Citation Nr: 18148822 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-06 048 DATE: November 9, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for bodyaches/joint pains is reopened. New and material evidence having been received, the claim for entitlement to service connection for headaches is reopened. New and material evidence having been received, the claim for entitlement to service connection for insomnia is reopened. Entitlement to service connection for body aches in the bilateral wrists, shoulders, and knees is granted. Entitlement to service connection for insomnia is granted. REMANDED Entitlement to service connection for anemia, also claimed as disorders of iron metabolism, is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for irritable bowel syndrome is remanded. Entitlement to service connection for rhinitis, to include as due to a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for headaches, to include as due to a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, is remanded. REFERRED The issue of entitlement to waiver of recovery of an overpayment of nonservice-connected pension benefits originally in the amount of $9,359.00 was raised in an April 2015 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. The Board notes that the Veteran requested a hearing in connection with that issue. FINDINGS OF FACT 1. A November 2002 rating decision denied the Veteran entitlement to service connection for nightmares and sleeplessness, headaches, and body aches; the Veteran did not timely appeal the denial; and new and material evidence was not received as to those issues within the one-year appeal period following issuance of the November 2002 rating decision. 2. A February 2005 rating decision denied the Veteran’s petition to reopen the previously denied claims for entitlement to service connection for nightmares and sleeplessness, headaches, and body aches; the Veteran did not timely appeal the denial; and new and material evidence was not received as to those issues within the one-year appeal period following issuance of the February 2005 rating decision. 3. Evidence received since the February 2005 rating decision is new and raises a reasonable possibility of substantiating the claims for entitlement to service connection for nightmares and sleeplessness, headaches, and body aches. 4. The probative evidence of record reflects that the Veteran’s body aches in the bilateral wrists, shoulders, and knees are most likely related to a medically unexplained multisymptom illness of unknown etiology. 5. The probative evidence of record reflects that the Veteran’s insomnia, which he claimed as nightmares and sleeplessness, is a symptom of his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder. CONCLUSIONS OF LAW 1. The November 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The February 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 3. New and material evidence having been received, the claim for entitlement to service connection for nightmares and sleeplessness is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 4. New and material evidence having been received, the claim for entitlement to service connection for headaches is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 5. New and material evidence having been received, the claim for entitlement to service connection for body aches is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 6. The criteria for entitlement to service connection for body aches in the bilateral wrists, shoulders, and knees have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 7. The criteria for entitlement to service connection for insomnia have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1974 to October 1976 and from September 1990 to March 1991. Reopening Issues The Veteran seeks to reopen his claims for entitlement to service connection for joint pains, headaches, and insomnia, which were previously denied in the November 2002 and February 2005 rating decisions. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states 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. New evidence is existing evidence not previously considered by VA. Material evidence is existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In this case, the Veteran submitted original claims for entitlement to service connection for nightmares, sleeplessness, headaches, and body aches in August 2002. The AOJ denied the Veteran’s claims in the November 2002 rating decision, explaining that the Veteran had not responded to an undiagnosed illness letter sent to him in September 2002, and that the requirements for entitlement to service connection under the provisions of 38 C.F.R. § 3.317 had not been met. The letter informing the Veteran of the August 2004 rating decision explained to the Veteran his right to appeal the decision and was enclosed with a VA Form 4107, Your Rights to Appeal Our Decision, which provided further guidance on appealing the decision. The Veteran did not submit a timely notice of disagreement as to the November 2002 rating decision, and new and material evidence as to the issues was not received within the one-year appeal period following issuance of the November 2002 rating decision. As such, the Veteran did not complete a timely appeal of the November 2002 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302,20.1103. In September 2004, the Veteran submitted a petition to reopen the claims for entitlement to service connection for headaches, nightmares, sleeplessness, and body aches. The AOJ denied the Veteran’s petition in the February 2005 rating decision, explaining that new and material evidence had not been received as to those issues since the November 2002 rating decision. The Veteran did not submit a timely notice of disagreement as to the February 2005 rating decision. The letter informing the Veteran of the February 2005 rating decision explained to the Veteran his right to appeal the decision and was enclosed with a VA Form 4107, which provided further guidance on appealing the decision. The Veteran did not submit a timely notice of disagreement as to the February 2005 rating decision, and new and material evidence as to the issues was not received within the one-year appeal period following issuance of the February 2005 rating decision. As such, the Veteran did not complete a timely appeal of the February 2005 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302,20.1103. With regard to the petition to reopen the previously denied claim for entitlement to service connection for headaches, the evidence associated with the record since issuance of the final February 2005 rating decision includes a November 2012 VA Gulf War General Medical examiner’s opinion that the Veteran’s sleep problems, depression, and insomnia “may have contributed to headaches”. The Veteran has since been service connected for PTSD and major depressive disorder, and the Board herein grants the Veteran entitlement to service connection for insomnia. Therefore, the November 2012 VA examiner’s opinion indicates that the Veteran’s headaches may be secondary to a now service-connected disability. With regard to the petition to reopen the previously denied claim for entitlement to service connection for body aches, the evidence associated with the record since issuance of the final February 2005 rating decision includes a December 2013 VA opinion stating that the Veteran’s body aches are most likely diagnosable but are part of a medically unexplained chronic multisymptom illness of an unknown etiology. With regard to the petition to reopen the previously denied claim for entitlement to service connection for insomnia, the evidence associated with the record since issuance of the final February 2005 rating decision includes VA treatment records and an August 2016 VA PTSD examiner’s finding that the Veteran’s nightmares and insomnia are symptoms of his now service-connected PTSD with major depressive disorder. The Board finds that the above-described evidence is new because it was not previously considered by VA. It is also material because it puts forth new information that raises a reasonable possibility of substantiating the claims for entitlement to service connection for headaches, body aches, and insomnia. See Shade, 24 Vet. App. 110. Therefore, the Board concludes that new and material evidence has been received to reopen the Veteran’s claims for entitlement to service connection for a low back condition and for entitlement to service connection for nightmares and sleeplessness, headaches, and body aches, and the claims are reopened. 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to a qualifying chronic disability, provided that certain requirements are met. For purposes of 38 C.F.R. § 3.317, the term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). A “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(b) lists the signs or symptoms of undiagnosed illnesses and medically unexplained chronic multisymptom illnesses. 1. Entitlement to service connection for body aches in the bilateral wrists, shoulders, and knees The Veteran seeks entitlement to service connection for body aches. He contends that the body aches are symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness caused by his service in the Persian Gulf during his second period of active service. His service personnel records reflect that he had service in Saudi Arabia from September 1990 to March 1991. Accordingly, he is a Persian Gulf veteran, as defined in 38 C.F.R. § 3.317(e), and he may be awarded compensation under the provisions of 38 C.F.R. § 3.317, provided the other criteria for entitlement are met. Turning to the relevant evidence of record, the Veteran’s medical treatment records reflect that he has reported body aches in his bilateral wrists, shoulders, and knees without any specific preceding injury. X-rays of the shoulders obtained in September 2007 revealed mild AC joint spurring in the left shoulder and a normal right shoulder. X-rays of the knees obtained in September 2007 revealed mild degenerative changes and a slight prominence in the soft tissues. However, an x-ray of the bilateral knees obtained in May 2011 showed no definite abnormality. In December 2013, a VA joints examiner indicated that the Veteran’s had no specific abnormalities on examination to explain his reported wrist, shoulder, and knee aches, and that his most recent x-ray of the knees was normal. Later that same month, the examiner provided an addendum opinion stating that the Veteran most likely has chronic pains in his joints that resulted from his military service because his recent x-rays were negative, there had been no specific injuries, and there was no obvious evidence of arthritis on imaging or physical examination. The examiner therefore concluded that the Veteran’s body aches in the bilateral wrists, shoulders, and knees are most likely diagnosable but are part of a medically unexplained multisymptom illness of an unknown etiology. The Board finds the December 2013 VA examiner’s statements and addendum opinion to be probative evidence reflecting that the Veteran’s body aches of the bilateral wrists, shoulders, and knees are a symptom of a medically unexplained chronic multisymptom illness because they are supported by appropriate rationale and are consistent with the evidence of record. Although the September 2007 knee x-ray reportedly showed mild degenerative changes that could be the cause of the Veteran’s bilateral knee pain, the May 2011 x-ray showed no such changes. The December 2013 VA examiner explained that, given the lack of specific injuries and objective findings to explain the wrist, shoulder, and knee aches, they are most likely part of a medically unexplained chronic multisymptom illness. Accordingly, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s body aches in the bilateral wrists, shoulders, and knees are related to a medically unexplained chronic multisymptom illness. The benefit of the doubt is resolved in the Veteran’s favor, and the Board therefore concludes that service connection for the body aches in the bilateral wrists, shoulders, and knees must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.317. 2. Entitlement to service connection for insomnia The Veteran seeks entitlement to service connection for insomnia due to nightmares. His VA treatment records reflect that his mental health care providers have attributed his insomnia to his diagnosed PTSD with major depressive disorder. His care providers have even described his insomnia, nightmares, and awakenings as “classic symptoms of PTSD”. The Veteran was granted entitlement to service connection for PTSD with major depressive disorder in an October 2016 rating decision. Given the competent statements and findings from the Veteran’s treatment providers, the Board concludes that the probative evidence of record reflects that his insomnia is a symptom of his service-connected PTSD with major depressive disorder, and that entitlement to service connection for insomnia must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for anemia, chronic fatigue syndrome, and irritable bowel syndrome. The record does not currently contain the Veteran’s complete service treatment records. Email correspondence dated in June 2007 and August 2007 documents two attempts made by the AOJ to locate the Veteran’s service treatment records. In November 2007, the AOJ issued a Formal Finding on the Unavailability of Service Medical Records explaining its efforts to locate the Veteran’s service treatment records, and stating that “On August 7, 2007, a second request for the SMRs was sent with no response.” The AOJ also sent a letter to the Veteran in November 2007 informing him that his service treatment records could not be obtained, and provided him an opportunity to furnish any service records or other evidence he had in his possession. However, the record shows that a response to the June 2007 email correspondence was received in December 2007. The December 2007 response provides a contact for requesting records previously shipped from the VA Records Management Center (RMC), and further instructs the AOJ that “[t]he record at code 13 might contain SMR’s, but you need to make a PIES request. If MO1 is prohibited, you request SMR’s under O99.” There is no indication that the AOJ used the information contained in the December 2007 response to make further efforts to obtain the Veteran’s service treatment records. The relevant regulations require VA to make “as many requests as are necessary to obtain relevant records from a Federal department or agency”, and state that “[a] follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.” 38 C.F.R. § 3.159(c)(1). As the December 2007 email response provided additional information showing that subsequent requests could result in obtaining the records sought, but the record does not show that the AOJ made such requests, the issues must be remanded so that such efforts may be made. 2. Entitlement to service connection for rhinitis, to include as due to a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, is remanded. The Veteran seeks entitlement to service connection for rhinitis, which he contends is due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. A December 2007 VA nose, sinus, larynx, and pharynx examiner diagnosed the Veteran with probable mild allergic rhinitis. An October 2010 VA nose, sinus, larynx, and pharynx examiner found no current evidence of acute or chronic allergic rhinitis. The Veteran’s VA treatment records reflect that the Veteran has been diagnosed with rhinitis and prescribed medications for the condition. Thus, the record reflects that the Veteran has been diagnosed with rhinitis, and the medical treatment records suggest that the condition may be related to allergies. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection because no VA examiner has opined whether the Veteran’s rhinitis may be an upper respiratory system symptom of a medically unexplained chronic multisymptom illness. A remand is required so that such an opinion may be obtained. 3. Entitlement to service connection for headaches, to include as due to a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, is remanded. The Veteran seeks entitlement to service connection for headaches, which he contends are due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. The medical evidence of record indicates that the Veteran’s headaches may be vascular in nature or may be caused by a sinus condition or a cervical spine condition. In addition, a November 2012 VA headaches examiner cited as possible contributors to the Veteran’s headaches his prior history of heavy alcohol use, sleep disturbances, depression, and insomnia. The Veteran’s insomnia and depression are service-connected disabilities. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because it is unclear whether the Veteran’s headaches may be a symptom of a medically unexplained chronic multisymptom illness, and no VA examiner has opined whether the Veteran’s headaches may be proximately due to, a result of, or aggravated by his service-connected disabilities, including his service-connected PTSD with major depressive disorder, sleep disturbances, and insomnia. A remand is required so that such an opinion may be obtained. The matters are REMANDED for the following action: 1. Make further efforts to obtain the Veteran’s complete service treatment records. The actions described in the December 2007 response to the June 2007 email correspondence must be taken. Specifically, VAVBASTL/RMC/RCD must be contacted, and a PIES request must be made under code MO1 or, if that action is prohibited, under code O99 to obtain the Veteran’s service treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s rhinitis is at least as likely as not (50 percent probability or greater) an upper respiratory system symptom of a medically unexplained chronic multisymptom illness. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s headaches are at least as likely as not (50 percent probability or greater) a symptom of a medically unexplained chronic multisymptom illness. If not, the clinician should also provide an opinion as to whether the Veteran’s headaches are at least as likely as not proximately due to or a result of his service-connected disabilities, including his service-connected PTSD with major depressive disorder, sleep disturbances, and insomnia. If not, the clinician should also provide an opinion as to whether the Veteran’s headaches are at least as likely as not aggravated beyond its natural progression by service-   connected disabilities, including his service-connected PTSD with major depressive disorder, sleep disturbances, and insomnia. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel