Citation Nr: 21067474 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-36 368A DATE: November 4, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for asthma is reopened. As new and material evidence has been received, the claim of entitlement to service connection for a sleep disorder is reopened. REMANDED Entitlement to service connection for asthma, to include as due to exposure to particulate matter, is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a disability manifested by gastrointestinal symptoms, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. FINDINGS OF FACT 1. In a September 2007 VA rating decision, the claims of service connection for asthma and insomnia were denied; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year thereafter. 2. In an April 2015 VA rating decision, the claim to reopen service connection for asthma was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely NOD or submit new and material evidence within a year thereafter. 3. The evidence received since the April 2015 VA rating decision, regarding service connection for asthma, is not cumulative or redundant and raises the possibility of substantiating the claim. 4. The evidence received since the September 2007 VA rating decision, regarding service connection for a sleep disorder, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2007 and April 2015 VA rating decisions, regarding service connection for asthma, are final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 2. New and material evidence has been received since the April 2015 VA rating decision to reopen service connection for asthma. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.317(e)(2), 3.320 (2020). 3. The September 2007 VA rating decision, regarding service connection for insomnia, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 4. New and material evidence has been received since the September 2007 VA rating decision to reopen service connection for a sleep disorder. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1988 to November 1988 and November 1990 to June 1991. The Veteran requested a video conference hearing before the Board and was scheduled for August 9, 2021 and August 25, 2021. The Veteran's request to withdraw his hearing request was received on August 3, 2021. Before reaching the merits of the claims for asthma and a sleep disorder, the Board must first determine whether new and material evidence has been received to reopen the previously denied claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized these issues accordingly. 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for asthma In January 1995, the Veteran submitted lay statements that addressed, in part, his diagnosis and use of medication for asthma since service and submitted VA Form 21-4142 (Authorization and Consent to Release Information to VA) identifying private treatment providers for asthma. In response to an August 1997 notice letter requesting the Veteran clarify his claim for an unspecified disability due to tobacco, the Veteran noted in a September 1997 VA Form 21-4138 (Statement in Support of Claim) that "[t]his addiction to nicotine almost caused me my life." In the November 1997 VA rating decision, the agency of original jurisdiction (AOJ) characterized and denied the issue of service connection for nicotine dependence because there was no evidence to show the Veteran was nicotine dependent and that he had a chronic disability resulting from any such dependence thus it was not a well-grounded claim. The Veteran was notified of this decision in a December 1997 notice letter. In August 2005, VA received the Veteran's informal request for service connection for asthma. In the September 2007 VA rating decision, service connection for asthma was denied because, in the absence of available service department records (except for DD Form 214), the evidence of record did not show the Veteran was treated or diagnosed with asthma in service or was exposed to toxic materials in the Gulf War. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the September 2007 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. In January 2010 the Veteran submitted a duplicate lay statement regarding asthma, and a July 2010 VA Form 21-0820 (Report of General Information) documents the Veteran's request to include asthma among his list of claims on appeal. In the September 2010 VA rating decision, the claim to reopen service connection for asthma was denied because while the evidence of record showed treatment for asthma, it did not show a link to his military service. The Veteran was notified of the September 2010 VA rating decision and of his appellate rights but did not appeal by filing a NOD. Nevertheless, within one year, he submitted additional private treatment records in December 2010 and May 2011, a VA Form 21-4138 requesting service connection for asthma in June 2011, and a lay statement in July 2011 regarding in-service occurrences related to asthma. In the July 2013 VA rating decision, the claim to reopen service connection for asthma remained denied. The Veteran was notified of the July 2013 VA rating decision and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. While additional service personnel records were associated with the record in June 2014, these official service department records are not relevant to the merits of why service connection for asthma was last denied in the September 2007 VA rating decision. See 38 C.F.R. § 3.156(c) (2020). Therefore, the July 2013 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. In November 2014, VA received the Veteran's informal request to reopen service connection for asthma. In the April 2015 VA rating decision, the claim to reopen service connection for asthma was denied because the new medical evidence of record from the DeBakey VA Medical Center (VAMC) was not relevant to show an in-service occurrence or a link between the medical condition and military service. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the April 2015 VA rating decision is final. Id. On September 16, 2016, the Veteran's formal request to reopen his claim for asthma was obtained and associated with the record. Evidence received since the April 2015 VA rating decision includes an addition to VA regulations that provides service connection on a presumptive basis for a list of specified disorders, to include asthma, that manifested within 10 years from the date of separation from service in the Southwest Asia theater of operations during the Persian Gulf War due to presumed exposure to particulate matter during such period of service. See 38 C.F.R. § 3.320. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)]," any evidence supporting a new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this regulation is new and material to the element of establishing a nexus on a presumptive basis due to exposure to particulate matter, which was not established at the time of the April 2015 VA rating decision. As a result, this claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.320. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for insomnia In the September 2007 VA rating decision, service connection for insomnia was denied because there was no evidence of this diagnosed condition. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the September 2007 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. While additional service personnel records were associated with the record in June 2014, these official service department records are not relevant to the merits of why service connection for insomnia was last denied in the September 2007 VA rating decision. See 38 C.F.R. § 3.156(c). On January 20, 2017, the Veteran's formal request for service connection for sleep apnea was obtained and associated with the record. This claim is based upon the same factual basis and symptoms as his original claim for insomnia, which the AOJ denied on the merits in the September 2007 VA rating decision. As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The Board has also recharacterized the Veteran's claim more broadly to a sleep disorder in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Evidence received since the September 2007 VA rating decision includes a September 2021 correspondence from the Veteran asserting that his sleep disorder to linked to his service-connected PTSD and a March 2017 VA treatment record that shows a diagnosis of obstructive sleep apnea. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)]," any evidence supporting a new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this evidence is new and material to the elements of establishing a nexus on a secondary basis and a current disability on direct and secondary bases, which was not established at the time of the September 2007 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for asthma, to include as due to exposure to particulate matter The Veteran served in the Southwest Asia theater of operations from January 1991 to May 1991 during the Persian Gulf War and is presumed to have been exposed to fine particulate matter during such service. See 38 U.S.C. § 101(33); 38 C.F.R. §§ 3.317(e)(2), 3.320(a)(3). If a veteran was exposed to particulate matter during active service, a specific list of diseases, to include asthma, shall be service connected if manifests within 10 years from the date of separation from military service that includes the qualifying period of service in the Southwest Asia theater of operations or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War. See 38 C.F.R. § 3.320(a). However, the presumption is rebutted if there is affirmative evidence that the disease was not incurred or aggravated by the qualifying period of service or was caused by a supervening condition or event or was the result of willful misconduct. See 38 C.F.R. § 3.320(b). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1110, 1131 (2012). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1) (2020); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153 (2012); see Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Review of the May 1988 entrance examination report revealed clinical evaluation of the respiratory system was normal; therefore, the presumption of soundness attached. An August 2007 VA memorandum documents a formal finding on the unavailability of any outstanding service treatment records. Since separation from service, review of the evidentiary record demonstrates the Veteran a post-service diagnosis of asthma within 10 years from the date of separation from military service that includes the qualifying period of service in the Southwest Asia theater of operations, as shown in private treatment records dated in 1997. See 38 C.F.R. § 3.320. Nevertheless, review of these private treatment records also shows notations of "history of asthma diagnosed 25 years ago" and "lifelong asthmatic" dated in July 1997. As such, the Board finds that additional development is needed to determine the etiology of the Veteran's asthma. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.303, 3.304(b)(1); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD As discussed above, in a September 2021 correspondence from the Veteran asserting that his sleep disorder to linked to his service-connected PTSD and a March 2017 VA treatment record that shows a diagnosis of obstructive sleep apnea. Review of the record also shows that the issue of service connection for PTSD was granted in a May 2011 VA rating decision. As such, the Board finds that additional development is needed to determine the etiology of the Veteran's current sleep disorder. 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2020); McLendon, 20 Vet. App. at 79. 3. Entitlement to service connection for a disability manifested by gastrointestinal symptoms, to include as due to an undiagnosed illness In the September 2016 VA Form 21-526EZ, the Veteran requested service connection, in part, for undiagnosed illnesses and gastrointestinal disorders. In the December 2016 VA rating decision, the AOJ characterized the claim as service connection for gastrointestinal disorders (also claimed as undiagnosed illness) and denied it on the merits. The Veteran was notified of this decision in a January 2017 notice letter and, within one year, submitted a timely NOD in September 2017 specifically listing "undiagnosed Gulf War syndrome" as the issue of disagreement. Review of the record does not show the AOJ has issued a statement of the case (SOC) for this issue nor is there any indication of record that additional development has been completed pursuant to this issue regarding an undiagnosed illness. As such, the issue of entitlement to service connection for a disability manifested by gastrointestinal symptoms, to include as due to an undiagnosed illness, is remanded for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). 4. Entitlement to service connection for fibromyalgia 5. Entitlement to service connection for chronic fatigue syndrome Since separation from service in June 1991, the Veteran was afforded VA Gulf War general medical examinations in July 2013 and November 2016 at which the Veteran's reported symptomology only reflects the respiratory system. In November 2016, the Veteran was also afforded VA examinations for fibromyalgia and chronic fatigue syndrome and a VA medical opinion for these claimed disorders. The VA examiner concluded, in part, that the Veteran's reported symptomatology does not meet diagnostic criteria for fibromyalgia and chronic fatigue syndrome, reported low back pain with bending is not indicative of fibromyalgia but rather mechanical in nature, and reported fatigue is directly related to lack of sleep and not chronic fatigue syndrome. Nevertheless, the VA examiner failed to address whether the Veteran's reported symptomatology is due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. In light of the Veteran's reported symptoms since separation and description of functional impairment during the appeal period, an addendum opinion is needed to determine the existence and etiology of a disability manifested by low back pain with bending or by restlessness, need to take breaks, and sleep problems pursuant to his service in the Southwest Asia theater of operations from January 1991 to May 1991. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Issue a SOC addressing the issue of entitlement to service connection for a disability manifested by gastrointestinal symptoms, to include as due to an undiagnosed illness. A timely perfected appeal must be filed to vest the Board with appellate jurisdiction over the claim. Otherwise the appeal may be closed by the AOJ. 2. Then, provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's asthma. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: (a.) Whether the Veteran's asthma clearly and unmistakably existed prior to his entry into active military service in May 1988 or November 1990. (b.) If asthma is found to have clearly and unmistakably existed prior to service, whether it is also clear and unmistakable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease. Note - An August 2007 VA memorandum documents a formal finding on the unavailability of any outstanding service treatment records, except for the May 1988 entrance examination report. Note - The examiner is advised that the evidentiary standard for whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim sleep disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea (diagnosed in March 2017 VA treatment record, even in since resolved) began during active service or is related to an incident of service. (b.) Whether it is at least as likely as not that the Veteran's sleep apnea was proximately due to or the result of his service-connected PTSD. (c.) Whether it is at least as likely as not that the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected PTSD. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claims for fibromyalgia and chronic fatigue syndrome. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current symptomatology for low back pain with bending is due to (i) an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, or (ii) otherwise due to his active military service. (b.) Whether it is at least as likely as not that the Veteran's current symptomatology for restlessness, need to take breaks, and sleep problems is due to (i) an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, (ii) a manifestation of his service-connected PTSD, (iii) a manifestation of his diagnosed obstructive sleep apnea disorder, or (iv) otherwise due to his active military service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. (Continued on the next page) 6. Then, readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.