Citation Nr: 21008119 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-08 975 DATE: February 11, 2021 ORDER In the absence of new and material evidence, the application to reopen a previously denied claim for entitlement to service connection for external hemorrhoids is denied. Entitlement to service connection for a metatarsalgia/hallux valgus/osteoarthritis (right foot disability) is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to an increased rating for service-connected irritable bowel syndrome rated as 10 percent disabling prior to July 1, 2019 and as 30 percent disabling since is denied. Entitlement to service connection for a skin disability, claimed as cysts or folliculitis, is remanded. Entitlement to service for fibromyalgia is remanded. FINDINGS OF FACT 1. In an August 2006 rating decision, service connection for external hemorrhoids was denied. The Veteran did not appeal or otherwise submit relevant evidence during the one-year period following the decision and the decision is final. 2. Evidence submitted since the August 2006 rating decision is neither new nor material as it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for an external hemorrhoid disability. 3. The preponderance of the evidence is against finding that a right foot disability began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has had COPD at any time during or approximate to the pendency of the claim. 5. The Veteran’s IBS did not more nearly approximate a combination of symptoms productive of moderate or severe impairment of health prior to July 1, 2019. 6. The Veteran’s IBS did not more nearly approximate a combination of symptoms productive of an extraschedular or alternative rating after July 1, 2019. CONCLUSIONS OF LAW 1. The criteria to reopen the Veteran's claim for entitlement to service connection for external hemorrhoids have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 3. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a disability rating in excess of 10 percent for service-connected IBS prior to July 1, 2019 and in excess of 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as an infantryman in the United States Army from October 1983 until his honorable discharge in October 1986 and from January 1991 until his honorable discharge in October 1991, with service in Southwest Asia. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans’ Appeals (Board) on appeal from several rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA), in July 2011 for external hemorrhoids; in March 2013 for IBS and the right foot; and October 2014 for fibromyalgia, COPD, and skin disability. In April 2018, the Veteran testified before the undersigned at a hearing at the San Juan RO. A transcript of his testimony has been associated with the claims file. In August 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain VA treatment records and schedule the Veteran for VA examinations regarding his IBS, right foot disability, and right knee disability. A prior eating disorder claim was withdrawn by the Veteran at his hearing and was dismissed in the August 2018 Board decision. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, Service Connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that the Veteran's service personnel records and Form DD-214 reflect service in Iraq 1991. The Veteran contends that his disabilities were caused by his Southwest Asia service. As such, the Board has also considered whether the Veteran's symptoms in connection with his claims are due to an "undiagnosed illness" stemming from his service in Southwest Asia. Service connection may be warranted for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability that became manifest during the Persian Gulf War or to a degree of 10 percent or more, not later than December 31, 2021. See 38 U.S.C. § 1117(a)(1)(A); 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of "qualifying chronic disabilities": (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines warrants a presumption of service connection. An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5). Service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs of symptoms involving skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychologic signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The undiagnosed illness must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317(a)(1)(i). A "chronic disability" for purposes of 38 U.S.C. § 1117 is one that has existed for six months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions outlined above are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, a claimant must establish the existence of a disability and a connection between the veteran's service and that disability. Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for external hemorrhoids. New and Material Evidence Despite any prior determination reached by the RO regarding the claims on appeal, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Entitlement to service connection for external hemorrhoids This claim was originally denied in August 2006. The Veteran then requested the RO reopen the claim in November 2010, having not contacted the RO about this claim for the preceding four years the August 2006 decision became final. In order to reopen the claim, new and material evidence is required. The original August 2006 denial noted that the Veteran had been treated for external hemorrhoids since 2002. As a result, evidence of a current disability would not be new or material as the record already established that the Veteran has an external hemorrhoid disability. The RO has made attempts to locate the Veteran’s service treatment records, but they remain missing. After a review of the evidence of record, new and material evidence concerning an in-service event or nexus has not been submitted. As a result, the Board does not have jurisdiction to review the claim on the merits and the claim remains denied. 2. Entitlement to service connection for a metatarsalgia/hallux valgus/osteoarthritis (right foot disability). The Veteran asserts that his right foot disability developed as a result of the rigors of his military duties as an infantryman. The Veteran first filed his claim for a right foot disability in October 2012 and the claim was first denied in a March 2013 rating decision because the “condition neither occurred in nor was caused by service.” In September 2013, the Veteran filed a notice of disagreement with the RO in a statement in support of claim. In an October 2014 rating decision, the RO considered the claim reopened and then denied the claim on the merits. However, the March 2013 rating decision was not a final decision and so there was no need to “reopen” the claim. The Veteran again filed a notice of disagreement in October 2014 and the RO filed a statement of the case in February 2015, reopening and denying the Veteran’s claim. The Veteran has a current right foot disability. He has been diagnosed through imaging with metatarsalgia, hallux valgus, and osteoarthritis of the right foot. See February 2013 and July 2019 VA Examinations. As a result, the first element of service connection has been met. The Veteran’s service treatment records have not been located. There is no credible evidence that the Veteran’s right foot was injured in service, the Veteran did not describe an incident, injury, or event in service that would explain his current right foot injury. Furthermore, both VA examiners and a July 2019 addendum examiner found that he first sought treatment for his right foot condition more than five years after his discharge from service. As such, the second and third elements of service connection have not been met and the Veteran’s claim is denied. The right foot disability did not manifest with x-ray evidence of arthritis within the one-year period after service and so the provision of law providing for presumptive service connection for certain chronic not shown in service but diagnosed thereafter is not for application. The disability is diagnosed as above, and is not considered an medically unexplained chronic multi-symptom illness, an undiagnosed disability is not otherwise subject to the provisions of law pertaining to service in the Southwest Asia Theater of Operations and so service connection is not warranted under 38 C.F.R. § 3.317. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Veteran asserts that he has a lung condition. The Veteran admitted during his hearing that he did not have a current diagnosis for COPD. The Veteran’s VA treatment records are absent for any complaint, diagnosis, or treatment for COPD. A November 2020 VA examination noted that the Veteran had been diagnosed with chronic sinusitis and allergic rhinitis, which is already service connected, but made no mention of COPD. A Veteran is entitled to a VA examination when the following are met: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). There is no evidence that the Veteran has COPD. He testified at his April 2018 hearing that he did not have a COPD diagnosis, that he has smoked cigarettes for over 25 years, and that “most doctors … always” tell him that his lung problems are from smoking. He stated that his primary care physician also told him that his reported lung issues are from smoking. See April 2018 Hearing. The Veteran offered no explanation for what his lung condition was or what symptoms he has experienced as a result. There are also no medical records reporting complaints of a lung condition. A VA examination is not warranted because there is neither competent medical evidence of a current lung disability nor persistent or recurrent symptoms of a lung disability. Finally, it is important to note that Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 4. Entitlement to an increased rating for service-connected irritable bowel syndrome (IBS) in excess of 10 percent effective October 26, 2012 to June 30, 2019, and 30 percent thereafter. The Veteran asserts that his IBS has worsened. This is not supported by the objective medical evidence and his own statements to his VA providers. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has staged ratings of 10 percent effective October 26, 2012, and 30 percent effective July 1, 2019 to the present. Irritable bowel syndrome (IBS), described as “irritable colon syndrome (spastic colitis, mucous colitis, etc.)” in the rating criteria, is governed by 38 C.F.R. § 4.114 under diagnostic code 7319. The relevant rating criteria is as follows: “Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress [30 percent;] Moderate; frequent episodes of bowel disturbance with abdominal distress [10 percent;] Mild; disturbances of bowel function with occasional episodes of abdominal distress [noncompensable]. The Veteran was granted service connection for IBS in a March 2013 rating decision. He appealed, requesting an increase in his rating, in September 2013. The RO continued his 10 percent rating in an October 2014 rating decision. His notice of disagreement was received in October 2014. The February 2015 statement of the case continued the Veteran’s 10 percent rating. In August 2018, the Board remanded the claim for a VA examination on the severity of the Veteran’s IBS, the last examination having occurred in 2014. In August 2020, the RO increased the Veteran’s rating to 30 percent effective July 1, 2019, the day of his VA examination. The Veteran has had three VA examinations, in February 2013 for IBS, June 2014 for a stomach condition, and in July 2019 for IBS with an addendum that same month. The first VA examination in February 2013 diagnosed the Veteran with IBS. His symptoms included thinning stool, nausea, abdominal distension, and alternating diarrhea and constipation. The frequency of his episodes of bowel disturbance with abdominal distress was marked as frequent as opposed to occasional or more or less constant. The VA treatment records illustrate that the Veteran very rarely had diarrhea, constipation, or abdominal distress. See VA Treatment Records. The June 2014 VA examination for a stomach condition includes reports that the Veteran’s symptoms were recurrent but not severe with monthly abdominal pain and mild nausea four or more times a year. See June 2014 VA Examination. The VA treatment records leading up to the July 2019 VA examinations also show little to no symptoms. This supports the Veteran’s 10 percent rating from the beginning of the period on appeal up to the July 2019 examination. The July 2019 examination and addendum show that the Veteran’s diarrhea was frequent and described as daily. The addendum explains that he has daily symptoms, although with no functional loss. The examiner found that his condition did not preclude him from obtaining or maintaining gainful employment and completing activities of daily living. The Veteran was awarded a 30 percent rating as of this exam, no objective medical evidence or Veteran statements to his VA providers support awarding him a higher rating any time prior to the July VA examination. As a result, his increased rating claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a skin disability, claimed as cysts or folliculitis. The Veteran’s skin disability claim, claimed as cysts or folliculitis, was remanded by the Board in August 2018. The claim must be remanded to ensure due process of the claim. 38 C.F.R. § 19.31(b)(1) states as follows: The agency of original jurisdiction will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if: (1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board. The SSOC informs the Veteran of any material changes in, or additions to, the Statement of the Case. The claim was originally denied in an October 2014 rating decision, and the February 2015 statement of the case found that the disability did not occur in nor was caused by service. There was no link between the claimed disability and military service noted. However, after the claim was remanded to the RO for further development, the RO failed to include the disability in the August 2020 supplemental statement of the case. 2. Entitlement to service for fibromyalgia is remanded. Although the Veteran attended a general medical examination in connection with his claims in June 2014, that examination report did not address the question of whether any of the claimed condition represented manifestations of an undiagnosed illness or a medically unexplained multisymptom illness (MUCMI). The examiner found that the Veteran did not have fibromyalgia, but instead was diagnosed with myofacial pain syndrome. The analysis should not have ended there. Given the Veteran's service in Southwest Asia and the holding of Stewart v. Wilkie, 30 Vet. App. 383 (2018), the Board finds that an additional medical examination is necessary to determine whether service connection is warranted for this disability under 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician addressing the nature and etiology of any current skin disability, fibromyalgia disability, myofacial pain syndrome, and cervical spine disability, to include arthritis. An examination should be provided at the discretion of the examiner utilizing the Gulf War General Medical Examination Disability Benefits Questionnaire. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.