Citation Nr: 19185003 Decision Date: 11/12/19 Archive Date: 11/12/19 DOCKET NO. 17-01 204 DATE: November 12, 2019 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for diverticulosis is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1996 to November 1999, which included a verified period of service in Kuwait. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and August 2014 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at an August 2019 videoconference hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. Although the Board regrets the additional delay, all claims on appeal must be remanded for additional evidentiary development. The Veteran’s electronic claims file does not contain a complete copy of the Veteran’s service treatment records. Although the October 2013 rating decision states service treatment records were reviewed, notations from the RO dated in February and March 2016 indicate that the RO was having difficulty locating the Veteran’s service treatment records. In March 2016, the RO mailed the Veteran correspondence asking that he submit any service treatment records in his possession. While the Veteran responded with a copy of duplicative service personnel records, no service treatment records were submitted. See 03/23/2016 Submission. Upon remand, the Board requests that the RO undertake a final effort to locate the Veteran’s missing service treatment records. If the records remain unobtainable, or additional efforts to locate them would be futile, the Veteran and his attorney must be notified in accordance with 38 C.F.R. § 3.159(e). Bilateral Knee Claims The Veteran’s claims seeking entitlement to service connection for left and right knee disabilities were first denied in a July 2002 rating decision. The Veteran did not file a notice of disagreement or new and material evidence within the one-year period following mailing of the July 2002 rating decision. 38 C.F.R. §§ 3.156(b), 19.21, 19.52. Consequently, the rating decision became final. 38 C.F.R. § 20.1103. In August 2007, the Veteran filed a petition to reopen entitlement to service connection for left and right knee disabilities. This request was denied in an April 2008 rating decision. The Veteran did not file a notice of disagreement or new and material evidence within the one-year period following mailing of the April 2008 rating decision. 38 C.F.R. §§ 3.156(b), 19.21, 19.52. Consequently, the rating decision became final. 38 C.F.R. § 20.1103. Despite these prior final decisions, the general rule under 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) allows these claims to be reopened in the event that new and material evidence is presented. However, an exception to this general rule arises if VA receives or associates with the electronic claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim. Under such circumstances, new and material evidence is not needed to reopen a previously denied claim, and instead, the claim is simply reconsidered and reviewed on a de novo basis. 38 C.F.R. § 3.156(c). In August 2014, the RO obtained new service personnel records, that were previously unavailable, but in existence at the time of the July 2002 and April 2008 rating decisions. Unfortunately, these records generally described the Veteran’s dates of service, and did not contain any information relevant to the Veteran’s claims seeking entitlement to service connection for left and right knee disabilities that was not already known at the time of the initial July 2002 rating decision. These records were silent for any information regarding the Veteran’s alleged service in Kuwait during his period of active duty, discussed infra. While these official service department records were new, they were not relevant to the claims on appeal; therefore, the reconsideration exception found in 38 C.F.R. § 3.156(c) does not apply to this circumstance. At the time of the July 2002 and April 2008 rating decisions, the Veteran was denied entitlement to service connection for left and right knee disabilities, in part, because the evidence failed to establish the presence of a clinically significant diagnosis. At the August 2015 Decision Review Officer (DRO) hearing, the Veteran alleged for the first time that he served in Kuwait during his active duty service, despite his DD Form 214 showing no foreign service. This allegation raised the possibility that the Veteran’s reports of chronic left and right knee pain, unattributed to any underlying clinical diagnosis, could qualify for presumptive service connection consideration under 38 C.F.R. § 3.317, so long as the Veteran served in Kuwait during the qualifying time period. At the August 2015 DRO hearing, the Veteran testified that he served in Kuwait from January 1999 to June 1999 and submitted a photo of himself standing in front a sign that marked the Ali Al Salem air base. The Veteran also submitted a lay statement from a fellow servicemember corroborating that the Veteran was deployed to Kuwait from January to approximately June/July 1999. Thereafter, the RO engaged in evidentiary development to confirm the Veteran’s allegations of Kuwait service, and in February 2016, received correspondence from the Veterans Affairs/Department of Defense Identity Repository (VADIR) database confirming that the Veteran served in Kuwait from February 1999 to June 1999. This new and relevant information was not previously of record at the time of the final July 2002 and April 2008 rating decision, despite its existence at the time those rating decisions were rendered. Thus, a question arises as to whether the February 2016 VADIR response qualifies as an “official service department record” under 38 C.F.R. § 3.156(c), to allow for reconsideration of the claims. The VADIR database is an electronic repository of military personnel’s military history, payroll information, and their dependents’ data provided to VA by the Department of Defense’s Defense Manpower Data Center (DMDC). The VADIR database repository is used in conjunction with other applications across VA business lines to provide an electronic consolidated view of comprehensive eligibility and benefits utilization data from across VA and the Department of Defense. VA applications use the VADIR database to retrieve profile data, as well as address, military history, and information on compensation and benefits, disabilities, and dependents. 74 Fed. Reg 37093 (July 27, 2009). According to VA’s Adjudication Procedures Manual, referred to as the M21-1, “the information obtained from VADIR is considered an electronic DD Form 214, and is acceptable for verification of service.” See M21-1.III.ii.6.B.3.c. The M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules or official VA policy. Recently, in Overton v. Wilkie, 30 Vet. App. 257, 259 (2018), the United States Court of Appeals for Veterans Claims (Court) held that “when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis.” In determining whether the February 2016 VADIR correspondence can serve as a new and relevant “official service department record” sufficient to allow the claims to be reconsidered on a de novo basis versus reopened under the new and material evidence standard, the Board finds the M21-1’s determination that the information received from the VADIR database is tantamount to an electronic DD Form 214 to be dispositive. This determination is favorable to the Veteran, as it allows the claims to be reconsidered instead of reopened based on new and material evidence. This distinction has important ramifications, because if the claims are ultimately successful, the proper effective date will be October 16, 2001, the date of the Veteran’s initial claim seeking entitlement to service connection for left and right knee disabilities, instead of March 1, 2013, the date of the Veteran’s petition to reopen the previously denied claims of entitlement to service connection for left and right knee disabilities. 38 C.F.R. § 3.156(c)(3). In light of the above, the Board finds that the February 2016 VADIR response constitutes a new and relevant official service department record, and the Veteran’s claims shall be reconsidered in accordance with 38 C.F.R. § 3.156(c). Regrettably, before the Board may reconsider the claims on the merits, a remand is required for additional evidentiary development, as discussed below. The Veteran was previously afforded VA examinations to assess the nature and etiology of his claimed bilateral knee disabilities in July 2002 and February 2008. At the July 2002 VA examination, radiographs taken of both knees were normal, and the Veteran was assessed with “bilateral knee pain, likely to be strain.” Radiographs taken at the February 2008 VA examination showed no acute or significant focal bony abnormalities in either knee. The VA examiner found “no objective findings that warrant a diagnosis.” In an August 2015 private medical report, the evaluating orthopedist found that there were no specific injuries during the Veteran’s active duty service or specific physical findings to support a clinical diagnosis in either knee. In November 2016, after the Veteran’s Kuwait service had been verified, the Veteran was afforded another VA examination to determine whether the Veteran’s reported bilateral knee pain was an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI) under 38 C.F.R. § 3.317. Following an in-person evaluation, the VA examiner determined that the Veteran exhibited “a chronic disability pattern which was a disease with a clear and specific etiology and diagnosis; namely, chronic musculoligamentous strain in both knees.” Because the Veteran’s disability has been attributed by history, physical examination, and laboratory tests to a known clinical diagnosis by the February 2016 VA examiner, the presumption in 38 C.F.R. § 3.317 is not for application. See 38 C.F.R. § 3.317(a)(1)(ii). The November 2016 VA examiner acknowledged the Veteran’s lay reports that his bilateral knee pain began in service and has resulted in recurrent aches and pains, but issued a negative nexus opinion due, in part, to a lack of medical documentation showing recurrent knee problems from 1999 to the present. The Board finds this rationale problematic, as it is clear from the electronic claims file that relevant private medical treatment from this time period remains outstanding. The record affirmatively establishes that the Veteran has treated with his private primary care physician, Dr. D., since at least 2005. See 08/21/15 DRO hearing. The Veteran admitted to treating with two other physicians prior to Dr. D., but he was unable to recall their names. Id. Private chiropractic records received in December 2001 list Dr. S. as the Veteran’s primary care physician, and this may be one of the physicians the Veteran was unable to recall at his August 2015 DRO hearing. Accordingly, the Board finds that the RO should contact the Veteran and solicit his authorization for VA to obtain the complete private treatment records from Dr. D. The RO is also requested to clarify with the Veteran whether the private treatment records from Dr. S. are relevant to this appeal, and the RO is requested to provide the Veteran with a final opportunity to identify any other outstanding private treatment records pertinent to his appeal. For any providers identified, the RO should solicit the Veteran’s authorization to allow VA to obtain these records, and the RO should undertake appropriate efforts to do so. Thereafter, the Veteran should be scheduled for an updated VA examination of the bilateral knees, and the VA examiner should be requested to review any newly obtained private treatment records, and consider these records along with the Veteran’s lay reports of bilateral knee pain that originated on active duty and has remained recurrent on a continuous basis. The VA examiner should also be requested to address the Veteran’s assertion that his bilateral knee disabilities are secondary to his service-connected low back disability under the provisions of 38 C.F.R. § 3.310. Obstructive Sleep Apnea In January 2015, the Veteran submitted the private treatment records of Dr. T., which included the impression that the Veteran suffered from obstructive sleep apnea with hypersomnia and a recommendation to try continuous positive airway pressure (CPAP) therapy. As noted in in the October 2016 Statement of the Case, the record does not contain the results of a sleep study objectively confirming the presence of obstructive sleep apnea. The Veteran was questioned about whether he had undergone a sleep study at the August 2015 DRO hearing, but there appears to have been confusion regarding the difference between CPAP and a sleep study. The DRO asked whether the Veteran had undergone a sleep study, and the Veteran’s attorney responded that records for the sleep study were submitted in January 2015. The attorney was referencing the treatment records of Dr. T., but these private records do not contain the results of a sleep study, nor do they indicate that such testing was ever performed. At the August 2019 Board hearing, the Veteran testified that he had undergone two sleep studies, one in 2010 and one in October 2013; however, the results of these sleep studies have not been submitted for evidentiary review, and it is unclear from the Veteran’s testimony as to which providers conducted such testing. Upon remand, the RO is requested to contact the Veteran and clarify which private providers have performed his sleep studies and have treated his claimed obstructive sleep apnea. If authorization is provided, the RO should undertake appropriate efforts to obtain the identified treatment records. Thereafter, the Veteran should be scheduled for a VA examination to assess the nature and etiology of his claimed obstructive sleep apnea disability. [Continued on Next Page] Diverticulosis The RO has certified a claim of entitlement to service connection for irritable bowel syndrome for appellate review. However, the Board’s independent assessment of the claims file reveals conflicting opinions regarding the exact character of the Veteran’s claimed gastrointestinal disability. In November 2013, the Veteran’s primary care physician, Dr. D. referred the Veteran to a general surgeon who specialized in gastrointestinal complaints, Dr. R., for a consultation to determine the cause of the Veteran’s chronic diarrhea. Dr. R. performed a colonoscopy and noted occasional diverticula throughout the entire length of the colon, including the right colon. Dr. R. diagnosed the Veteran with diverticulosis based on the findings of this endoscopic procedure. In August 2019, the Veteran submitted a handwritten note from Dr. D. stating the Veteran had irritable bowel syndrome with diarrhea based on the Rome IV criteria, which is an entirely symptom-based assessment. The Board is tasked with weighing and assessing the probative value of competing medical opinions. Here, the Board finds that the diagnosis rendered by Dr. R. is afforded significantly more evidentiary weight than the diagnosis rendered by Dr. D., due in part, to Dr. R.’s expertise as colon surgeon, who performed the endoscopy of the Veteran’s colon. Dr. R. possesses expertise in the exact area of medicine on appeal, i.e., colorectal disorders, instead of the broader training in internal medicine held bt Dr. D. The Court has held that the Board may afford more weight to a specialist over a generalist, so long as its reasons for doing so are thoroughly explained. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007), dismissed sub nom. Cox v. Peake, 263 F. App’x 864 (Fed. Cir. 2008) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Circ. 1996)). In the present matter, the Board cannot disregard the fact that Dr. D. initially referred the Veteran to Dr. R. presumably on the basis that the Veteran needed a specialist to identify the cause of his gastrointestinal symptoms, and that such a determination was outside of Dr. D.’s proficiencies. Moreover, Dr. R.’s diagnosis was based on an objective diagnostic procedure, where as Dr. D.’s statement was based entirely on a subjective symptom-based inventory. For these reasons, the Board affords more evidentiary weight to the diagnosis assessed by Dr. D. The Board has recharacterized the issue on appeal to more accurately reflect the November 2013 diagnosis of diverticulosis issued by Dr. D. Having concluded that the Veteran is diagnosed with diverticulosis, the Board finds that this disability is not subject to presumptive service connection under 38 C.F.R. § 3.317 despite the Veteran’s service in Kuwait during a qualifying period under the regulation. The Veteran’s diverticulosis is a known clinical diagnosis confirmed by colonoscopy findings, thus it cannot qualify as an undiagnosed illness under 38 C.F.R. §§ 3.317(a)(1)(ii), (a)(2)(i)(A). The Board has also considered whether the Veteran’s diverticulosis qualifies as a MUCMI under 38 C.F.R. § 3.317(a)(2)(i)(B). While the presumptive provisions do apply to a MUCMI which is diagnosed, but “without conclusive pathophysiology or etiology,” the regulation also specifically excludes “structural gastrointestinal diseases” and goes on to define the functional gastrointestinal diseases that are contemplated by the regulation as a MUCMI which is unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease related to the gastrointestinal tract. Here, the Veteran’s diverticulosis was diagnosed based on a November 2013 colonoscopy – which is an endoscopic procedure. Therefore, the Veteran’s case fits squarely within the excluded structural gastrointestinal diseases, and is not a functional gastrointestinal disorder as the symptoms are explained by the colonoscopy findings. The Veteran’s diagnosis of diverticulosis is therefore, not, according to the explicit wording of the regulation, a MUCMI. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018) (“The Court hold that § 3.317(a)(2)(ii) provides a definition of a MUCMI and not an alternative means to § 3.317(a)(2)(i) for establishing what is a qualifying chronic disability.”). Since the Veteran’s symptoms have been medically attributed to the known clinical diagnosis of diverticulosis, rather than an undiagnosed illness or MUCMI, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998), published at 63 Fed. Reg. 56703 (October 22, 1998). However, the above analysis does not preclude the Veteran from achieving service connection on a direct basis. See e.g. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Upon remand, the RO is instructed to pursue the evidentiary development described below to assist in evaluating the Veteran’s claim under a direct causation theory of entitlement. The Veteran has never been provided a VA examination for this claim, despite the presence of a current disability and lay statements placing the onset of the Veteran’s diarrhea and other gastrointestinal complaints right before exit from active duty service. See 08/21/15 DRO hearing; 08/05/19 Board hearing; see also McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the above, on remand the Veteran should be scheduled for a VA examination to assess whether his diverticulosis was incurred in or is otherwise etiologically related to his active duty service. Lastly, the Board requests that the electronic claims file be updated with all VA treatment records from February 2014 to the present. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s missing service treatment records. If the requested service treatment records are unavailable, or if further efforts to obtain them would be futile, issue a formal finding of unavailability, and notify the Veteran and his attorney of their right to submit any records that the Veteran may have in his possession, as provided by 38 C.F.R. § 3.159(e). 2. Obtain the Veteran’s VA treatment records for the period from February 2014 to the present. 3. Contact the Veteran and confirm whether Dr. S. is one of the primary care providers who treated the Veteran’s left and right knee disabilities. Also request that the Veteran identify all private health providers who conducted any sleep studies and/or provided treatment for his claimed obstructive sleep apnea disability. Request that he identify any other outstanding private treatment records relevant to the claims on appeal. Then request that the Veteran provide the necessary authorizations for VA to obtain any private treatment records identified in response to the above, as well as the private treatment records for Dr. D. If the requisite authorizations are provided, the RO should undertake appropriate efforts to obtain the medical records. If any of the records are unobtainable, advise the Veteran and his attorney of that fact and provide them a reasonable amount of time to obtain the records on their own, as provided by 38 C.F.R. § 3.159(e). 4. DO NOT proceed to the following directives until efforts to obtain the evidence identified above have been exhausted. 5. Then schedule the Veteran for a VA examination to assess the nature and etiology of his left and right knee disabilities. Following a complete review of the electronic claims file, the examiner is requested to answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s chronic musculoligamentous strain in both knees was incurred in or otherwise etiologically related to his active duty service, to include his duties as a parachutist (30 to 40 jumps without any direct knee trauma), running, and road marching? The examiner must consider and discuss the Veteran’s lay reports of experiencing onset of left and right knee pain during active duty service with recurrent aches and pains since exit from active duty service. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s chronic musculoligamentous strain in both knees is proximately due to, the result of, or aggravated by the Veteran’s service-connected low back disability? Please note: a recent precedential decision by the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase, regardless of its permanence.” See id. 6. Also schedule the Veteran for a VA examination to assess the nature and etiology of his claimed obstructive sleep apnea disability. Following a complete review of the electronic claims file, the examiner is requested to answer the following: (a.) Has the Veteran been diagnosed with objectively-confirmed obstructive sleep apnea? (b.) If so, is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was incurred in or otherwise etiologically related to his active duty service? The examiner must consider and discuss the lay reports of record which indicate that the Veteran snored loudly during and immediately after active duty service and continued snoring for many years thereafter, and experienced chronic daytime fatigue during active duty service. 7. Also schedule the Veteran for a VA examination to assess the nature and etiology of his diverticulosis. Following a complete review of the electronic claims file, the examiner is requested to answer the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diverticulosis was incurred in or otherwise etiologically related to his active duty service? The examiner must consider and discuss the Veteran’s lay reports of experiencing diarrhea and other gastrointestinal complaints right before exit from active duty service which have continued to the present. 8. The RO is requested to ensure that all medical opinions issued by the VA examiners conducting the above-ordered VA examinations are accompanied by complete rationales based on each examiner’s clinical experience, medical expertise, established medical principles, and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.