prior to July 5, 2004. b. All providers, to include any hospital, physical therapy and chiropractic providers who treated the back after the Veteran's 2008 car accident. c. Any other relevant private treatment provider. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. When appropriate, provide the Veteran with notice pursuant to 38 C.F.R. § 3.159(e) with regard to any unavailable records. 2. Please request copies from all appropriate sources of the Veteran's complete service treatment records during his periods of active duty for training during the periods of active duty for training dating in the 1980s. The Veteran's service personnel records have been submitted by his attorney. If any of these treatment records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159(e). 3. Please obtain outstanding relevant VA treatment records, to include updated records. 4. After completing all the above directives 1-3, please obtain a VA examination from a physician to determine the nature and etiology of the Veteran's back disability. Make the claims file available to the examiner for review of the case. The examiner is asked to please opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current back disability (e.g., arthritis) first manifested in service or within the first post-service year, or is etiologically related to a period active service. For purposes of this opinion, the examiner's attention is invited to the following: A. The Veteran's report that he hurt his back loading heavy generators during a period of active duty for training, and that his back continued to hurt thereafter, to include during his period active duty service in the Persian Gulf. For purposes of this opinion only, please assume that this report is credible. B. The Veteran's report that while he was taking pain pills for the back, he again hurt his back in a car accident in 2008, and that he received physical therapy for this. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After completing all the above directives 1-3, please schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of the Veteran's psychiatric disability. Make the claims file available to the examiner for review of the case. The examiner is asked to please provide opinions as to the following: (a) Please comment on the nature and diagnosis(es) of the Veteran's psychiatric disability, to include PTSD, anxiety, adjustment disorder, or any other psychiatric disorder other than PTSD. (b) Please also comment on the nature and diagnosis(es) of the Veteran's memory loss, and as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's memory loss is caused by a psychiatric disorder. (c) Please also comment on the nature and diagnosis(es) of the Veteran's recurrent fatigue, and as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's fatigue is caused by a psychiatric disorder. (d) Please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any of the above disorders is etiologically related to service, to include fear of hostile military or terrorist activity. For purposes of the above opinions, the examiner's attention is invited to the following: (i) The lay statements from the Veteran and his wife, to include the February 2017 Board hearing testimony, reporting memory loss symptoms and chronic fatigue and tiredness since his return from active duty in the Persian Gulf. (ii) The Veteran's reports that he experienced fear of hostile military or terrorist activity when serving in the Persian Gulf - specifically fear of landmines and IEDs when serving as a truck driver during active duty. For purposes of this opinion only, please assume that this report of fear of landmines and IEDs is credible. (iii) The Veteran's reports that during active duty in the Persian Gulf, his trucking unit would move in after the infantry to retrieve damaged equipment and vehicles, and that he observed that the Iraqis did not bury their dead, so his unit had to get U.S. engineers to dig a hole for all the bodies. For purposes of this opinion only, please assume that this report of seeing dead bodies of Iraqis credible. (iv) The Veteran's wife's reports that after the Veteran returned from serving in the Persian Gulf during his second period of active duty, he acted edgy, with outbursts of anger, and that he is violent in his sleep and that therefore she cannot sleep in the same bed as him. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After completing all the above directives 1-3, please schedule the Veteran for a VA examination to determine the nature and etiology of a headache disability. Make the claims file available to the examiner for review of the case. The examiner is asked to please provide opinions as to the following: (a) Please comment on the nature and diagnosis(es) of the Veteran's headache disability, to include whether the Veteran currently has migraine headaches. (b) Please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any of the above headache disorder(s) first manifested in a period of active service or is etiologically related to a period of active service. For purposes of the above opinions, the examiner's attention is invited to the following: i. The Veteran's reports that he first experienced migraine headaches during his first period of active duty, and that his headaches continued since that time, to include during his second period of active duty. ii. The Veteran's description of his subjective headache history over time, since his first period of active duty, as described in the February 2017 Board hearing. iii. The Veteran's report that he was first diagnosed with migraines during a period of ACDUTRA in Arizona in the 1980s. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. Thereafter, readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. The appellant has 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs