Citation Nr: 21015693 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-04 325 DATE: March 18, 2021 ORDER New and material evidence having been submitted, the previously denied and final claim of service connection of gastroesophageal reflux disease (GERD) is reopened. New and material evidence having been submitted, the previously denied and final claim of service connection of an acquired psychiatric disability is reopened. REMANDED Entitlement to service connection of chronic fatigue syndrome is remanded. Entitlement to service connection of fibromyalgia is remanded. Entitlement to service connection of irritable colon syndrome is remanded. Entitlement to service connection of GERD is remanded. Entitlement to service connection of a low back disorder, claimed as degenerative disc disease, is remanded. Entitlement to service connection of a sleep disorder, to include obstructive sleep apnea, is remanded. Entitlement to service connection of hypogammaglobulinemia is remanded. Entitlement to service connection of osteoporosis is remanded. Entitlement to service connection of rheumatoid arthritis is remanded. Entitlement to service connection of small bundle fiber neuropathy is remanded. Entitlement to service connection of an acquired psychiatric disorder, claimed as major depressive disorder, is remanded. FINDINGS OF FACT 1. New and material evidence has been submitted to reopen a previously denied and final claim of service connection of gastroesophageal reflux disease (GERD). 2. New and material evidence has been submitted to reopen a previously denied and final claim of service connection of an acquired psychiatric disability. CONCLUSIONS OF LAW 1. New and material evidence having been received; the claim of service connection of GERD is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence having been received; the claim of service connection of an acquired psychiatric disability is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 1991 to November 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge via virtual hearing. A transcript of that hearing is of record. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then 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 ; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). New and material evidence need not prove a claim, but merely address a previously deficient criteria of service connection. 1. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection of gastroesophageal reflux disease (GERD) 2. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection of an acquired psychiatric disability The Veterans claims of service connection of GERD and a psychiatric disability were initially denied in a March 2003 rating decision. The Veteran did not appeal those denials and they became final. Her claim of service connection of GERD was again denied in a September 2006 rating decision, which she also did not appeal and is also final. She seeks to reopen these appeals. Although the RO has de facto reopened these claims and adjudicated them on the merits, the Board must still address the jurisdictional question of whether the claims have been reopened. In this matter, the Board finds that both claims should be reopened. During the pendency of these appeals, the Veteran submitted additional evidence, to include testimony before the undersigned, which addressed the question of a nexus between these disabilities and active service. This evidence is new in that it was not of record at the time of the prior incident. They are relevant in that they address a previously deficient criteria of service connection. As such, both claims are reopened. To this limited extent, the appeals are granted. REASONS FOR REMAND Inasmuch as the Board regrets any further delay in the adjudication of these claims, a remand is necessary to ensure proper development of the issues on appeal. As an initial matter, the Board recognizes that, following the hearing before the undersigned, VA sought and obtained significant medical records from the Social Security Administration (SSA). As VA is considered to be in constructive possession of federally held records, VA must reconsider these records in the first instance when assessing these claims before the Board may do so. The Board finds that a remand is additionally required for the following reasons. 1. Entitlement to service connection of chronic fatigue syndrome is remanded. 2. Entitlement to service connection of fibromyalgia is remanded. 3. Entitlement to service connection of irritable colon syndrome is remanded. 4. Entitlement to service connection of GERD is remanded. 5. Entitlement to service connection of small bundle fiber neuropathy is remanded. The Veteran seeks service connection of various disabilities, claimed as chronic fatigue syndrome, fibromyalgia, irritable colon syndrome, GERD and small bundle fiber neuropathy. To date, the Veteran has not been afforded a VA examination in connection with any of these claims, despite evidence in the record of digestive issues, and complaints of fatigue and muscle pain in service. Further, the Veteran has confirmed service in the Southwest Asia theatre of operations, and therefore consideration of service connection based on Gulf War exposures should be accomplished. While these disabilities have been formally diagnosed, the Board recognizes that they may be markers of a medically unexplained chronic multisymptom illness (MUCMI) for purposes of service connection pursuant to 38 C.F.R. § 3.317. As such, on remand, a full Gulf War examination should also be conducted. 6. Entitlement to service connection of a low back disorder, claimed as degenerative disc disease, is remanded. The Veteran seeks service connection of a low back disorder, claimed as degenerative disc disease. A review of her service treatment records reveals that, among other complaints of back pain throughout service, she sustained a lumbar strain following a fall in September 1999. To date, the Veteran has not been afforded a VA examination which assesses any possible link between her present low back condition and active service. As such, on remand, an examination should be conducted and an opinion obtained which assesses these questions. 7. Entitlement to service connection of a sleep disorder, to include obstructive sleep apnea, is remanded. The Veteran seeks service connection of a sleep disorder. A review of her claims file indicates a present sleep disorder diagnosis. Her service treatment records indicate multiple complaints of difficulty sleeping. To date, the Veteran has not been afforded a VA examination which assesses any possible link between her present sleep condition and active service. As such, on remand, an examination should be conducted and an opinion obtained which assesses these questions. 8. Entitlement to service connection of hypogammaglobulinemia is remanded. The Veteran seeks service connection of hypogammaglobulinemia. A review of her claims file indicates a present diagnosis of hypogammaglobulinemia. Further, her service treatment records indicate frequent sinus issues and infections throughout active service, all of which are potential markers of hypogammaglobulinemia. To date, the Veteran has not been afforded a VA examination which assesses any possible link between her present hypogammaglobulinemia and active service, or whether that condition had onset during active service. As such, on remand, an examination should be conducted and an opinion obtained which assesses these questions 9. Entitlement to service connection of osteoporosis 10. Entitlement to service connection of rheumatoid arthritis The Veteran seeks service connection of osteoporosis and rheumatoid arthritis, which she asserts either had onset during active service or are related to her hypogammaglobulinemia. To the extent that the claim for hypogammaglobulinemia remains on appeal, these issues are inextricably intertwined with that claim. The Veteran has also asserted that her blood tests throughout service showed early signs of osteoporosis. Therefore, on remand, the Board would request a medical opinion which assesses the Veteran’s blood tests in her service treatment records and opines as to whether or not that condition manifested during service or within one year of separation from service. 11. Entitlement to service connection of an acquired psychiatric disorder, claimed as major depressive disorder, is remanded. The Veteran seeks service connection of an acquired psychiatric disorder, previously claimed as bipolar disorder, and now claimed as major depressive disorder. A review of her claims file shows a present diagnosis of depressive disorder or other psychiatric complications. Further, the Veteran has testified to psychiatric difficulties in service, and in-service psychiatric care is confirmed by her service treatment records. To date the Veteran has not been afforded a VA examination to assess any possible etiology between her present disability and her in-service incidents and symptoms. As such, on remand, a psychiatric examination should be conducted which includes an opinion on the etiology of her current condition. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of her claim. The Veteran should be given the opportunity to identify any outstanding private treatment records which may assist in the development of her claim. 2. Schedule the Veteran for VA examinations for chronic fatigue syndrome, fibromyalgia, irritable colon syndrome, GERD, and fiber neuropathies. The Veteran should also be afforded a Gulf War examination which assesses these conditions and symptoms as a possible complication of Gulf War exposures. The examiner must review the claims file. The examiner is asked to provide a response to the following: For each individual disability: is the disability in question at least as likely as not related to service, including any in-service notations of fatigue, pain, bowel or gastrointestinal symptoms? The examiner should also state whether these conditions/disabilities combined or individually are the result of a medically unexplained chronic multisymptom illness (MUCMI) for purposes of presumptive service connection under 38 C.F.R. § 3.117. Provide a rationale to support the opinion(s). 3. Schedule the Veteran for a VA examination for her low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the low back disability at least as likely as not related to service, including her September 1999 lumbar strain, or any other complaint of back pain in service? Should the Veteran’s diagnosis fall under the diagnostic umbrella of “arthritis,” the examiner is also requested to state: is it at least as likely as not that the low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 4. Schedule the Veteran for a VA examination for her sleep disorder. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the present sleep disorder at least as likely as not related to service, including her multiple complaints of sleeping difficulties during active service? 5. Schedule the Veteran for a VA examination for her hypogammaglobulinemia. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the present hypogammaglobulinemia at least as likely as not related to service, including her multiple complaints of sinus and other infections during active service? The examiner is also requested to review the Veteran’s in-service lab work and state whether the condition first manifested during active service. 6. Schedule the Veteran for a VA examination for her osteoporosis and rheumatoid arthritis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the present osteoporosis and/or rheumatoid arthritis disabilities at least as likely as not related to any incident of service, including her claimed low alkaline phosphatase levels? The examiner is also requested to state whether or not either claimed disability had onset during active service, or within one year of separation from active service. Finally, the examiner should opine whether her osteoporosis and/or rheumatoid arthritis are either the result of, or have been aggravated beyond natural progression by her hypogammaglobulinemia. 7. Schedule the Veteran for a VA psychiatric examination. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s current acquired psychiatric condition at least as likely as not related to any incident of active service, to include the Veteran’s reported and confirmed in-service psychiatric issues? B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel