Citation Nr: 21075044 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-35 018 DATE: December 17, 2021 ORDER New and material evidence having been received, the claimed for entitlement to service connection for headaches as due to an undiagnosed illness is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include anxiety and depression, is remanded. Entitlement to service connection for headaches as due to an undiagnosed illness is remanded. Entitlement to service connection for fatigue as due to an undiagnosed illness is remanded. Entitlement to service connection for insomnia as due to an undiagnosed illness is remanded. FINDING OF FACT Since the last, final January 2009 rating decision, evidence has been added to the record that was not previously considered by agency decisionmakers and which pertains to a previously unestablished element of the claim for service connection for headaches. CONCLUSION OF LAW The criteria for reopening the Veteran's claim for service connection for headaches have been met. 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1999 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a VA Regional Office (RO). The Board observes that service connection for chronic headaches was denied in a January 2009 rating decision, which was not appealed by the Veteran in the 12-month period after the decision. Evidence received since that rating decision includes an October 2014 VA examination and new medical treatment records. This additional evidence is relevant, new, and material; consequently, this claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Second, the Veteran asserts that he suffers from anxiety and depression as a result of his active service. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claims to include any psychiatric disorder. As emphasized in Clemons, though a Veteran may only seek service connection for a specific psychiatric disorder, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed. Accordingly, the claims for anxiety and depression have been combined and will be addressed in the section for an acquired psychiatric disorder listed below. Third, the Veteran's claims for service connection for a back disability and stomach or intestinal disability were denied in the October 2014 rating decision on appeal; however, these claims were subsequently granted in a May 2017 rating decision. Accordingly, these claims will not be considered by the Board in this decision. Finally, the Board notes that in his June 2017 Form 9, the Veteran requested a live videoconference Board hearing at a local VA office. The Veteran was scheduled for hearing in April 2021 and August 2021, but these hearings were postponed. A third hearing was scheduled for November 2021; however, the Veteran did not attend this hearing and has not provided good cause for his absence. Accordingly, the Board finds that all the Veteran's hearing requests have been addressed, and the Board may now proceed with adjudication. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition, to include anxiety and depression, is remanded. The Veteran asserts that he experiences an acquired psychiatric condition that arose during or as a result of his active service, including as secondary to his service-connected disabilities and resulting chronic pain. See June 2017 Form 9 statement. The Veteran's October 2014 VA examination for mental disorders did not address this etiological theory. Accordingly, this claim must be remanded for an additional VA examination. 2. Entitlement to service connection for headaches is remanded. The Veteran asserts that he experiences a chronic headache condition that arose during or as a result of service. During his October 2014 VA examination, the VA examiner opined that the Veteran's headaches were less likely than not due to Gulf War-related exposure and had a clear etiology; however, they did not opine as to what the etiology of the condition was. Additionally, the Veteran reported that his headaches began in 2003 after experiencing an improvised explosive device (IED) detonating. The VA examiner did not address this theory of causation. Accordingly, this claim must be remanded an addendum VA medical opinion. 3. and 4. Entitlement to service connection for fatigue and insomnia are remanded. The Veteran asserts that he experiences chronic fatigue and insomnia, including as secondary to his service-connected disabilities and the resulting chronic pain he experiences. See June 2017 Form 9 statement. The Board finds that this etiological theory was not been addressed in the October 2014 VA examination report for Gulf War conditions. Accordingly, this claim must be remanded for an additional VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with a psychiatrist or psychologist, regarding his claim of service connection for an acquired psychiatric condition. The examiner should review the file. The examiner should also discuss the Veteran's service and medical history, and current complaints and symptoms, with the Veteran and document his assertions in the examination report. All opinions must be supported by a rationale. (a) The examiner should identify the Veteran's current psychiatric disorder(s), including whether he meets the criteria for a diagnosable depression or anxiety-related disorder. If claimed condition is not diagnosed, it should be explained why this is so. (b) For each identified psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder began during active duty or is related to any incident/event of active duty, including wartime activity. (c) The examiner should also address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition was caused or aggravated (worsened beyond its natural progression) by the Veteran's service-connected disabilities and any chronic pain associated with those conditions. A complete rationale should be provided for all opinions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. Obtain an addendum VA medical opinion from the examiner who conducted the October 2014 VA examination for headaches, or from another appropriate examiner, regarding his claim for service connection for chronic headaches. The examiner should review the file. The examiner should also discuss the Veteran's service and medical history, and current complaints and symptoms, with the Veteran and document his assertions in the examination report. All opinions must be supported by a rationale. (a) The examiner should opine as to whether the Veteran meets the criteria for a headache condition. If no condition is diagnosed, it should be explained why this is so. (b) For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder began during active duty or is related to any incident/event of active duty, including due to the IED explosion the Veteran reported in the October 2014 VA examination. A complete rationale should be provided for all opinions. 3. Schedule the Veteran for a VA examination, with an appropriate examiner, regarding his claims for service connection for chronic fatigue and insomnia. The examiner should review the file. The examiner should also discuss the Veteran's military and medical history, and current complaints and symptoms, with the Veteran and document his assertions in the examination report. All opinions must be supported by a rationale. (a) The examiner should opine as to whether the Veteran meets the criteria for a diagnosable fatigue or insomnia related disorder. If claimed condition is not diagnosed, it should be explained why this is so. (b) For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder began during active duty or is related to any incident/event of active duty, including wartime activity. (c) The examiner should also address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition was caused or aggravated (worsened beyond its natural progression) by the Veteran's service-connected disabilities and any chronic pain associated with those conditions. A complete rationale should be provided for all opinions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.