Citation Nr: 19190514 Decision Date: 12/03/19 Archive Date: 12/02/19 DOCKET NO. 18-42 191 DATE: December 3, 2019 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a disability manifested by headaches is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a disability manifested by dizziness and disorientation is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a disability manifested by muscle fatigue and pains is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a disability manifested by diarrhea is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a psychiatric disorder is granted. REMANDED A rating in excess of 10 percent for the service-connected chronic obstructive pulmonary disease (COPD) is remanded. Service connection for a disability manifested by diarrhea, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. Service connection for a disability manifested by headaches, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. Service connection for a disability manifested by dizziness with disorientation, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. Service connection for a disability manifested by muscle pain with fatigue, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. Service connection for a disability manifested by joint pain, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. Service connection for a psychiatric disorder manifested by symptoms including anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, panic attacks with guilt and rage, hallucinations and paranoid ideations, and neurosis, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded. FINDINGS OF FACT 1. An unappealed June 2009 rating decision denied service connection for psychiatric disorder (also claimed as anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, difficulty falling asleep, and panic attacks) and for a viral syndrome (also claims as Gulf War Syndrome to include symptoms of headaches, dizziness, disorientation, muscle fatigue and pain, and diarrhea), and new and material evidence was not received within one year of the decision. 2. The evidence associated with the file since the June 2009 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claims for service connection for disabilities manifested by headaches; dizziness and disorientation; muscle fatigue and pains; and diarrhea, and for a psychiatric disorder manifested by symptoms including anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, and panic attacks with guilt and rage. CONCLUSIONS OF LAW 1. The June 2009 rating decision that denied service connection for a psychiatric disorder (also claimed as anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, difficulty falling asleep, and panic attacks) and for a viral syndrome (also claims as Gulf War Syndrome to include symptoms of headaches, dizziness, disorientation, muscle fatigue and pain, weakness, and diarrhea) is final. 38 U.S.C. § 7105 (2008); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. The evidence received since the June 2009 rating decision is new and material evidence and serves to reopen the Veteran’s claims for disabilities manifested by symptoms of anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, difficulty falling asleep, panic attacks, headaches, dizziness, disorientation, muscle fatigue and pain, weakness, and diarrhea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1988 to December 1993, to include service in the Southwest Asia Theater of Operations during the Persian Gulf War. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2009 rating decision, the RO denied service connection for a mental condition (also claimed as anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, difficulty falling asleep, and panic attacks) and for a viral syndrome (also claims as Gulf War Syndrome to include symptoms of headaches, dizziness, disorientation, muscle fatigue and pain, and diarrhea), as there was no evidence of current disabilities manifested by these symptoms which could be linked to the Veteran’s active service. The Veteran did not perfect an appeal on these adverse determinations, nor did he submit any additional evidence within a year following the decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the June 2009 rating decision became final as to these issues, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the June 2009 rating decision includes June 2016 VA examinations addressing all of these symptoms. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims for service connection. Thus, the claims for service connection for disabilities manifested by headaches; dizziness and disorientation; muscle fatigue and pains; and diarrhea; and for a psychiatric disorder manifested by symptoms including anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, and panic attacks with guilt and rage are reopened. REASONS FOR REMAND VA did not make attempts to obtain the Veteran’s current treatment records. The record reflects he has been incarcerated since 2005, but the last time his correction facility medical treatment records were obtained was in 2008, prior to the current appeal period. Because there are no current VA treatment records, and these are likely the only medical records which exist for these conditions during the appeal period, these records could contain information which could help substantiate his claims. Thus, VA should attempt to obtain them. A rating in excess of 10 percent for the service-connected COPD Service connection for conditions manifested by symptoms of diarrhea, headaches, dizziness with disorientation, muscle pain with fatigue, joint pain, and psychiatric symptoms (including anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, panic attacks with guilt and rage, hallucinations, paranoid ideations, and neurosis), to include as undiagnosed illness(es) from service in Southwest Asia during the Persian Gulf War The Veteran was afforded a VA respiratory conditions examination in June 2016. The examiner stated that he was unable to perform the necessary testing (i.e., pulmonary function testing (PFT)) needed to rate properly the Veteran’s COPD under the applicable Diagnostic Code (6604) because the Veteran was incarcerated. However, he also noted three possible options for obtaining such testing. Although the examiner expressed doubt as to whether the three options were viable, VA should have made further efforts to have the examination completed. The Court has long held that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 191. Moreover, the Court has cautioned “those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement.” Id. To that effect, under VA guidelines, VA Manual M21-1, Part III, Subpart iv, Chapter 3, Section F, paragraph 2(d) provides guidelines for the duty to assist incarcerated Veterans entitled to VA compensation examinations. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. [VA Manual M21-1 reflects the policy of the Veterans Benefit Administration (VBA), and not the policy of the VA Secretary, given that VBA and the Secretary are separate entities within VA and that M21 provisions do not go through the regular rulemaking procedures. Unlike a regulation, the VA Secretary has no say in what goes into the Manual.] The Manual provides that, when examination of an incarcerated Veteran is required, the RO, VBA contract examination provider, and/or local Veterans Health Administration (VHA) Medical Examination Coordinator must confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel, or examined at the prison by VBA contract examination providers VHA personnel, or fee-basis providers contracted by VHA. Id. Further, because some State laws restrict the movement of and access to prison inmates, the above options may not be possible. In such cases, documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder. Id. ROs must include the following information, to the extent that it is known, in examination requests for incarcerated Veterans: name of the correctional facility; location of the correctional facility; circumstances of confinement (e.g. nature/type of conviction, level of institutional security, etc.); and whether the Veteran is considered violent. Id. ROs must document all efforts made to schedule an examination, including identifying and requesting the assistance of the appropriate prison officials. VHA compensation clinics and VBA contract examination vendors are required to provide documentation that they have made substantial attempts to schedule and conduct the examination, and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. Id. In this case, there is no record of the RO documenting further efforts made to schedule the examination with PFT testing. As such, the RO should comply with the above guidelines and re-attempt to have the Veteran’s complete VA respiratory conditions examination with all necessary testing, including PFT testing, completed. The Veteran was afforded VA examinations for all of these symptoms/conditions in 2016. However, all examinations were incomplete, either as they lacked nexus opinions regarding the etiology of diagnosed conditions, or they failed to consider conditions/symptoms which existed during the appeal period but had since resolved as being current. Further, the VA Gulf War examination did not address all applicable legal criteria for service connection and did not provide sufficient rationale for the very general negative nexus opinion rendered. As such, the Veteran should be afforded all new examinations to address the etiology of the claimed symptoms/conditions. The matters are REMANDED for the following action: 1. Request the Veteran identify periods and locations of incarceration(s) and submit the necessary authorization for release of medical records from the proper medical treatment providers for the incarceration facilities. Contact the appropriate records repositories to obtain the Veteran’s incarceration medical treatment records. Any records obtained should be added to the claims file. 2. Specifically, schedule the Veteran for an examination with appropriate testing, including PFT testing, by an appropriate clinician to determine the current severity of his service-connected COPD. The Veteran’s claims file, including a copy of this Remand, should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of this disability and report all signs and symptoms associated with this disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to his COPD and discuss the effect of the Veteran’s COPD on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the VA respiratory examination cannot be conducted with all necessary testing, including PFT testing, due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 3. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder manifested by symptoms including depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, panic attacks with guilt and rage, hallucinations, paranoid ideations, and neurosis, and to include schizophrenia. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current acquired psychiatric disorders, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. If a diagnosis of schizophrenia is rendered, the examiner should also address the following, in light of the Veteran’s statements made either on current examination or at his June 2016 VA examination that he began having visual and auditory hallucinations at the age of 16 years old: (a.) Did the Veteran’s schizophrenia clearly and unmistakably preexist the Veteran’s active service? (b.) If schizophrenia clearly and unmistakably preexisted the Veteran’s active service, was such condition permanently worsened beyond the natural progression of the disability during this period of active service? The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA mental disorders examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 4. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any current headache disorder he may have. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current headache conditions, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA headache disorders examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 5. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any current intestinal disorder manifested by symptoms of diarrhea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current intestinal conditions, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA intestinal disorders examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d 6. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current disorder manifested by symptoms of muscle pain and fatigue. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current conditions manifested by muscle pain and fatigue, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 7. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current disorder manifested by symptoms of joint pain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current conditions manifested by joint pain, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 8. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any current disorder manifested by symptoms of dizziness with disorientation. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder, including a copy of this Remand, should be reviewed by the examiner, who should acknowledge such review in the examination report. The examiner should identify all current conditions manifested by dizziness with disorientation, including any which existed during the appeal period but may have since resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such disorder manifested in, or is otherwise related to, the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. 9. For any of the claimed diarrhea, headaches, dizziness with disorientation, muscle pain with fatigue, joint pain, anxiety, depression, impaired memory, impaired reasoning, impaired concentration, impaired ability to pay attention, sleep disturbances, difficulty falling asleep, panic attacks with guilt and rage, hallucinations, paranoid ideations, and neurosis conditions that are not the result of a diagnosed disability, schedule the Veteran for a Gulf War examination to determine the nature and etiology of the claimed symptoms. The claims file should be made available to the examiner. The examiner is asked to opine as to the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that any such symptoms not associated with a diagnosed disability is medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders? A medically unexplained chronic multisymptom illness may include signs or symptoms such as fatigue, skin signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, upper or lower respiratory systems signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, and abnormal weight loss. (b.) Also for any such symptoms not associated with a diagnosed disability, is it at least as likely as not (a 50 percent or greater probability) that such symptoms are a qualifying chronic disability or an undiagnosed illness? Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. If the VA Gulf War examination cannot be conducted with all necessary testing due to the Veteran’s incarceration, the RO should provide documentation of its attempts to obtain the examination and appropriate testing, including any coordinating efforts with prison medical staff in accordance with applicable VA protocols. See Adjudication Procedure Manual, M21-1, III.iv.3.F.2.d. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.