Citation Nr: 21032752 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-11 114 DATE: May 27, 2021 ORDER The appeal for service connection for irritable bowel syndrome (IBS) is granted. The appeal for service connection for a headache disorder is granted. The appeal for service connection for an alcohol use disorder secondary to posttraumatic stress disorder (PTSD), is granted. REMANDED The appeal for a compensable rating for rhinitis is remanded. The appeal for service connection for heat cramps is remanded. The appeal for service connection for an eye disorder, other than dry eyes, is remanded. The appeal to reopen a claim for service connection for a back condition is remanded. The appeal to reopen a claim for service connection for a right hip disorder is remanded. The appeal for a total disability rating due to individual unemployability (TDIU) prior to February 9, 2015, is remanded. FINDINGS OF FACT 1. The evidence supports a finding that the Veteran's headache disorder was caused by his service-connected rhinitis. 2. The evidence supports a finding that the Veteran's IBS had its onset in service. 3. The evidence supports a finding that the Veteran's alcohol use disorder was caused by his PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder are met. 38 U.S.C. §§ 1110, 1031, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). 2. The criteria for service connection for IBS are met. 38 U.S.C. §§ 1110, 1031, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2020). 3. The criteria for service connection for an alcohol use disorder are met. 38 U.S.C. §§ 1110, 1031, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1996. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 Travel Board hearing. The transcript is included in the file. The appeal was previously remanded by the Board in October 2018. As noted in the October 2018 remand, in a November 2015 Statement in Support of Claim, the Veteran raised a motion for review of a June 1997 rating decision that denied entitlement to service connection for the back and right hip based on clear and unmistakable error (CUE). The Veteran's motion for CUE in the June 1997 rating decision is referred to the AOJ for appropriate action. The Board also notes that following the supplemental statement of the case (SSOC), the Veteran returned a form indicating that his appeal had been satisfied. A few days later, the Veteran called the AOJ to explain that he did not understand what he was signing when he submitted the appeal satisfaction form. He indicated his intention to continue his appeal. Thereafter, he submitted a request to the AOJ that he wanted to withdraw the appeal satisfaction notice and continue the appeal. The Veteran also submitted the SSOC notice response noting that he had no further information to submit and to forward the case to the Board for further appellate consideration. The Board resolves doubt and finds that the criteria to withdraw the appeal are not met as the Veteran has voiced concern that he did not understand what was involved when he submitted the statement indicating satisfaction of the appeal. The most recent communication from the Veteran clearly expressed his intent to continue the appeal. Therefore, all issues remain on appeal and are addressed below. Service Connection 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for a chronic disability manifested by certain signs or symptoms that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1); see also 81 Fed. Reg. 73182 (October 17, 2016) (extending the presumptive period to December 31, 2021). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained, chronic multi-symptom illness that is defined by a cluster of signs or symptoms; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a). A medically unexplained, chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes functional gastrointestinal disorders (excluding structural gastrointestinal diseases). The term medically unexplained, chronic multi-symptom illness 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 demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, the following: irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. A diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require that symptoms are present for at least six months prior to the diagnosis and are of sufficient severity to diagnose the specific disorder for at least three months prior to the diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). "Objective indications of chronic disability" include both "signs," in the medical sense of 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). Signs or symptoms which may be manifestations of an undiagnosed illness or a medically unexplained, chronic multi-symptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs and symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a). With respect to the presumptions outlined in 38 C.F.R. § 3.317 in particular, VA must specifically address whether a diagnosed condition constitutes a medically unexplained chronic multi-symptom illness (MUCMI) as defined under 38 C.F.R. § 3.317 (a)(2)(ii). The Court of Appeals for Veterans Claims (Court) has recently addressed this regulatory provision and determined a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317(a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood in the context of the claimant's unique circumstances, the diagnosed condition may constitute a MUCMI. The conditions listed in 38 C.F.R. § 3.317(a)(2)(ii)(B), to include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, are example MUCMIs and are not intended to serve as an exhaustive list of MUCMIs for the purposes of the presumptive provisions of 38 C.F.R. § 3.317. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for IBS (claimed as abdominal pain with irregular bowel movement). The Veteran asserts that he has a gastrointestinal disorder related to service, to include service in the Southwest Asia Theater of Operations. There is no dispute that the Veteran has a diagnosis of irritable bowel syndrome (IBS). See January 2019 VA examination report. Further, there is no dispute that the Veteran had service in Southwest Asia during the Gulf War. As discussed above, IBS is specifically listed as one of the illnesses that may be presumed to be related to service in the Southwest Theater of Operations. The Veteran was provided with a VA examination in January 2019 to address his claimed abdominal disorder. The VA examiner diagnosed IBS. The examiner noted that the Veteran's IBS was diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The instruction on the examination report informed the examiner that if IBS was diagnosed, the disorder was presumed to be related to the Veteran's service in Southwest Asia and further explanation was not required from the examiner. Based on the foregoing, the Board finds that service connection is warranted for the Veteran's IBS as due to his service in Southwest Asia. 2. Entitlement to service connection for headaches. The Veteran asserts that he has a headache disorder that is either due to service, or alternatively, is secondary to his service-connected allergic rhinitis. As an initial matter, there is no dispute that the Veteran has a current headache disorder. See January 2019 VA examination report. The January 2019 VA examiner opined that the Veteran's headaches was a disease with clear and specific etiology and was less likely than not related to specific environmental exposure in service in Southwest Asia. However, the examiner also opined that the Veteran's headache disorder was at least as likely as not proximately due to or the result of the Veteran's service-connected allergic rhinitis disorder. The examiner reasoned that medical literature supported a finding that allergic rhinitis can cause headaches. Based on the foregoing, the Board finds that service connection is warranted for the Veteran's headache disorder as secondary to service-connected rhinitis. 3. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) with anxiety. The Veteran initially appealed the AOJ's denial of service connection of an acquired psychiatric disorder other than PTSD. The Board remanded the appeal in October 2018 for further development. While on remand, the AOJ granted service connection for anxiety and increased the Veteran's disability rating accordingly, and recharacterized the service-connected disability as PTSD with anxiety. In the October 2018 remand, the Board noted that private treatment records noted complaints of symptoms including anxious/fearful thoughts, difficulty falling asleep, excessive worry. The Board also noted the Veteran's report that he had been fired for misconduct and reported that sometimes he became combative and the Veteran's report that a private physician had assessed the Veteran with chronic anxiety and chronic depression and referred the Veteran to a psychiatrist. The Board also noted that an August 2014 private treatment record diagnosed the Veteran with an adjustment disorder with anxiety and noted the Veteran's problem list including anxiety problem and adjustment reaction with anxious mood. A June 2017 private treatment record also documented that the Veteran was being treated for generalized anxiety disorder. Pursuant to the October 2018 remand, the Veteran was afforded VA psychiatric examinations in December 2020 and February 2021. The Board finds the December 2020 VA examination report to be inadequate as the examiner noted that the Veteran's only psychiatric diagnosis was PTSD but did not address or explain why other disorders noted in the private treatment records were incorrect or resolved, or whether such disorders were related to service or service-connected disability. As noted by the Veteran in an August 2020 statement, the December 2019 VA Gulf War examiner noted that the Veteran suffered from anxiety. The December 2020 VA psychiatric examiner did not address the private treatment records, Veteran's statements, or the December 2019 VA Gulf War examination report which all indicated that the Veteran may have acquired psychiatric disorders other than PTSD. A February 2021 VA telehealth examination report noted that the Veteran had an alcohol use disorder that was secondary to PTSD and represented an attempt to self-medicate. The examiner explained that the Veteran's PTSD constituted the majority of his impairment. Based on the foregoing, the Board finds that the Veteran has a separate diagnosis of an alcohol use disorder that is secondary to PTSD. As such, service connection for the alcohol use disorder is warranted. To the extent that the Veteran seeks service connection for depression separate from his PTSD, the Board finds that a separate grant of service connection is not warranted as the February 2021 VA examiner also noted that the Veteran's depressed mood was a symptom of PTSD, and therefore was not a stand-alone mental health disability. REASONS FOR REMAND 1. Entitlement to a compensable rating for rhinitis. Pursuant to the October 2018 Board remand, the Veteran was provided with a VA examination in December 2019. The December 2019 VA examiner determined that the Veteran had not ever had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis or complete obstruction on one side, hypertrophy of nasal turbinates, nasal polyps, or any granulomatous condition. The examiner noted that the Veteran's Flonase nasal spray was no longer an active medication. Following the examination, the Veteran disputed the December 2019 VA examiner's findings with respect to the Flonase medication as well as the findings regarding obstruction of nasal passages. The Veteran reported that the December 2019 VA examiner did not physically examine his nasal passages. See Veteran's February 2020 statement. The Veteran's wife also reported that she was present throughout the entire examination and that the only attempt at conducting a physical examination was on the Veteran's shoulders and arms. See February 2020 statement. Also, in December 2019, the Veteran's wife submitted a statement that for the entire time she had been married to the Veteran, since 1987, he had suffered from allergies and used allergy medications to relieve symptoms of congestion and nasal inflammation. She also reported that he had been prescribed allergy medication for many years which somewhat reduced his sneezing, runny nose, congestion, and occasional nosebleeds during the daytime. The December 2019 VA examiner did not address the Veteran's wife's statement. The Veteran also submitted a January 2020 VA treatment record which listed Fluticasone (also known as Flonase) nasal spray as an active medication to for daily treatment of nasal allergies. Based on the foregoing, the Board finds that the December 2019 VA examination was inadequate, and another examination is required. 2. Entitlement to service connection for heat cramps. The same examiner who conducted the December 2019 VA examination for rhinitis, also conducted the December 2019 VA examination for heat cramps. The examiner determined that the Veteran's leg cramps were not related to the leg cramps in service. In reaching this conclusion, the examiner did not address the Veteran's statements that he had experienced recurring leg cramps since service. Thus, it appears that the opinion may have based on an incomplete understanding of the Veteran's assertions. Further, there is some dispute as to whether the examiner conducted a physical examination of the Veteran's legs. The examiner indicated that he conducted a physical examination, but the Veteran and his wife have submitted statements indicating that the only attempt at a physical examination was of the Veteran's shoulders and arms. See February 2020 statement. Based on the foregoing, the Board finds that another examination is required. 3. Entitlement to service connection for an impaired vision disorder, other than dry eyes. As an initial matter, the Board notes that following the October 2018 remand, the Veteran submitted a private disability benefits questionnaire (DBQ) in January 2019 regarding the claimed eye disorder. The private clinician diagnosed dry eye syndrome and related the same to medications taken to treat the Veteran's service-connected disorders. Thereafter, the AOJ granted service connection for the Veteran's dry eye disorder. However, the remaining eye disorders remain on appeal. The October 2018, the Board remanded the appeal for a VA examination. The examiner was asked to address each of the Veteran's eye disorders and discuss whether they were directly related to service or caused or aggravated by medication for service-connected disorders. On remand, the AOJ provided VA examinations in November 2018, November 2019, and January 2021. The November 2018 VA examiner opined that the Veteran's intraretinal hemorrhage and cataracts were not related to service and reasoned that there was no evidence of ophthalmic abnormality during service. In reaching this conclusion, the examiner did not discuss the Veteran's sworn testimony that he had experienced eye symptoms since service. The examiner was instructed to consider such statements, in the October 2018 remand. The AOJ provided another VA examination in November 2019 but the November 2019 VA examination report did not contain an opinion regarding the etiology of any eye disorder. Thereafter, the AOJ provided the Veteran with another VA examination in January 2021. The Board appreciates that the January 2021 VA examiner discussed diagnoses of dry eyes, nuclear sclerotic cataracts, and corneal arcus, but unfortunately, the examiner did not discuss the Veteran's intraretinal hemorrhage. As the Veteran was diagnosed with an intraretinal hemorrhage during the pendency of the claim (see June 2017 VA treatment record), the VA examiner should have addressed the disorder, even if it resolved during the pendency of the claim. For these reasons, an addendum opinion is required. 4. Whether new and material evidence was received to reopen a claim for service connection for a back condition is remanded. 5. Whether new and material evidence was received to reopen a claim for service connection for a right hip disorder is remanded. As discussed in the October 2018 remand, and the introduction above, in November 2015, the Veteran filed a motion for review of a June 1997 rating decision denying entitlement to service connection for back and right hip disorders on the basis of clear and unmistakable error (CUE). The Veteran's motion asserting CUE has not yet been addressed by the AOJ. Consideration of the claims to reopen are deferred until the intertwined issue of CUE is either resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). 6. Entitlement to a TDIU prior to February 9, 2015. For the period prior to February 2, 2015, the Veteran does not meet the schedular rating criteria for a TDIU. Thus, the claim for TDIU must be remanded as the outcome of the remaining claims being remanded may impact the Veteran's entitlement to TDIU for this period. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Afford the Veteran an examination by an appropriate clinician to determine the current severity of his service-connected rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and describe functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to rhinitis alone and discuss the effect of the Veteran's rhinitis on any occupational functioning and activities of daily living. 3. Afford the Veteran a VA examination to determine whether his cramps in his legs are related to service or service-connected disability. (a.) Consider the Veteran's competent and credible complaints of cramps in his legs. Identify any current disorder manifested by these symptoms. (b.) If the Veteran's symptoms are not manifestations of an identifiable disorder, the examiner is asked to address whether they are at least as likely as not manifestations of an undiagnosed illness, or a medically unexplained chronic multi symptom illness due to environmental exposures in Southwest Asia. If the examiner maintains that the symptoms are not related to exposures in service, the examiner must explain how the conclusion was reached. The examiner is reminded that documentation of these complaints during service is not required to find that they occurred in service. Thus, if any lack of documentation in service is significant, the examiner must explain why it was significant. (c.) For each identifiable disorder, opine whether it is at least as likely as not (50 percent probability or higher) that the disorder had onset in, or is otherwise related to service, to include environmental exposures in Southwest Asia or physical training in service and possible overuse. (d.) Even if no current diagnosis is identified in the legs, the examiner is asked to offer an opinion with respect to whether it is at least as likely as not that any current pain resulting in functional loss, is related to an in-service injury, event, or disease, including physical training and constant or continuous use in service. Consider the Veteran's statements that his leg cramps began in service and have recurred since service. 4. Obtain a VA addendum opinion regarding whether any current eye disorder (including cataracts or intraretinal hemorrhage) is related to service. The examiner must review the Veteran's electronic file and address the following. (a.) Address the June 2017 diagnosis of intraretinal hemorrhage. If the diagnosis resolved or was misdiagnosed, the examiner should identify the same and explain the basis for the conclusion. (b.) Even if the Veteran's intraretinal hemorrhage resolved during the pendency of the appeal, opine as to whether it is at least as likely as not (50 percent probability or higher) that the disorder is related to an in-service injury, event, or disease, including exposure to sun and heat in service. Consider the Veteran's statement that he experienced eye pain since service. (c.) The examiner is asked to explain the basis for any opinion reached. 5. Address the Veteran's November 2015 CUE motion, as referenced above. Defer action on the Veteran's claims to reopen his service-connection claims for a back and right hip disability until all appropriate action on the CUE motion is taken. 6. After all such development is completed, readjudicate the Veteran's claims based on the entirety of the evidence. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.