Citation Nr: 21009809 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-38 678 DATE: February 23, 2021 ORDER The previously denied claim of entitlement to service connection for headaches is reopened; to this limited extent, the appeal of that issue is granted. The previously denied claim of entitlement to service connection for a skin condition is reopened; to this limited extent, the appeal of that issue is granted. The petition to reopen a previously denied claim of entitlement to service connection for chronic fatigue syndrome is denied. The petition to reopen a previously denied claim of entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to service connection for anxiety disorder, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. Entitlement to service connection for memory problems, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. Entitlement to service connection for a skin condition, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. Entitlement to service connection for sinusitis, including as secondary to the service-connected status-post thoracotomy, to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. Entitlement to service connection for headaches, including as secondary to the service-connected irritable bowel syndrome (IBS), to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. Entitlement to service connection for neurological and psychological disorder, other than anxiety disorder, including as secondary to the service-connected IBS, to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. Entitlement to service connection for joint and muscle disability, including as secondary to the service-connected status-post thoracotomy, to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. FINDINGS OF FACT 1. By a decision entered in December 2010, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for headaches and a skin condition; the Veteran was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s December 2010 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. The evidence received since the December 2010 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the claims for service connection for headaches and a skin condition and raises a reasonable possibility of substantiating the claims. 4. By a decision entered in February 2020, the Board denied the Veteran’s claims for service connection for chronic fatigue syndrome and sleep apnea. 5. The evidence received since the time of the Board’s February 2020 decision is cumulative and redundant and does not relate to an unestablished fact necessary to substantiate the claims for chronic fatigue syndrome and sleep apnea. CONCLUSIONS OF LAW 1. The December 2010 rating decision denying service connection for service connection for headaches and a skin condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the Veteran’s claim for service connection for a skin condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The February 2020 Board decision denying service connection for chronic fatigue syndrome and sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 5. New and material evidence has not been received to reopen the previously disallowed claim for service connection for chronic fatigue syndrome. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence has not been received to reopen the previously disallowed claim for service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1989 to August 1993, including service in the Southwest Asian Theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2015 and September 2018 rating decisions issued by the VARO. In regard to the claim for sinusitis, this claim was previously before the Board in September 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. As for the claims of entitlement to service connection for an anxiety disorder and memory problems, in February 2020, the Board, in pertinent part, denied service connection for both claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it denied service connection for a cervical spine disorder and remanding that matter for further development and readjudication. New and Material Evidence Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. Whether new and material evidence has been received to reopen the previously disallowed claim for service connection for headaches. 2. Whether new and material evidence has been received to reopen the previously disallowed claim for service connection for a skin condition. The Veteran’s claims for service connection for a skin condition and headaches were previously denied in a December 2010 rating decision. The Veteran did not file a notice of disagreement, nor was any new evidence received within a year. As such, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1003. The evidence before VA at the time of the December 2010 decision were the Veteran’s service treatment records, post-service VA and private treatment records, and lay statements from the Veteran. The RO denied the claim due to a finding that the Veteran’s disabilities were not incurred in or caused by service. New evidence received since the December 2010 rating decision includes various lay statements in which the Veteran indicated that his claimed disabilities are due to Persian Gulf service and/or secondary to the service-connected IBS. See January 2019 Notice of Disagreement. Additionally, the Veteran was afforded VA examinations in September 2018, which resulted in medical opinions pertaining to diagnoses and etiologies. Such evidence could reasonably substantiate the issues, and, at the very least, such evidence, when considered with the other evidence of record, triggers the VA Secretary’s duty to assist. As such, the new evidence meets the low reopening standard of Shade. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection for headaches and a skin condition. 38C.F.R.§3.156(a). 3. Whether new and material evidence has been received to reopen the previously disallowed claim for service connection for chronic fatigue syndrome. 4. Whether new and material evidence has been received to reopen the previously disallowed claim for service connection for a sleep disorder. The evidence reflects that the Board, in a September 2018 decision, denied the Veteran’s application for service connection for chronic fatigue syndrome and obstructive sleep apnea. The Board disallowed the Veteran’s claims, noting that the Veteran did not have a current diagnosis of chronic fatigue syndrome and that the diagnosed sleep apnea was not etiologically related to service. At the time of the Board’s September 2018 decision, the evidence included the Veteran’s service treatment records, which were devoid of any mention of chronic fatigue syndrome or a sleep disorder; post-service treatment records; the report of an April 2015 VA examination; and the Veteran’s statements in support of his claim. The Veteran appealed the Board’s decision to the Court. In a JMPR dated in July 2019, the Court vacated the Board’s decision that determined that, in pertinent part, denied service connection for chronic fatigue syndrome and a sleep disorder, and remanded the case to the Board for further proceedings consistent with the Court’s decision. In a February 2020 Board decision, entitlement to service connection for chronic fatigue syndrome and sleep apnea were again denied. The Board again noted that the Veteran did not have a current diagnosis of chronic fatigue syndrome and that the diagnosed sleep apnea was not etiologically related to service. That decision was not appealed to the Court, nor has reconsideration been requested. See November 2020 JMPR. As such, the decision became final. 38 C.F.R. § 20.1100. Since that final decision, the Veteran has not submitted new and material evidence. As such, the claim cannot be reopened. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Board acknowledges that the Veteran raised a new etiological theory (secondary service connection) during the pendency of this appeal. However, a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). While a new theory of entitlement cannot be the basis for reopening a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, such evidence has not been presented. As new and material evidence has not been received, the appeal must be denied. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims and to afford him every possible consideration. 1. Entitlement to service connection for anxiety disorder, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. 2. Entitlement to service connection for memory problems, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. 3. Entitlement to service connection for neurological and psychological disorder, other than anxiety disorder, including as secondary to the service-connected IBS, to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board did not adequately support its conclusion that the Veteran’s anxiety disorder was not a “[medically unexplained chronic multi-symptom illness (MUCMI)] because both the etiology and pathophysiology of th[at] mental disorder [were] understood.” The parties to the JMR agreed that while the Board relied on VA medical examinations from April 2015 and September 2018 to support its conclusion, review of those reports reflect that both were silent as it related to the pathophysiology of the Veteran’s disorder. The parties agreed that the Board’s attempt to substitute its own medical opinion would be inappropriate pursuant to Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Consequently, in light of the JMPR, the Board finds that a remand is necessary in order to obtain an opinion addressing the etiology and pathophysiology of the Veteran’s psychiatric disorder. As noted in the JMPR, the issue of entitlement to service connection for memory problems is inextricably intertwined with the claim for service connection for an anxiety disorder. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another benefit). Therefore, the memory problems claim will be remanded as well. 4. Entitlement to service connection for a skin condition, to include as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. The Board notes that the September 2018 VA examiner provided an opinion only as to the narrow question of whether the Veteran’s skin condition is related to the Veteran’s service in the Persian Gulf. No other direct service connection etiology opinion was provided. Notably, the Veteran’s service treatment records indicate a complaint of a rash on his neck. See June 1993 report of medical care. The Board finds a new VA examination is necessary to ascertain whether the Veteran's skin condition is etiologically related to service. 5. Entitlement to service connection for sinusitis, including as secondary to the service-connected status-post thoracotomy, to include as due to a qualifying chronic disability to include undiagnosed illness, is remanded. The Veteran contends that his sinusitis is related to service, to include Persian Gulf service, and/or the service-connected status-post thoracotomy. See February 2015 statement. First, the record reflects that there are outstanding private treatment records that may be relevant to the Veteran’s claims. In a February 2015 statement, the Veteran indicated he has received treatment for his claimed disability at an Ear, Nose, and Throat provider and an allergy specialist in Lincoln, Nebraska. At present, those private medical records have not been obtained. Reasonable efforts must be undertaken to obtain the missing private treatment records in accordance with VA’s duty to assist. See 38 C.F.R. § 3.159(e)(2). Additionally, numerous VA treatment records indicate that non-VA pulmonary records from Nebraska Pulmonary Specialties were scanned into VistA Imaging. It does not appear these scanned records have been associated with the claims file. A remand is required. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, the Board notes that the May 2015 VA examiner provided an opinion only as to the narrow question of whether the Veteran’s sinusitis is related to the environmental hazards the Veteran was exposed to in the Persian Gulf. No other direct service connection etiology opinion was provided. Given that the record is still devoid of a comprehensive etiology opinion as to whether the sinusitis is related to service, the Board finds that a new opinion is needed. 6. Entitlement to service connection for headaches, to include as secondary to the service-connected IBS is remanded. 7. Entitlement to service connection for joint and muscle disability, to include as secondary to the service-connected IBS is remanded. In a January 2019 notice of disagreement, the Veteran’s representative asserted that the Veteran’s headaches, neurological problems, and joint and muscle disability were either caused or aggravated by his service-connected IBS. To date, no medical opinion has been obtained regarding secondary service connection. As the Veteran has not been afforded a VA examination with respect to this theory, the Board finds VA examination is necessary to ascertain whether the Veteran’s headaches, neurological problems, and joint and muscle disability have been caused or aggravated by his IBS. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal, to include any Ear, Nose, and Throat and allergy specialists. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Take action to ensure that all relevant records of the Veteran’s VA treatment have been associated with the record, including copies of any relevant records scanned into VistA Imaging. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the clinician is to address the following: (a.) The examiner should identify all psychiatric and neurological disorders that have been present since the time that the Veteran filed his claim for service connection. For each diagnosed psychiatric and neurological disorder, including anxiety disorder, the examiner should then offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any diagnosed disorder had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to include consideration of Gulf War environmental hazards. (b.) If the Veteran experiences symptoms that are not attributable to a known clinical diagnosis, the examiner should offer an opinion as to whether it is at least as likely as not that the symptoms are attributable to an undiagnosed illness or a MUCMI. MUCMI means a diagnosed illness, without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent laboratory abnormalities. Chronic multisymptom illness of partially understood etiology and pathophysiology will not be considered to be medically unexplained. (c.) If it is determined that an acquired psychiatric or neurological disorder did not have its onset in nor is otherwise related to service, the examiner should offer a further opinion as to whether it is at least as likely as not that any diagnosed disorder has been (a) caused or (b) aggravated beyond its natural progression by service-connected IBS. A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran scheduled for a VA skin examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s diagnosed skin condition had its onset in, or is otherwise attributable to, service. In doing so, the examiner should comment on the medical significance, if any, of the June 1993 report of medical care indicating a complaint of a rash on the Veteran’s neck. A complete medical rationale for all opinions expressed must be provided. 5. Also arrange to have the Veteran scheduled for a VA sinus examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s sinusitis had its onset in, or is otherwise attributable to, service. A complete medical rationale for all opinions expressed must be provided. 6. Also arrange to have the Veteran scheduled for VA examinations pertaining to the claimed headaches, neurological problems, and joint and muscle disability. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the clinician is to address the following: (a.) The examiner should then offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any diagnosed headache disorder and joint and muscle disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to include consideration of Gulf War environmental hazards. (b.) If a headache disorder and/or joint and muscle disability is not clinically diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not that the symptoms are attributable to an undiagnosed illness or a MUCMI. (c.) If it is determined that a headache disorder and/or joint and muscle disability did not have its onset in nor is otherwise related to service, the examiner should offer a further opinion as to whether it is at least as likely as not that any diagnosed headache disorder and/or joint and muscle disability have been (a) caused or (b) aggravated beyond its natural progression by service-connected IBS. A complete medical rationale for all opinions expressed must be provided. 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.