Citation Nr: 18151166 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-08 511 DATE: November 20, 2018 ORDER Entitlement to service connection for chronic fatigue disorder, to include as due to service in Southwest Asia, is denied. Entitlement to a rating greater than 30 percent for migraines is denied. New and material evidence having been received, the request to reopen a claim of service connection for gastroenteritis is granted. New and material evidence having been received, the request to reopen a claim of service connection for GERD is granted. The appeal as to the issue of entitlement to an increased rating for a right shoulder disability is dismissed. An effective date prior to May 5, 2014, for the currently assigned 30 percent rating for service-connected migraines, is denied. REMANDED 1. Entitlement to service connection for GERD is remanded 2. Entitlement to service connection for gastroenteritis is remanded. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asthma is remanded. 4. Entitlement to a rating greater than 30 percent for adjustment disorder with depressed mood and post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome and his symptoms of fatigue have been attributed to other diagnoses. 2. Throughout the appeal period, the Veteran’s migraines have been manifested by characteristic prostrating attacks approximately once per month; without evidence that his headaches are of such frequency and severity as to be productive of severe economic inadaptability. 3. Evidence received since the March 2009 rating decision denying service connection for gastroenteritis and GERD relates to unestablished facts necessary to substantiate the claims, or raises a reasonable possibility of substantiating the claims. 4. A substantive appeal was not received by VA, as to the issue of entitlement to an increased rating for a right shoulder disability, within either one year of notification of the October 2013 rating decision or within 60 days of the issuance of the February 2016 SOC. 5. There is no communication of record prior to May 5, 2014, that can be construed as a formal or informal claim for an increased rating for migraines. 6. The earliest date evidence was factually ascertainable which showed the Veteran’s migraine condition increased in severity was in September 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (2017). 2. The criteria for a disability rating greater than 30 percent for the Veteran’s migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 3. The March 2009 rating decision denying service connection for GERD and gastroenteritis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). 4. New and material evidence has been received to reopen the claims of service connection for gastroenteritis and GERD. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 5. The October 2013 rating decision is final, as to the issue of entitlement to an increased rating for a right shoulder disability, because a timely substantive appeal was not filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109, 19.35, 20.101(d), 20.200, 20.201, 20.202, 20.302 (2017). 6. The criteria for an effective date prior to May 5, 2014 for the currently assigned 30 percent rating for service-connected migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1999 to January 2009. As a threshold matter, the Board notes that, initially on appeal, was the issue of entitlement to an increased rating for a right shoulder disability. However, the Veteran did not perfect his appeal as to this issue. Although the issue was certified to the Board, certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. As it is clear that the Veteran did not perfect his appeal as to the issue of an increased rating for a right shoulder disability, the appeal with regard to this issue is dismissed. Thus, that claim is no longer before the Board. Claims to Reopen The Veteran is seeking to reopen claims of service connection for gastroenteritis and GERD that were previously denied in a rating decision dated March 2009. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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 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 decision makers which bear 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). 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). The evidence shows that the Veteran’s claims of service connection for gastroenteritis and GERD were previously denied in a March 2009 rating decision on the basis that the evidence failed to show a diagnosed disability for GERD, and that the Veteran’s gastroenteritis had resolved. In March 2012, the Veteran filed to reopen his claims. The evidence submitted since the March 2009 rating decision include a January 2016 VA examination for esophageal conditions showing a diagnosis of a Schatzki’s ring with moderate hiatal hernia. In the examination, the examiner noted that the Veteran’s hiatal hernia is associated with his gastroesophageal reflux (GERD). However, when finding that the condition was not associated with Gulf War exposure, he also noted that the “Veteran has a claimed disability pattern related to nausea, vomiting after meals, regurgitation, claimed also gastroenteritis.” This evidence seems to suggest that the Veteran’s diagnosed hiatal hernia is related to both the Veteran’s GERD and gastroenteritis. Given the above, the Board finds the evidence is new and material as it is not cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. The Board also notes the new and material evidence combined with the Veteran’s in-service diagnoses of GERD and gastroenteritis triggers VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the claims are reopened and remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Additionally, service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a 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 31, 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). 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 (CFS), 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). 1. Entitlement to service connection for chronic fatigue disorder. The Veteran seeks service connection for fatigue contending that the condition was caused by service, to include due to environmental hazards while on active duty in Iraq. After evaluating the evidence, the Board finds that service connection is not warranted. A review of the evidence shows that the Veteran complained of fatigue in service; however, this was noted as a symptom of his diagnosed anemia. Otherwise, his STRs are absent for any other complaints, treatment, or diagnosis pertaining to chronic fatigue disorder. Post-service records show that the Veteran presented to a private physician in February 2012, in which the clinician diagnosed the Veteran with several conditions, to include malaise and fatigue. However, there is no indication that the Veteran’s fatigue was a result of chronic fatigue syndrome. Moreover, the evidence suggests that the Veteran’s fatigue appears to be related to the Veteran’s reported insomnia and his prescribed psychiatric medication, namely Zoloft, with both being related to his service-connected psychiatric disorder. The Board notes that the Veteran is service-connected for adjustment disorder with depressed mood and PTSD in which the Veteran has consistently reported difficulty falling and staying asleep. The evidence shows that the Veteran’s complaints of poor sleep have been considered as a symptom of his psychiatric disorder. The Board also notes that while the private clinician diagnosed the Veteran with malaise and fatigue, he also prescribed the Veteran with Ambien, which is medication used to treat insomnia. Moreover, in a subsequent May 2012 visit, the same private clinician found that the Veteran’s fatigue was a result of the Veteran having withdrawal symptoms from being off Zoloft. In his January 2016 general VA examination, the Veteran reported that the condition of chronic fatigue syndrome was suggested by someone at the Birmingham VA after he complained of being tired. He further reported that he sleeps only 2 to 3 hours per night, and does not take sleeping medication. Upon examination, the examiner noted that the Veteran does not have a medical history of fatigue, he does not require continuous medication for said condition, nor are there any findings, signs, or symptoms related to the condition. The examiner concluded that there is insufficient information to warrant or confirm a diagnosis. Given the above and remaining evidence, the Board concludes that service connection for chronic fatigue syndrome is denied. Although the Veteran complained of fatigue during service and was diagnosed with fatigue post-service, the Veteran has not been diagnosed with chronic fatigue syndrome, nor does he have any signs or symptoms that would lead to said diagnosis. Rather, the evidence shows that the Veteran’s in-service fatigue was merely a symptom of his diagnosed anemia. Further, his post-service fatigue has been attributed to the insomnia he experiences, and was noted as being a symptom of discontinuing Zoloft, in which both circumstances relate to his service-connected psychiatric disorders. Moreover, this finding is supported by the Veteran’s own statement as he reported in his January 2016 VA examination, that his symptoms are part and parcel of his mental health issues and poor sleep habits from sleeping with all three of his children in bed. As mentioned above, a service connection claim must be accompanied by evidence that establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no competent medical evidence reflective of chronic fatigue syndrome at any time during the appeal period. Further, with regard to Gulf War Syndrome, his symptoms of fatigue have been attributed to other diagnoses such as anemia in service, and his psychiatric condition or treatment therefor, post service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for chronic fatigue syndrome. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to service connection for chronic fatigue syndrome is denied. See 38 U.S.C. §5107. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial disability rating that was assigned with a grant of service connection, the entire appeal period is for consideration. See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Moreover, staged disability ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such instances also, staged ratings may be assigned as warranted, based upon the facts found. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied. If, on the other hand, the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a rating greater than 30 percent for migraines The Veteran’s migraines have been rated as 30 percent disabling effective May 5, 2014, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under DC 8100, migraine headaches that occur with characteristic prostrating attacks on an average of once a month over the last several months warrants a 30 percent disability rating. Migraine headaches with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100 (2017). Factual background shows that in June 2011, the Veteran was given a CT scan for his brain after complaining of headaches and dizziness which revealed negative findings. In February 2012 during a private physician visit, the Veteran complained of headache, moderate in severity; in addition to, cough, ear pain, and head/chest congestion for five days, and that it has not improved with medication. Upon examination, the examiner noted no fever and no headache, but the Veteran had post nasal drainage, sinus congestion, ear pain, and cough. The Veteran was diagnosed with bronchitis and prescribed an inhaler, and syrup for cough/congestion. In a September 2015 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with migraines and tension headaches. The examiner noted symptoms of pulsating or throbbing pain lasting up to three days in duration, and that the Veteran has prostrating attacks of migraine headache pain more frequently than once per month, but not very frequently. The examiner further noted that the Veteran’s headache condition impacts his ability to work once a month. The Board notes that based upon this examination, the Veteran was awarded a 30 percent disability rating; however, the Board finds that the evidence does not support a higher rating. In support thereof, the Board initially notes that there is no medical evidence of record, private or VA, that show any complaints or treatment for the Veteran’s migraines during the appeal period. The only evidence provided by the Veteran is his assertion that he has had to take off from work; however, the Board notes that in April and May 2015 written correspondences from the Veteran and his attorney, both reported that the Veteran’s absences from work were due to a combination of issues, and not solely due to his migraines. This notion is further evidenced in a September 2015 mental health evaluation where the Veteran reported that he has taken 160 hours of leave off from work due to his anxiety and depression. Furthermore, the examiner in the Veteran’s September 2015 DBQ found that the Veteran’s headache condition impacts his ability to work once a month. Moreover, the evidence shows that the Veteran has maintained employment with the Social Security Administration, and there is no evidence that the Veteran’s migraine condition, alone, has caused frequent and completely prostrating and prolonged attacks resulting in severe economic inadaptability. As there is no evidence that supports a rating greater than 30 percent, the Board finds the preponderance of evidence weighs against the claim. Accordingly, the Veteran’s claim for a rating greater than 30 percent is denied. Earlier effective date The Board also recognizes that the Veteran contends an earlier effective date for the award of 30 percent disabling for migraines is warranted. The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). Generally, the effective date of an award of an increased evaluation is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). For increased disability compensation, the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the date of receipt of claim. 38 C.F.R. § 3.400 (o)(2) (in effect prior to March 24, 2015). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). After reviewing the evidence, the Board finds that VA did not receive a claim for an increased rating for migraines at no time prior to May 5, 2014, and there is no factually ascertainable evidence showing an increase in his migraine condition until September 2015. In so finding, the Board notes that the Veteran’s increased rating claim for service-connected migraines was first raised informally in the Veteran’s May 5, 2014 Notice of Disagreement (NOD) for unrelated claims. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for a higher rating prior to the initial May 2014 informal claim. While the Veteran filed prior claims for unrelated disorders, nothing in these claims can be construed as an increased rating claim for migraines, except for the aforementioned NOD. Moreover, the Veteran and his representative have also not identified any such claims. Additionally, the Board notes that the earliest date in which evidence was factually ascertainable warranting an increase for his migraine disability was in September 2015, the date of his DBQ for migraines. Therefore, the earliest effective date available to the Veteran is May 5, 2014, the date of his informal claim. There is simply no document of record that can be construed as an informal or formal claim for an increased rating for migraines prior to the receipt of the May 2014 informal claim. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to May 5, 2014 for the award of a 30 percent rating for migraines. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for asthma? A review of the record shows that the Veteran’s claim of service connection for asthma was previously denied in a March 2009 rating decision for lack of a current disability. The Veteran has filed a claim to reopen his claim of service connection for asthma, to include as due to environmental hazards in Southwest Asia. In a January 2016 VA examination, the examiner found that the Veteran’s condition was not caused by or related to Gulf War environmental exposure, nor was it caused by service. In so finding, the examiner noted that the Veteran uses an inhalational bronchodilator intermittently, but found no wheezing during the examination, and that December 2015 pulmonary function tests were normal. As a result, the examiner concluded that the Veteran did not have a diagnosed respiratory condition. However, in his medical opinion with regard to a nexus, the examiner found that the Veteran has hyperactive airway secondary to community allergens, and further found that the Veteran has a claimed disability pattern related to wheezing with a clear etiology and diagnosis. After reviewing the examination and opinion, the Board finds the opinion inadequate as it is internally inconsistent. The Board cannot determine whether new and material evidence exists as there is no clear indication as to whether the Veteran has a current disability. The examiner seems to suggest that the Veteran has some type of respiratory condition; however, the finding or absence of a current disability is not clearly articulated in the examination. In light of these facts, a new examination and medical opinion is warranted to clarify whether the Veteran has a diagnosed respiratory disability. The Board notes that although the Veteran’s initial claim is for asthma, any respiratory condition diagnosed during the appeal period should be considered in the determination of a nexus to service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 2. Entitlement to service connection for GERD and gastroenteritis? As noted above, the Veteran’s claims of service connection for GERD and gastroenteritis have been reopened based upon the receipt of new and material evidence. The Veteran’s STRs show numerous diagnoses of gastroenteritis, in addition to, gastritis, and esophagitis chronic reflux. Post-service records show a diagnosis of GERD and hiatal hernia. In his January 2016 VA examination, the examiner diagnosed the Veteran with Schatzki ring with moderate hiatal hernia and found that the condition was not caused by or related to Gulf War environmental exposure, nor was it caused by service. However, the Board finds this opinion also inadequate for adjudicating the Veteran’s claims. In so finding, the Board initially notes that when finding a negative nexus to service, the examiner specifically noted that the Veteran’s condition was not caused by his gastric treatment documented in 2006-2007. However, the Veteran’s STRs clearly show diagnoses and treatment for gastritis and gastroenteritis as early as 2000 and 2001. Additionally, although the Veteran has been diagnosed with GERD during the appeal period, the examiner merely offered an opinion as to the Veteran’s hiatal hernia. The Board notes that the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, although the examiner may not have found any evidence of GERD during the examination, any related gastrointestinal disorder diagnosed during the appeal period should have been considered in the rendered opinion. Further, the Veteran’s STRs show that the Veteran had a spastic colonoscopy and EGG for reflux, prior to entering service. This evidence suggests a possible pre-existing gastrointestinal condition in which an opinion on aggravation would be warranted. Given the above, the Board finds a remand is warranted to obtain a new examination and medical opinion that considers the Veteran’s complete medical history and all gastrointestinal conditions diagnosed during the appeal period. Moreover, a determination should be made as to whether the Veteran’s gastrointestinal condition is pre-existing. 3. Entitlement to a rating greater than 30 percent for adjustment disorder with depressed mood, and PTSD. Concerning the Veteran’s claim for an increased rating for his psychiatric disorders, a review of the evidence suggests that the Veteran may have outstanding medical treatment records relevant to the adjudication of his claim. The Veteran has made reference to receiving treatment from private physicians on several occasions; however, these records are absent from the record. The Board notes that in a July 2015 primary care note, the Veteran presented to the Mobile OPC to establish care where he reported a long-term diagnosis of anxiety disorder/depressive disorder. He further reported that after changing insurance, the civilian doctor that prescribed his Zoloft stopped seeing him. Additionally, in his December 2015 VA examination for PTSD, the Veteran reported being first seen by the Birmingham VA for mental health problems in 2010. He reported being told that he had an adjustment disorder and that “they were not helpful to me,” so he began seeing private doctors in Jasper, Alabama, and Fairhope. Notably, the record is absent of any treatment records, VA or private, from approximately May 2012 through February 2015. Although there is record of private medical treatment from February 2012 showing a prescription for Zoloft, there are no associated treatment records from the physician for a psychiatric condition. As the Veteran appears to have outstanding VA and/or private treatment records relevant to his claim, VA has a duty to assist the Veteran in obtaining these records. Consequently, a remand is warranted. While on remand, a new examination and opinion should be obtained. The Board notes that the Veteran was initially service-connected for adjustment disorder with depression in March 2009, while PTSD was subsequently service-connected and included in his evaluation in October 2013. The evidence shows that the Veteran’s adjustment disorder was shown to be in remission in a 2008 VA examination, and the manifestations of the Veteran’s adjustment disorder and PTSD appear to have arose under different circumstances. Subsequent diagnoses include anxiety and depression NOS, which appear to be symptoms of both adjustment disorder and PTSD. As there has not been clarification as to whether the Veteran’s psychiatric disorders exhibit symptoms that are distinguishable or overlapping, a retrospective medical opinion is warranted to determine the nature and severity of the Veteran’s psychiatric disorders throughout the entire appeal period. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Ask the Veteran to identify any private treatment related to his psychiatric disability. The AOJ should undertake appropriate development to obtain any outstanding private treatment records. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for a VA examination to determine the etiology of his asthma condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. A thorough explanation for any opinion must be provided. Based on an examination of the Veteran and a review of the record, the examiner should first: a) Determine whether the Veteran has a respiratory condition, to include asthma. b) If the Veteran has a respiratory condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s identified respiratory condition was incurred in, related to, or otherwise caused service. 4. Schedule the Veteran for a VA examination to determine the etiology of any current gastrointestinal disorders, to include GERD, gastroenteritis, and hiatal hernia. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on an examination of the Veteran and a review of the record, the examiner should first identify all gastrointestinal disorders present during the pendency of the claim. The examiner should note the earliest manifestations of each identified gastrointestinal condition and provide an opinion as to the following: a) Is there clear and unmistakable evidence that any identified gastrointestinal disorder pre-existed service? b) IF THE CONDITION PRE-EXISTED SERVICE, is there clear and unmistakable evidence that the condition was NOT aggravated by his active service? c) IF THE CONDITION DID NOT PRE-EXIST SERVICE, is it at least as likely as not (a 50% or greater probability) that the Veteran’s identified post-service gastrointestinal disorder(s) was caused by, incurred in, or otherwise related to service. d) If there is no identifiable gastrointestinal disorder, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran’s gastrointestinal symptoms are attributable to his service in the Persian Gulf and exposures there in, and/or if they constitute a medically unexplained chronic multi-symptom illness. 5. Schedule the Veteran for a retrospective examination addressing the nature and severity of the Veteran’s psychiatric disorders over the entire claim period. The claims file must be reviewed including prior examinations and any psychological treatment over the claim period. The examiner should identify all psychological disorders diagnosed and state whether the symptoms of such disorders can be clearly separated from the symptoms of his service-connected adjustment disorder with depressed mood, and PTSD. If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. The examiner should also identify the nature, frequency, and severity of all past and current manifestations of the Veteran’s PTSD and specify the degree of occupational or social impairment. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion. 6. After the development requested has been completed, the AOJ should review any examination reports or opinions to ensure that they are in complete compliance with the directives of this REMAND. 7. Then, readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel