Citation Nr: 21030321 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-23 825 DATE: May 18, 2021 ORDER Entitlement to service connection for anemia secondary to service-connected hemorrhoids is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for upper chest bleeding is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed anemia is due to his service-connected hemorrhoids. CONCLUSION OF LAW The criteria for service connection for anemia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to August 1980, from September 1985 to February 1986, from September 1990 to July 1991, from March 2003 to June 2004, and from May 2006 to May 2009. He also had additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2013, February 2014, and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office. The RO declined to reopen the service connection claim for anemia in the April 2013 rating decision, denied the service connection claim for sleep apnea in the February 2014 rating decision, and denied the service connection claim for upper chest bleeding in the December 2015 rating decision. The Board remanded this case in May 2020 for further development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board's favorable disposition of the service connection claim for anemia, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. 1. Entitlement to service connection for anemia secondary to service-connected hemorrhoids is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. While the February 2021 VA examiner found that the Veteran did not have anemia at the time of examination, the evidence of record shows that the Veteran has been diagnosed with anemia during the appeal period, specifically in February 2012, June 2013, February 2014, and October 2014 VA treatment records. Further, the Veteran was granted service connection for hemorrhoids in a February 2021 rating decision. With the threshold requirements for secondary service connection met, the dispositive question is whether the Veteran's anemia is due to a service-connected disability. In a November 2012 VA examination opinion, the examiner found that the Veteran's anemia in 2005 and 2009 were commensurate with upper intestinal bleeding and not small hemorrhoids. In a February 2021 VA examination opinion, the examiner found that it was most likely that the Veteran's anemia was due to his hemorrhoids. The Board finds that the medical opinion evidence is at least in equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, his anemia was at least as likely as not caused by his service-connected hemorrhoids. As such, service connection for anemia as secondary to hemorrhoids is warranted. 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for upper chest bleeding is remanded. Evidence indicates that are outstanding relevant VA treatment records. Review of VA treatment records show that the Veteran was referred to non-VA GI specialists and gastroenterologists in November 2015, October 2020, and November 2020 and these records are located in Vista Imaging. However, these records have not been associated with the record. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Additionally, in its May 2020 remand directives, the Board instructed the VA examiner to opine as to the etiology of the Veteran's sleep apnea, to include as secondary his service-connected posttraumatic stress disorder (PTSD), and, in doing so, consider whether it was due to in-service vaccines and loud snoring, gasping, and long pauses in breathing while sleeping during service as witnessed by his fellow serviceman. The Board also instructed the VA examiner to opine as to the etiology of the Veteran's upper chest bleed or internal bleeding disability and, in doing so, consider the Veteran's history of hematochezia dating back to 1990, bloody stools in 1990, and having been diagnosed with anemia secondary to intestinal bleeding source in a November 2012 VA examination. However, it does not appear that the February 2021 VA examiner complied with these instructions. As such, the RO's development of the Veteran's claim did not substantially comply with the May 2020 remand instructions. Hence, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Further, as the Veteran served on active duty in Southwest Asia during the Persian Gulf War, specifically from September 1990 to July 1991 and from March 2003 to June 2004, service connection may be warranted if he has a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. With regards to his service connection claim for upper chest bleeding, the VA examinations of record do not address whether the Veteran's gastrointestinal sign or symptom of hematochezia is an undiagnosed illness or whether the diagnosed gastric antral vascular ectasia status post hemostasis with bipolar diathermy may be considered a MUCMI. With regards to his service connection claim for sleep apnea, the VA examinations of record do not address whether the diagnosed sleep apnea may be considered a MUCMI. The Board notes that in Stewart v. Wilkie, the Court of Appeals for Veterans Claims clarified that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive. As the VA examinations of record are inadequate to resolve the claim in light of the Veteran's status as a Gulf War veteran, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records located in Vista Imaging, but not associated with the claims file, to include, but not limited to, the November 2015, October 2020, and November 2020 GI and/or gastroenterology notes. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his sleep apnea and upper chest bleeding. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of his upper chest bleeding, to include hematochezia. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) For the objective indications that can be attributed to a known clinical diagnosis, such as gastric antral vascular ectasia, and sleep apnea, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) For the objective indications that can be attributed to a known clinical diagnosis, such as gastric antral vascular ectasia, and sleep apnea, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was incurred in or is otherwise related to his active service, to include vaccines and loud snoring, gasping, and long pauses in breathing while sleeping as witnessed by his fellow serviceman. See Third Party Correspondence Letter dated June 25, 2013. b. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused by or aggravated by his service-connected PTSD? c. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's upper chest bleed or internal bleeding disability was incurred in or is otherwise related to his active service, to include the Veteran's conceded contentions of having bloody stools in 1990. In providing this opinion, the examiner should determine whether an upper chest bleed or internal bleeding disability manifested during the appeal period (October 21, 2015 to present). The examiner should also consider the Veteran's documented history of having hematochezia dating back to 1990 and gastric antral vascular ectasia as recently as 2012. The examiner should also note that the Veteran has been diagnosed with anemia secondary to an intestinal bleeding source. See November 2012 VA examination. A complete rationale must be provided for all opinions expressed. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.