Citation Nr: 18148451 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-37 399 DATE: November 7, 2018 ORDER Entitlement to a rating in excess of 10 percent for left cervicalgia with radiculopathy, left upper extremity, is dismissed. New and material evidence has been received to reopen a claim of entitlement to service connection for urinary tract infections, also claimed as frequency and obstructive voiding. New and material evidence has been received to reopen a claim of entitlement to service connection for upper respiratory infections. Entitlement to service connection for an undiagnosed respiratory disorder is granted. Entitlement to service connection for chronic fatigue syndrome is granted. REMANDED Entitlement to service connection for urinary tract infections is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for left knee disorder is remanded. Entitlement to a compensable rating for internal and external hemorrhoids is remanded. FINDINGS OF FACT 1. In a statement received in March 2013, and prior to the promulgation of a decision in the appeal, the Veteran’s representative requested a withdrawal of the appeal concerning an increased rating for a left upper extremity disorder. 2. By a November 2011 rating decision, the RO continued a previous denial of the Veteran’s claim for service connection for urinary tract infections; she was advised of the RO’s decision, and of her appellate rights. 3. The Veteran did not initiate an appeal of the RO’s November 2011 decision within one year; nor was new and material evidence received within a year. 4. Additional evidence received since the RO’s November 2011 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for urinary tract infections, and raises a reasonable possibility of substantiating the claim. 5. By a July 2006 rating decision, the RO denied the Veteran’s claim for service connection for an upper respiratory infection; she was advised of the RO’s decision, and of her appellate rights. 6. The Veteran did not initiate an appeal of the RO’s July 2006 decision within one year; nor was new and material evidence received within a year. 7. Additional evidence received since the RO’s July 2006 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for an upper respiratory infection, and raises a reasonable possibility of substantiating the claim. 8. The Veteran had active military service in the Southwest Asia Theater of operations. 9. The Veteran’s chronic fatigue syndrome was incurred in service or resulted from a medically unexplained chronic multisymptom illness. 10. The Veteran’s undiagnosed respiratory disorder was incurred in service or resulted from a medically unexplained chronic multisymptom illness. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal concerning an increased rating for a left upper extremity disorder by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The RO’s November 2011 rating decision which continued a previous denial of service connection for urinary tract infections, is final. 38 U.S.C. §§ 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2011). 3. New and material evidence has been received to reopen the Veteran’s claim for service connection for urinary tract infections. 38 U.S.C. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2011). 4. The RO’s July 2006 rating decision which denied service connection for upper respiratory infections, is final. 38 U.S.C. §§ 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2006). 5. New and material evidence has been received to reopen the Veteran’s claim for service connection for upper respiratory infections. 38 U.S.C. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2006). 6. The criteria for service connection for chronic fatigue syndrome, as part of an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 7. The criteria for service connection for an undiagnosed respiratory disorder, as part of an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1990 to May 1991, December 2004 to November 2005 and from November 2006 to December 2008, with additional Reserve service. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the RO in Louisville, Kentucky. In July 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. The Board notes that the Veteran filed a Notice of Disagreement (NOD) with respect to the April 2018 denial of entitlement to service connection for ganglion cysts. In June 2018, the RO acknowledged receipt of the NOD and is taking additional action. As such, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the NOD has been recognized and additional action on the NOD is pending at the RO, Manlincon is not applicable in this case. Withdrawn Appeal—Left Upper Extremity Disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in a statement received in March 2013, the Veteran’s representative stated that the Veteran wished to withdraw her appeal concerning an increased rating for a left upper extremity disorder. Therefore, as the appellant has withdrawn her appeal, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. New and Material Evidence-Urinary Tract Infections In a November 2011 rating decision, the RO denied service connection for urinary tract infections, on the basis that there was no nexus to service. The Board notes that such claim was initially denied in an October 2006 rating decision, of which the Veteran was notified of in November 2006. In correspondence dated in October 2007, the Veteran disagreed with the decision, however the RO failed to recognize this as a timely Notice of Disagreement. However, because the RO readjudicated the claim in November 2011 and specifically addressed the new evidence submitted by the Veteran—treatment records—and because the Veteran did not perfect an appeal of that decision, the Board has determined that the original claim is no longer pending, and new and material evidence is required to open the claim. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (stating that a new decision must be issued that is “directly responsive” to the new evidence); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Evidence received since the time of the RO’s November 2011 rating decision includes VA opinions dated in June 2014 and May 2016 regarding the etiology of the Veteran’s urinary tract infections, along with her hearing testimony. The Board finds that such evidence is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for urinary tract infections. Accordingly, the claim is reopened. New and Material Evidence-Upper Respiratory Infections In a July 2006 rating decision, the RO denied service connection for upper respiratory infections, on the basis that there was no evidence of a chronic disorder related to service. Evidence received since the time of the RO’s July 2006 rating decision includes a May 2014 VA examination regarding the nature and etiology of the Veteran’s upper respiratory infections, along with her hearing testimony. The Board finds that such evidence is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for upper respiratory infections. Accordingly, the claim is reopened. Service Connection-Chronic Fatigue Syndrome and a Respiratory Disorder The Veteran seeks service connection for chronic fatigue syndrome and a respiratory disorder, claimed as due to service in the Persian Gulf War. Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. VA is authorized to pay compensation to any Persian Gulf veteran suffering from a “qualifying chronic disability.” A qualifying chronic disability for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a), (c). “Objective indications of chronic disability” include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). Based on a review of the evidence, the Board concludes that service connection for chronic fatigue syndrome and a respiratory disorder is warranted. As discussed above, the Veteran served during the Persian Gulf War and chronic fatigue syndrome and respiratory complaints are qualifying chronic disabilities. The Board notes that the Veteran’s medical conditions and related symptoms are complex. During an April 1991 medical examination, the Veteran reported breathing problems and stated that she did not smoke. During a November 2005 post-deployment health assessment, the Veteran indicated positive responses for difficulty breathing and still feeling tired after sleeping. An August 2005 service treatment record reflects complaints of dyspnea, and another service treatment record, also dated in August 2005, documents emergency treatment for chest pain and difficulty breathing. Private treatment notes dated in April and May 2006 document the Veteran’s complaints of fatigue. The Veteran underwent a VA examination in May 2006, during which she reported an onset of respiratory complaints approximately two months after arriving in Saudi Arabia, and that she has had recurrent episodes of shortness of breath since then. The examiner was unable to render a diagnosis, and stated that it was an undiagnosed illness that was chronic and intermittent in nature. In May 2014, the Veteran was afforded a VA respiratory examination. The examiner noted that the Veteran intermittently used an inhalational bronchodilator; however, her PFTs, chest X-ray and physical examination were normal and therefore she did not diagnose a chronic respiratory disorder. The examiner noted the Veteran’s history of upper respiratory infections, and found that these were of the nature and frequency expected in the general population, and that such were not related to service. The Veteran underwent a VA examination for her chronic fatigue syndrome in May 2014 and an addendum opinion was obtained in June 2016, during which the examiners declined to diagnose chronic fatigue syndrome, and indicated that her fatigue was secondary to her depression and fibromyalgia. The Veteran submitted a July 2014 Chronic Fatigue Syndrome Disability Benefits Questionnaire which showed a diagnosis of chronic fatigue syndrome. Given the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran has chronic fatigue syndrome and an undiagnosed respiratory disorder. Accordingly, when resolving reasonable doubt in the Veteran’s favor, and in considering the Veteran’s service in the Southwest Asia theater of operations during the Persian Gulf War, as well as the pertinent medical evidence of record, the Board finds that it is at least as likely as not that she has chronic fatigue syndrome and an undiagnosed respiratory disorder that is related to service. Therefore, the claims for service connection for chronic fatigue syndrome and an undiagnosed respiratory disorder are granted. REASONS FOR REMAND Urinary Tract Infections An addendum opinion is required regarding the etiology of the Veteran’s urinary tract infections. In this regard, in May 2014, a VA clinician opined that it was less likely than not that the Veteran’s urinary tract infections were related to her military sexual trauma, finding that such was more than likely related to her pregnancy and cesarean section. However, in June 2014, the Veteran submitted an article entitled “ Bladder Dysfunction in Sexual Abuse Survivors,” which indicates a positive correlation between the two. Another VA opinion was obtained in May 2016, however such opinion merely states that “there is no direct relationship between UTIs and PTSD.” The Board notes that such opinion does not address the Veteran’s contention that it is the underlying cause of her PTSD—her military sexual trauma—that she is claiming caused her urinary tract infections. Accordingly, the Board finds that an addendum opinion, which addresses the article showing a link between sexual trauma and bladder dysfunction, must be obtained. Migraines An addendum opinion is required regarding the etiology of the Veteran’s migraines. In this regard, in June 2016, a VA clinician opined that it was less likely than not that the Veteran’s migraines were related to her PTSD, stating that “there is no direct relationship between headaches and PTSD.” However, in June 2014, the Veteran submitted an article summarizing studies showing a link between PTSD and migraines. Additionally, the Veteran testified that she believes her migraines could be related to hitting her head when she was pulled under a picnic table during her first sexual assault in service. The Board notes that she is service-connected for PTSD as due to her military sexual trauma, and finds a head injury consistent with her assault. Accordingly, the Board finds that an addendum opinion which addresses the article showing a link between PTSD and migraines, and considers whether the Veteran’s head trauma is related to her migraines, must be obtained. Right and Left Knee Disorder An addendum opinion is required regarding the etiology of the Veteran’s claimed bilateral knee disorder. She testified that such is related to service, to include as due to physical conditioning and falling on her knees. A VA opinion was obtained in May 2016, in which the clinician opined negatively between the Veteran’s bilateral knee disorder and service, stating that there was no specific knee injury noted during her 2005 term of service. However, service treatment records document that during an October 2008 visit, the Veteran reported that she fell on her knees in about March 2008 and that she had been having bilateral knee pain since then, with some locking of her knees and her right knee occasionally giving way. Accordingly, the Board finds that an addendum opinion, which considers the Veteran’s in-service fall and report of symptoms in service, must be obtained. Hemorrhoids The Veteran last underwent an examination for her hemorrhoids in September 2015, at which time her hemorrhoids were asymptomatic and were determined to be mild to moderate in severity. During the hearing, the Veteran testified that her hemorrhoids are often symptomatic, causing itching and bleeding, suggestive of an increase in severity. Accordingly, the Board finds that a current examination is warranted to determine the severity of her hemorrhoids. The matters are REMANDED for the following action: 1. Obtain any recent, outstanding VA treatment records. 2. Forward the claims file to an appropriate medical professional to offer an addendum opinion regarding the etiology of the Veteran’s urinary tract infections, frequency and obstructive voiding. The need for another examination is left up to the discretion of the clinician authoring the addendum opinion. The claims file, including a copy of this remand, should be provided to the examiner, and the examiner should indicate that the Veteran’s records have been reviewed. The examiner should provide an opinion regarding whether is it at least as likely as not (50 percent probability) that the Veteran’s urinary tract infections, frequency and obstructive voiding, are caused by, or are otherwise related to, the Veteran’s active duty service to include her military sexual trauma. In rendering an opinion, the examiner should comment on the article “Bladder Dysfunction in Sexual Abuse Survivors,” submitted by the Veteran in June 2014. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Forward the claims file to an appropriate medical professional to offer an addendum opinion regarding the etiology of the Veteran’s migraines. The need for another examination is left up to the discretion of the clinician authoring the addendum opinion. The claims file, including a copy of this remand, should be provided to the examiner, and the examiner should indicate that the Veteran’s records have been reviewed. The examiner should provide an opinion regarding: a. whether is it at least as likely as not (50 percent probability) that the Veteran’s migraines are caused by, or are otherwise related to, the Veteran’s active duty service, to include head trauma incurred during her military sexual trauma. b. whether is it at least as likely as not (50 percent probability) that the Veteran’s migraines are caused or aggravated by her service-connected PTSD. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address (1) the baseline manifestations of the Veteran’s disability found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability. In rendering an opinion, the examiner should comment on the article “Abuse, Post-Traumatic Stress Disorder and Migraine” submitted by the Veteran in June 2014. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 4. Forward the claims file to an appropriate medical professional to offer an addendum opinion regarding the etiology of the Veteran’s bilateral knee disorder. The need for another examination is left up to the discretion of the clinician authoring the addendum opinion. The claims file, including a copy of this remand, should be provided to the examiner, and the examiner should indicate that the Veteran’s records have been reviewed. The examiner should provide an opinion regarding whether is it at least as likely as not (50 percent probability) that the Veteran’s bilateral knee disorder was caused by, or is otherwise related to, the Veteran’s active duty service, to include physical conditioning and falling on her knees. The examiner should specifically address the service treatment record detailing a fall and resulting symptoms in approximately March 2008. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 5. Schedule the Veteran for a VA examination to assess the current severity of her hemorrhoids.   6. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel