Citation Nr: 1808760 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-33 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a rectal disorder, including hemorrhoids and an anal fistula, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a skin disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a respiratory disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD) and an adjustment disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for a sleep disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to a disability manifested by memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 8. Entitlement to service connection for bilateral gynecomastia, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May to July 1985, May to October 1989 and from December 1990 to September 1991. He served in Southwest Asia from January 11, 1991 to August 16, 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By that rating action, the RO, in part, denied service connection for the claimed disabilities on appeal. The Veteran appealed these determinations to the Board. In September 2017, the Veteran testified before the undersigned at a video conference hearing conducted via the above RO. A copy of the hearing transcript is of record. The Veteran submitted a waiver of initial RO consideration of additional evidence received into the record after the hearing. The Board has expanded claims numbered two (2) through five (5) on the title page to include all rectal, skin, respiratory, and psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, as the Veteran's representative testified at the Board hearing that the mask used to treatment the Veteran's obstructive sleep apnea had aggravated his respiratory issues (e.g., nasal and sinuses problems), the Board has recharacterized the claim for service connection for a respiratory disability, to include this secondary service connection theory of entitlement. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is required prior to further appellate consideration of the appeal. i) VCAA Notice-Secondary Service Connection As noted in the Introduction, the Veteran has maintained that the mask used to treat his obstructive sleep apnea has aggravated his respiratory issues. (T. at pg. 26). Thus, he has, in essence, raised a claim for service connection for a respiratory disability (originally claimed as allergies and sinusitis) as secondary to a sleep disability. The Veteran has not been provided VCAA notice that addresses the requirements for secondary service connection in accordance with 38 C.F.R. § 3.310 (2017) and Allen v. Brown, 7 Vet. App. 439 (1995). Thus, this should be accomplished on remand. ii) VA treatment records Regarding each of the service connection claims on appeal, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C § 5103A (2014); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Here, a VA Informed Consent Form, signed by the Veteran in June 2000, reflects that he elected to participate in a Randomized Multicenter Controlled Trial of Multi-Modal Therapy in Veterans with Gulf War Illness. However, further treatment records are not of record. Accordingly, remand is necessary to obtain these records. iii) VA examinations-erectile dysfunction, rectal disorder, to include hemorrhoids and anal fistula, skin disorder, respiratory disorder, a disorder manifested by memory loss Remand is required to obtain VA examinations in connection with the claims for service connection for erectile dysfunction; rectal disability; skin disability; respiratory disability; and, disability manifested by memory loss. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with examinations in connection with the above-cited service connection claims. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran contends that he has had decreased sexual function and sleep, skin, rectal, respiratory and memory loss problems that have existed since his return from service in Southwest Asia. He has also maintained that his skin and respiratory disabilities are the result of having been exposed to burning oil well and feces during his Gulf War service. See Veteran's Notice of Disagreement (NOD), received by VA in October 2010; 21-4138, Statement in Support of Claim of A. P., received by VA in May 2009, and September 2015 Hearing Transcript. In addition, and with respect to the Veteran's claim for service connection for a rectal disability, the Veteran, through his representative, testified that his anal fistula was related to his in-service treatment for stomach problems. The Veteran's service treatment records include a March 1990 examination report reflecting that a rectal examination revealed a negative Hemoccult. An August 1991 treatment report reflects that the Veteran had received treatment for diarrhea and stomach cramps. It was also noted that he had had loose stools. On an August 1991 Report of Medical History, the Veteran reported that he had had stomach or belly pain, nausea, diarrhea or bloody bowel movements. An August 1991 service discharge examination report reflects that the Veteran's anus and rectum were evaluated as normal. On an accompanying Report of Medical History, the Veteran denied having had any stomach, liver or intestinal problems. Post-service VA and private treatment records pertinently reflect that in April 1996, the Veteran had an infected cyst in the rectal area, and that he had undergone surgery for an anal fistula in 1998. In view of the Veteran's contention that he has had decreased sexual function and sleep, skin, rectal, respiratory and memory loss problems since he returned from Southwest Asia and that his current rectal problems are possibly related to his in-service stomach complaints, as well as evidence of in-service treatment for stomach cramps and diarrhea, the Board finds that the Veteran should be scheduled for VA examinations in connection with claims for service connection for these claimed disabilities. Mclendon, supra. iv) New examination - psychiatric disorder A new examination is required for the Veteran's claim for a psychiatric disorder to obtain an adequate examination. Although a prior examination was provided, the Veteran provided more information regarding his stressors. Thus, an new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice that addresses the requirements for the claim of entitlement to service connection for a respiratory disability (originally claimed as allergies and sinusitis) claimed as secondary to a sleep disability in accordance with 38 C.F.R. § 3.310 (2017). This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. 2. Confirm with the Veteran whether his counseling records in Huntsville were with a private physician or at a VA medical facility. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, notably any treatment records associated with the Veteran's participation in a VA Randomized Multicenter Controlled Trial of Multi-Modal Therapy in Veterans with Gulf War Illness from June 2000 to the present, and counseling records from Huntsville if applicable. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include counseling records from Huntsville if applicable. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 5. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of his erectile dysfunction. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's erectile dysfunction, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards. 6. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of his rectal disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's rectal disorders, including hemorrhoids and an anal fistula, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards and his in-service treatment for diarrhea and cramping. See March 1990 and August 1991 service treatment records, respectively. 7. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of his skin disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's skin disorders, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards such as burning oil wells and feces. 8. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of any sleep disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's sleep disorders, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards. 9. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of his respiratory disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's respiratory disorder, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards. If and only if the Veteran is found to have a sleep disorder that is related to military service, should an appropriate specialist provide an opinion to the following question: Is it at least as likely as not (i.e., 50 percent or higher degree of probability) that any respiratory disability is proximately due to or aggravated (permanently worsened beyond the natural progress of the disorder) by his sleep disorder? The Veteran has maintained that the mask used to treat his obstructive sleep apnea irritates his nasal passages. 10. After any additional records are associated with the claims file, provide the Veteran with an examination to determine the etiology of his memory loss disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the Veteran's disability manifested by memory loss, provide an opinion regarding whether it is an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis? For each disorder that the examiner determines is either (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, the examiner must opine whether it is "at least as likely as not" (i.e., 50 percent or more probable) that each is related to service, including the assumed environmental Persian Gulf hazards. 11. After any additional records are associated with the claims file, provide the Veteran a VA examination to identify and determine the etiology of all currently diagnosed psychiatric disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must determine the current psychiatric diagnoses. Second, for each psychiatric disorder diagnosed other than PTSD, the examiner must state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including as due to conceded stressors. Third, if a diagnosis of PTSD is deemed appropriate, the examiner must comment on the link between the currently diagnosed PTSD and the Veteran's stressors including any fear of hostile military activity. The examiner must address the prior VA examination and the Veteran's Board hearing testimony. 12. Notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 13. Ensure complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 14. Readjudicate the appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).