Citation Nr: 1805499 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-20 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression and mood disorder. 2. Entitlement to service connection for sleep disturbances. 3. Entitlement to service connection for muscle cramps of the legs to include as due to undiagnosed skin illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 4. Entitlement to service connection for headaches to include as due to undiagnosed skin illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 5. Entitlement to service connection for joint aches of the body to include the hands and thumbs to include as due to undiagnosed skin illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 6. Entitlement to service connection for a chronic cough. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active service from October 1983 to April 1989 and from September 1989 to November 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from March and May 2011 rating decisions of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. With regard to the Veteran's acquired psychiatric disorder claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the record reveals that the Veteran has been diagnosed with depression and mood disorder. The Board further notes that the Veteran is already service connected for PTSD. In light of the Court's holding in Clemons, the Board has recharacterized the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression and mood disorder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board initially notes that during the above-referenced May 2017 Board hearing, the Veteran testified that he has received recent VA treatment for his disabilities on appeal. See the May 2017 Board hearing transcript, pgs. 5-6. The Board observes that the most recent association of VA treatment records with the Veteran's claims folder was in May 2016. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate outstanding records with the Veteran's claims folder. The Board also notes that the Veteran's wife testified that the Veteran currently undergoes private treatment for his chronic cough. Therefore, on remand, all outstanding treatment records pertaining to the Veteran's chronic cough should be obtained and associated with the claims folder. With regard to the Veteran's acquired psychiatric disorders, the Veteran contends that these disorders are due to service, in particular his service in Somalia. See, e.g., the May 2017 Board hearing transcript, page 8. The Veteran was provided a VA mental health examination in March 2014. He reported that during service, he served in Africa and had to assist in the recovery of 6 crewmen of a plane that crashed during a training exercise. Further, during Operation Desert Storm, the Veteran reported that he was frequently exposed to SCUD missile attacks and had to wear a protective mask while sleeping. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with PTSD and concluded that the Veteran's PTSD is due to his service. While the VA examiner did not diagnose the Veteran with any other acquired psychiatric disorder, the Board notes that the Veteran has been diagnosed with mood disorder and depression. See VA treatment records dated April and July 2010. Although J.B., M.D. indicated in a letter dated May 2011 that the Veteran has sleep disturbance, depression, and mood disorder that are due to his service in the Gulf War, he did not provide a rationale for his conclusion. There is no other medical opinion of record which addresses the etiology of the Veteran's mood disorder, depression, or sleep disturbance or whether these are manifestations of PTSD or separate disorders arising from different events or experiences. In light of the foregoing, the Board finds that further examination is warranted in order to determine the nature and etiology of these disabilities and symptoms. See 38 C.F.R. § 3.159(c)(4) (2017) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Moreover, regarding the Veteran's sleep disturbance claim, the Board finds that the VA examiner should determine whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The Board further notes that in order to avoid prohibited pyramiding, the VA examiner should note whether the Veteran's mood disorder, depression, and sleep disturbance are manifested by different symptomatology than the Veteran's service-connected PTSD. With respect to the Veteran's claim of service connection for chronic cough, the Veteran contends that he has a disability manifested by chronic cough that is due to service, to include exposure to oil fields during service in the Gulf War. See the May 2017 Board hearing transcript, page 21. The Board notes that the Veteran's service treatment records document treatment for an upper respiratory infection and a sore throat in April 1993. In an April 2011 report, a VA examiner opined after review of the Veteran's medical history that the Veteran has an obstructive pulmonary disease which is manifested by a chronic cough which is not related to the Veteran's service. On the contrary, the VA examiner opined that the Veteran's obstructive pulmonary disease is due to a history of smoking. However, the VA examiner did not address the Veteran's in-service exposure to oil fields or treatment for upper respiratory infection. There is no other medical opinion of record which addresses the etiology of the Veteran's diagnosed obstructive pulmonary disease. Therefore, the Board finds that remand is warranted in order for the Veteran to be provided a VA examination to determine the etiology of his obstructive pulmonary disease manifested by a chronic cough. With regard to the Veteran's claim of service connection for headaches and muscle cramps of the legs, the Veteran contends that these conditions are related to service. The Veteran was provided a VA examination for his headaches and muscle cramps in December 2010. He reported headaches that started a year ago as well as muscle cramps in the back of his thighs. EMG testing revealed essentially normal results. After examination of the Veteran, the VA examiner opined that the Veteran's muscle cramps are not an undiagnosed illness; although it is a diagnosable illness, the etiology is only partially understood and is still under active investigation. The examiner did not provide any further finding as to the etiology of the Veteran's muscle cramps. The examiner also diagnosed the Veteran with migraine headaches and concluded that it is unlikely that the migraines are due to in-service exposure to environmental contaminants or undiagnosable illness as such migraines would manifest so many years after exposure. However, the examiner then stated that the etiology is only partially understood and is still under active investigation. The Board finds that the December 2010 VA examination findings with regard to the Veteran's headaches and muscle cramps are speculative in nature in that the examiner indicated that the etiologies are only partially understood and are under active investigation. There is no further clarification or opinion of record pertaining to the Veteran's headaches or muscle cramps of the legs. As such, the Board finds that examination of the Veteran is warranted in order to determine the etiology of his diagnosed headaches and muscle cramps. Finally, with respect to the Veteran's claim of service connection for joint aches of the body to include the hands and thumbs, the Board notes that the Veteran is currently service connected for chronic fatigue syndrome. Further, VA examination findings most recently conducted in May 2016 did not reveal a separate chronic disability or undiagnosed illness manifested by joint aches of the body including the hands and thumbs. However, the Veteran has recently testified at the May 2017 Board hearing that he has constant pain in his wrists as well as his knees and ankles. Pertinently, these findings were not addressed during the May 2016 VA examination. In light of the foregoing, the Board finds that examination of the Veteran is warranted in order to determine the etiology of any disability or undiagnosed illness specifically manifested by joint pain including the Veteran's wrists, knees, and ankles. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his disabilities on appeal since service. Of particular interest are treatment records pertaining to the Veteran's chronic cough which were referenced during the May 2017 Board hearing. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claims. The Veteran must then be given an opportunity to respond. 2. Request any outstanding VA treatment records pertaining to the claims remanded herein. All attempts to secure this evidence must be documented in the claims folder by the AOJ. 3. Thereafter, the Veteran should be afforded an appropriate VA examination by an appropriate medical professional in order to determine the current nature and etiology of his acquired psychiatric disorders including mood disorder and depression as well as his claimed sleep disturbance other than PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. a. The examiner should note and detail all reported mental health symptoms including sleep disturbance. b. The examiner should specifically state whether the Veteran's sleep disturbance is attributed to a known clinical diagnosis. c. If any symptoms of sleep disturbance have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. d. For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's service, to include the Veteran's service in the Gulf War as well as Africa. e. Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran has a separate acquired psychiatric disorder other than PTSD, to include mood disorder and depression that is attributable to his active service, to include his service in the Gulf War and Africa. f. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's mood disorder and depression is/are separate from PTSD but are proximately due to or caused by his service-connected PTSD. g. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's mood disorder and/or depression is/are aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected PTSD. If the examiner finds that the mood disorder and/or depression is/are aggravated by the service-connected PTSD, then he/she should quantify the degree of aggravation, if possible. The VA examiner should note whether the Veteran's mood disorder, depression, and sleep disturbance are manifested by different symptomatology than the Veteran's service-connected PTSD. A rationale for any opinion offered should be provided. 4. The Veteran should be afforded an appropriate VA examination by an appropriate medical professional in order to determine the current nature and etiology of his headaches, muscle cramps of the legs, and joint aches of the body. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. a. The examiner should note and detail all reported symptoms associated with headaches, joint aches of the body, and muscle cramps of the legs. b. The examiner should specifically state whether the Veteran's headaches, muscle cramps of the legs, and joint aches of the body are attributed to known clinical diagnoses. c. If any symptoms of headaches, muscle cramps of the legs, and joint aches of the body have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. d. For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's service, to include the Veteran's service in the Gulf War as well as Africa. A rationale for any opinion offered should be provided. 5. The Veteran should be afforded an appropriate VA examination by an appropriate medical professional in order to determine the current nature and etiology of his obstructive pulmonary disease manifested by a chronic cough. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's diagnosed obstructive pulmonary disease is related to his service, to include his credible report of exposure to oil fields during service in the Gulf War as well as treatment for an upper respiratory infection and sore throat in April 1993. A rationale for any opinion offered should be provided. 6. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).