Citation Nr: 21076646 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-60 155 DATE: December 27, 2021 ORDER Entitlement to service connection for headaches has been withdrawn. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is granted. REMANDED In addition, the following claims for are remanded to the agency of original jurisdiction (AOJ) for further development: Entitlement to service connection for bilateral knee pain; Entitlement to service connection for generalized musculoskeletal pain; Entitlement to service connection for kidney problems; Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome (IBS); and Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. At the Veteran's July 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim for service connection for headaches. 2. The probative evidence of record demonstrates that the Veteran's acquired psychiatric disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for headaches by the Veteran have been met. 38 U.S.C. § 7105; § 19.55. 2. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from April 1980 to April 1983; and from November 1984 to August 1991. The Veteran appeared and testified at a hearing before the undersigned Veteran's Law Judge (VLJ) in July 2021. A transcript of the hearing is associated with the record. The Veteran also appeared and testified at a decision review officer (DRO) hearing in January 2015. That transcript is also of record. Withdrawal 1. Entitlement to service connection for headaches has been withdrawn The Board of Veterans' Appeals (Board) may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, requested to withdraw his claim for entitlement to service connection for headaches on July 6, 2021, at his hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. SERVICE CONNECTION 1. Service connection for an acquired psychiatric disability The Veteran contends that he has an acquired psychiatric disability that is related to the stressors he experienced during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the most probative evidence of record is the private psychological examination submitted by the Veteran. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date February 2, 2015, 11 pages. In this examination, a clinician reviewed the Veteran's treatment records and personally interviewed the Veteran. The clinician discussed the interplay between the Veteran's symptomology since service and his current symptoms. The clinician found that the Veteran had diagnoses of anxiety and depression. Further, that the Veteran experienced numerous combat stressors during service and that it was at least as likely as not that the Veteran's conditions were related to service. The Board gives the opinion great probative weight because it considered the Veteran's history of symptoms, reviewed his records, and is based on an in-person interview. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran attended a VA examination in connection with his claim in May 2014. The VA clinician assessed diagnoses of depression and alcohol use disorder. The clinician did not find that the Veteran met the diagnostic criteria for posttraumatic stress disorder (PTSD) but conceded that the Veteran was exposed to combat stressors. After an interview, the clinician stated that because the Veteran had been depressed for a year, there was no "obvious" connection between service and his depression and it was less likely than not that his depression was related to service. The Board gives this opinion less probative weight because it did not consider the Veteran's overall symptomology since service. Id. Given the above, the Board finds the criteria for service connection for an acquired psychiatric disability to be met. The Veteran has current psychological diagnoses of depression and anxiety, was exposed to combat stressors during service, and a medical opinion relates the Veteran's service to his acquired psychiatric disability. Thus, the claim for service connection for an acquired psychiatric disability is granted. There is no doubt to resolve. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent IBS is remanded. The Veteran testified about a worsening of symptoms, to include alternating diarrhea and constipation and abdominal distress. The last VA treatment records that have been associated with the file are from July 2016. The Veteran reports that he has been taking Miralax, which has helped his symptoms. Considering the relative lack of treatment for the Veteran's IBS, the Board finds the date he started taking this medication to be relevant to the increase in the Veteran's IBS symptoms. However, there is no lay or medical record that references when the Veteran's symptoms increased, to include when he started taking Miralax. Therefore, a remand for clarification from the Veteran and for updated VA treatment records is required 4. Entitlement to service connection for bilateral knee pain is remanded. 5. Entitlement to service connection for generalized musculoskeletal pain is remanded. The Veteran contends that he has widespread pain, to include knee pain, that is etiologically related to service. Specifically, he contends that he was exposed to hazardous materials during his service in Southwest Asia, to include burn pits. The Veteran was afforded a VA examination in May 2014 in connection with his claim. The examiner gave the opinion that "aching joints" and patellofemoral pain syndrome (PFPS) is not related to service because "review of medical literature does not show any evidence of an association between service in [Southwest Asia] and musculoskeletal conditions." Rather, the Veteran's pain is secondary to low vitamin D and environmental exposures do not cause low vitamin D levels. The Board finds this opinion to be inadequate because it does not sufficiently address claims associated with hazardous material exposure in Southwest Asia. Thus, a remand is required. 6. Entitlement to service connection for kidney problems is remanded. The Veteran's claim for service connection for kidney problems was denied because the evidence showed he had kidney problems prior to service. The Veteran testified that he sustained a football injury prior to enlistment, but that he had no symptoms related to his kidneys until later during his second period of active-duty service. The symptoms continued thereafter. The Veteran's service treatment records (STRs) reveal that at his enlistment in November 1979, he reported that he had blood in his urine/kidney problems. However, the medical examination associated with his entrance did not indicate any kidney issues. The STRs contain medical records from June 1976, prior to entrance, which provide a diagnosis of "prostatitis with terminal hematuria and urethral discharge." See VBMS, document labeled STR-Medical, receipt date September 14, 2014, pages 34-54 of 54. While the record contains STRs for the Veteran's first period of service, the records from the Veteran's second period of active-duty service cannot be located (November 1984 to August 1991). The Veteran has not been afforded an examination to address his claim for service connection, to include the proper standard for assessing whether a preexisting condition was present at entrance and was aggravated during service. Thus, a remand for an examination is required, to include whether the Veteran's kidney condition is etiologically related to his exposure to hazardous materials during his service in Southwest Asia. 7. Entitlement to a TDIU is remanded. Because a decision on the remanded issues above, as well as the assignment of an initial rating for the now service-connected acquired psychiatric disability, could significantly impact a decision on the issue entitlement to a TDIU, the issues are inextricably intertwined. Thus, a remand of the claim for a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2016 to the Present. 2. Request the Veteran provide a clarifying statement about his IBS. The Veteran should explain: a) when the symptoms of constant abdominal distress with alternating constipation and diarrhea started (as indicated in the Veteran's testimony; and b) when the Veteran started Miralax for his symptoms. 3. After obtaining any outstanding records, ask an appropriate clinician (for musculoskeletal disabilities) to review the Veteran's file. The clinician should be directed to complete a Gulf War Illness Examination. The Veteran asserts that he was exposed to chemical agents, to include exposure to burn pits, during his Persian Gulf War service. The records from the Veteran's second period of active-duty service cannot be located (November 1984 to August 1991). However, the lack of documented treatment is not a bar to benefits. The Veteran's lay statements must be considered. a. The examiner should identify any musculoskeletal pain during the claim period (from December 2013 to the present) even if resolved. The examiner is specifically directed to determine if the Veteran has a diagnosis associated with widespread musculoskeletal pain, to include fibromyalgia. The lack of a diagnosis in treatment records ALONE is not sufficient to determine that the Veteran does not have fibromyalgia. b. Is it at least as likely as not that any diagnosed disability is at least as likely as not related to the Veteran's military service, to include exposure to environmental hazards related to the Veteran's Persian Gulf War service? c. If there is/are no diagnosed disability(ies) that the Veteran's musculoskeletal symptoms can be attributed to, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. The examiner is asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Obtain an examination from an appropriate clinician regarding the Veteran's claimed kidney condition. A copy of the remand order should be provided to the clinician. The clinician should answer the following questions: a. (1) Did the Veteran's claimed kidney condition clearly and unmistakably exist prior to his second period of active duty service?; and (2) if so, was the condition clearly and unmistakably not aggravated during service? The examiner is advised that clear and unmistakable evidence is evidence that cannot be misinterpreted and misunderstood (undebatable). Not aggravated in this context means that there was no permanent increase in symptoms beyond the natural progression of the disability. The clinician is advised that the Veteran's STRs reveal that at his enlistment in November 1979, he reported that he had blood in his urine/kidney problems. However, the medical examination associated with his entrance did not indicate any kidney issues. The STRs contain medical records from June 1976, prior to entrance, which provide a diagnosis of "prostatitis with terminal hematuria and urethral discharge." See VBMS, document labeled STR-Medical, receipt date September 14, 2014, pages 34-54 of 54. While the record contains STRs for the Veteran's first period of service, the records from the Veteran's second period of active-duty service cannot be located (November 1984 to August 1991). b. If such condition did not clearly and unmistakably preexist service, is it at least as likely as not that any kidney disability is at least as likely as not related to the Veteran's military service, to include exposure to environmental hazards related to the Veteran's Persian Gulf War service? c. If there is/are no diagnosed disability(ies) that the Veteran's kidney symptoms can be attributed to, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.