Citation Nr: 21021298 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-09 825 DATE: April 12, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for Gulf War Syndrome is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a respiratory disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a gastrointestinal disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Service connection for Gulf War Syndrome is remanded. Service connection for a respiratory disorder is remanded. Service connection for a gastrointestinal disorder is remanded. Service connection for an acquired psychiatric disorder is remanded. A total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT A final July 2013 rating decision denied service connection for bronchitis, gastrointestinal, and psychiatric disorders, to include as due to service in the Southwest Asia theater of operations during the Gulf War; newly received evidence raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for Gulf War Syndrome is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received to reopen the claim of entitlement to service connection for a respiratory disorder is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. Evidence received to reopen the claim of entitlement to service connection for a gastrointestinal disorder is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Evidence received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1989 to July 1993. For his meritorious service, he was awarded (among other decorations) the Certificate of Commendation and Sea Service Deployment Ribbon with two stars. Given the procedural complexities of this case, the Board first seeks to offer several points of clarification before turning to the merits of these appeals. First, a July 2013 rating decision denied service connection for psychiatric, gastrointestinal, and bronchitis disorders, to include on the basis of service in Southwest Asia. The instant appeal was initiated with the submission of a July 2016 letter from the Veteran’s former representative, requesting service connection for Gulf War Syndrome and psychiatric, gastrointestinal, and bronchitis disorders. The Board interprets this letter as a request to reopen service connection claims for all four conditions, as the symptoms, diagnoses, and theories of entitlement involved are identical to those assessed by the Agency of Original Jurisdiction (AOJ) in July 2013. Thus, the Gulf War Syndrome appeal is interpreted as a request to reopen rather than an initial service connection claim, and is adjudicated as such herein. Next, the July 2016 letter from the Veteran’s former representative requests to either reopen the service connection claims on the basis of new and material evidence, or revise the July 2013 rating decision on the basis of clear and unmistakable error (CUE). Therein, the former representative indicates that the “previously denied claim[s] should be revised and . . . granted due to clear and unmistakable error or, alternatively, the claim[s] should be re-opened . . . based on new and material evidence.” Motions to revise earlier final decisions based on CUE must be specifically pled and adjudicated by the AOJ before the Board may act on them. Here, the former representative did not properly allege a CUE in accordance with VA regulations; rather, he contended that the July 2013 rating decision did not address a theory of entitlement which was neither raised by the Veteran nor the record at that time. 38 C.F.R. § 3.105(a); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Moreover, during the pendency of this appeal, the former representative had consistently interpreted the issues as new and material evidence claims, and offered argument and evidence specific to such. See, e.g., December 2020 hearing transcript. Accordingly, the matters on appeal are interpreted as new and material evidence claims and will be adjudicated as such. This finding bears no negative impact on the Veteran, as this decision contains favorable determinations of the new and material evidence appeals. Further, CUE motions (unlike most other claims for benefits in the VA system) are subject to issue preclusion (that is, final denials of CUE motions may not be brought again as to the same arguments); thus, the Veteran may still file a complete CUE motion that meets VA’s requirements, should he so choose. Further, the Veteran testified during a December 2020 virtual hearing. A transcript of this proceeding has been associated with the record. During this hearing, the Veteran offered testimony as to several unrelated disorders. See generally December 2020 hearing transcript (discussing his history of eye/neurological, heart, kidney, and liver conditions). The record does not reflect that he has submitted official claims for these disorders at any time. Effective March 24, 2015, all claims must be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. Thus, the Veteran is hereby advised of his obligation to submit such a claim should he intend to pursue compensation benefits for the disorders identified herein. Additionally, in July 2016, the Veteran submitted a VA Form 21-22a identifying P. Lopez as his representative in this appeal. Since that time, Mr. Lopez has actively participated in this appeal, to include with the submission of both argument and evidence and his presence at the December 2020 hearing. However, in March 2021, the Veteran was informed that Mr. Lopez was not currently accredited to represent claimants before VA. 38 C.F.R. § 14.629. He was afforded 30 days to respond; otherwise, VA would assume that he intended to proceed in this appeal unrepresented. As no response has been provided to date and the 30-day timeline has lapsed, the Veteran now proceeds in this appeal pro se. Finally, upon the evidence of record, the bronchitis appeal has been expanded to include all respiratory disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence As set forth above, the Veteran is now seeking to reopen service connection claims for Gulf War Syndrome and psychiatric, gastrointestinal, and respiratory disorders on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, a July 2013 rating decision denied service connection for bronchitis, gastrointestinal, and psychiatric disorders, to include as due to service in the Southwest Asia theater of operations during the Gulf War. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the July 2013 rating decision became final. Rather, the Veteran requested to reopen the claims in July 2016, as discussed in the introduction to this decision. Thus, the Board must determine whether new and material evidence has been submitted since the final July 2013 rating decision. Upon review of the claims file, new and material evidence is found. In this respect, the prior final denial was based upon the Regional Office’s (RO’s) conclusion that the collective evidence did not show complaints, treatment, or diagnoses for the claimed conditions during service, and the Veteran did not serve in the Southwest Asia Theater of Operations such that presumptive service connection was for application. The newly received evidence offers a more specific theory of entitlement for consideration (namely, that the claimed condition were not related to service in the Southwest Asia Theater of Operations, but to the vaccines administered in preparation therefor). From 2016 to 2017, the Veteran also submitted multiple academic studies and articles supporting this theory of entitlement, in addition to a December 2020 affidavit from a private provider indicative of a potential nexus in this case. Thus, the newly received evidence contributes to a more complete picture of the circumstances surrounding the origin of these claims, and raises a reasonable possibility of substantiating the appeals. Upon a finding of new and material evidence, the application to reopen the service connection claims for Gulf War Syndrome and psychiatric, gastrointestinal, and respiratory disorders, is hereby granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. First, the service personnel records (SPRs) associated with this claims file are illegible. However, the Veteran has offered several details of his military service which are uncorroborated by the record, to include a history of foreign service in Japan and his receipt of an anthrax vaccination. See December 2020 hearing transcript. Corroboration of these details is relevant to the probative value of the Veteran’s testimony and the primary theory of entitlement offered in this appeal, such that reasonable efforts to obtain these SPRs (and corroborate the Veteran’s testimony) is warranted. Next, the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits during his December 2020 hearing. As these records may be relevant to the matters on appeal, reasonable efforts to obtain them must be undertaken. Further, the Veteran underwent a series of VA examinations in July 2017. The accompanying nexus opinions are inadequate for several reasons, to include the examiners’ failure to address potentially preexisting conditions, current diagnoses, and significant academic and medical literature provided by the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, adequate opinions contemplative of these factors should be obtained. Finally, the remaining issues are inextricably intertwined, and remand of the service connection appeals necessitates remand of the TDIU appeal, as well. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the record complete and legible SPRs for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran should be so notified in writing. 2. Complete any additional efforts to respond to the following inquiries, including with the assistance of the Joint Services Records Research Center (JSRRC). A memorandum responsive to these questions must be associated with the claims file: (A.) Identify the dates and locations for all scheduled (but not completed) and fulfilled periods of foreign service for this Veteran, to include scheduled service in the Southwest Asia Theater of Operations and fulfilled service in Japan. (B.) Confirm whether the Veteran received an anthrax vaccine in preparation for scheduled service in the Southwest Asia Theater of Operations. Consideration should be afforded to the Veteran’s status in a high-risk occupational group (as reported during the December 2020 hearing) and his reports of symptoms following the alleged vaccine. If the Veteran’s receipt of this vaccine cannot be verified, indicate whether it is known that such a vaccine was ever administered to servicemembers in preparation of such foreign service. This determination must not be limited solely to the Veteran’s service treatment records (STRs). However, it must address the academic studies/articles submitted by the Veteran in this case which suggest that such vaccines were administered under these circumstances. 3. Obtain any medical records of the Veteran’s in the care of the SSA, and which are relevant to his claims for Gulf War Syndrome, respiratory, gastrointestinal, and psychiatric disorders, and associate them with the claims file. 4. Obtain opinions addressing the questions below.  If the reviewing examiners determine that the opinion requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.           The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.    In particular, the respiratory and psychiatric examiners must explicitly address the following: (A.) Clearly identify ALL respiratory and psychiatric disorders diagnosed during the period on appeal. (B.) For EACH diagnosed disorder, respond to the following: (i.) Is it clear and unmistakable (obvious and manifest) that this disorder existed prior to active duty? Here, the respiratory examiner must address multiple notations in the Veteran’s STRs of childhood asthma, and his December 2020 testimony that he did not enter service with asthma. The psychiatric examiner must address multiple notations in the Veteran’s STRs of a childhood depression and/or adjustment disorder. (a.) If so, opine whether it is clear and unmistakable (obvious and manifest) that the disorder was not aggravated by a subsequent period of service?  In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability?  (b.)  If not, opine whether it is at least as likely as not (50 percent probability or more) that the condition began during a period of active duty service, was caused by service, or is otherwise related to service, to include in-service vaccinations in preparation for service in Southwest Asia? Here, the respiratory examiner must address the Veteran’s reports of receiving an anthrax vaccination; his reports of chronic bronchitis beginning in service; and his reports of “hacking” following the reported anthrax vaccination. The examiner must also address the December 2020 affidavit from Dr. I. Y. and the multitude of academic articles submitted by the Veteran in support of this appeal. The psychiatric examiner must also address the December 2020 affidavit from Dr. I. Y. and the multitude of academic articles submitted by the Veteran in support of this appeal. The gastrointestinal examiner must explicitly address the following: (A.) Clearly identify ALL gastrointestinal disorders diagnosed during the period on appeal. (B.) For each diagnosed disorder, is it at least as likely as not (50 percent probability or more) that it began during a period of active duty service, was caused by service, or is otherwise related to service, to include in-service vaccinations in preparation for service in Southwest Asia? Here, the examiner must explicitly address the December 2020 affidavit from Dr. I. Y. and the multitude of academic articles submitted by the Veteran in support of this appeal. The Gulf War Syndrome examiner must explicitly address the following: (A.) Indicate whether it is possible for a veteran to demonstrate Gulf War Syndrome without physical service in Southwest Asia? (i.) If so, indicate whether the Veteran has demonstrated Gulf War Syndrome (also known as an undiagnosed illness or a medically unexplained chronic multisymptom illness per 38 C.F.R. § 3.317) during the period on appeal, or if his reported symptoms are attributable to explicit diagnoses. Any such explicit diagnoses must be clearly identified. (ii.) For each diagnosis, indicate whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including in-service vaccinations in preparation for service in Southwest Asia? Here, the examiner must explicitly address the December 2020 affidavit from Dr. I. Y. and the multitude of academic articles submitted by the Veteran in support of this appeal. In formulating the opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the expert should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.