Citation Nr: 22018446 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 14-31 975A DATE: March 29, 2022 ORDER The appeal concerning entitlement to service connection for disability manifesting in chronic diarrhea (claimed as irritable bowel syndrome) is dismissed. REMANDED Entitlement to service connection for a sleep-related breathing disorder is remanded. Entitlement to service connection for kidney stones is remanded. Entitlement to a higher initial disability rating for fibromyalgia, currently with a 20 percent evaluation prior to December 28, 2021 and 40 percent thereafter is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. FINDING OF FACT Following the Board's prior July 2021 Remand, the Agency of Original Jurisdiction (AOJ) granted service connection for disability involving chronic diarrhea. CONCLUSION OF LAW As the benefit sought on appeal have been granted by the AOJ, there remains no allegation of error of fact or law concerning the issue of entitlement to service connection for a disability manifesting in chronic diarrhea; the appeal is therefore moot, and dismissal is appropriate. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104, 20.801. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army National Guard from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office (RO). The Veteran's representative appeared at a virtual Board hearing held before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. The Veteran presently has additional appeals pending concerning entitlement to testicular cancer, a neck disability, memory loss, and varicose veins of the bilateral lower extremities. Those issues were the subject of both the April 2021 virtual hearing as well as an October 2015 video hearing held before a different Veterans Law Judge. Those appeals will be the subject of a separate decision. The Board remanded this appeal for additional development in July 2021. It has since been returned to the Board for further appellate review. The Board notes additional claims for service connection for sarcoidosis and peptic ulcer disease were also remanded in July 2021 and were subsequently granted by the AOJ in a rating decision dated January 2022. This represents a full grant of the benefits sought and, as such, the issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The appeal concerning entitlement to service connection for a disability manifesting in chronic diarrhea (claimed as irritable bowel syndrome) is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. In an October 2014 application, the Veteran initiated a claim for service connection, in relevant part, for peptic ulcer disease and irritable bowel syndrome, both claimed as related to Gulf War environmental hazard exposures. At the February 2015 VA intestinal examination, the Veteran described experiencing cycles of bowel irregularities for several years, with diarrhea and loose stools, as well as gas and bloating. Following the Board's July 2021 Remand, the Veteran was provided with additional VA examination for intestinal and stomach conditions, at which he was noted to have diagnoses of peptic ulcer disease, antral gastritis, and chronic diarrhea, all of which the examiner opined were at least as likely as not proximately due to or the result of the Veteran's service-connected posttraumatic stress disorder. Based on this opinion, the AOJ granted service connection for peptic ulcer disease with chronic diarrhea and antral gastritis in a January 2022 rating decision. While the AOJ issued a supplemental statement of the case in January 2022 in which it denied entitlement to service connection for irritable bowel syndrome, the underlying symptoms of gastrointestinal distress have been attributed to a disability for which service connection has been granted. Therefore, the benefit sought for the disability, service connection, has been granted, albeit under a different diagnosis. The record does not reflect that the Veteran has voiced disagreement or initiated an appeal with the disability rating or effective date assigned. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, the issue of entitlement to service connection for a disability manifesting in chronic diarrhea is no longer in appellate status. Accordingly, the Board lacks jurisdiction over the issue because the benefits sought have been granted and the issue on appeal has been rendered moot. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.22, 20.104, 20.801. The appeal will therefore be dismissed without prejudice. REASONS FOR REMAND In the July 2021 Remand, the Board noted that the Veteran's attorney had requested information concerning the competence of the July 2014 and February 2015 examiners, and had requested access to their curriculum vitae, as well as similar information on the qualifications of any examiner conducting future examinations of the Veteran pursuant to the remand directives. The Remand directed that such should be provided to the Veteran and his representative and copies associated with the claims file. While a September 20, 2021 FOIA/Privacy Request response letter has been associated with the electronic claims file indicating that a copy of the Veteran's claims file was sent to the Veteran and his representative via compact disc, the post-remand VA examinations were not conducted until December 2021. While these examination reports include information about the education and experience of the examiner, there is no indication that such has been provided to the Veteran or his representative, or that curriculum vitae for the July 2014 and February 2015 examiners have been provided, as requested. The Board thus finds that there has not been substantial compliance with the prior remand directive, and further remand is needed to meet VA's duty to assist the Veteran. See 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); Francway v. Wilkie, 940 F.3d 1304, 1307-09 (Fed. Cir. 2019); Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand order imposes a concomitant duty to ensure compliance with the terms of the remand). 1. Entitlement to service connection for a sleep-related breathing disorder is remanded. The Veteran has claimed entitlement to service connection for a sleep-related breathing disorder, claimed as sleep apnea. In the prior remand, it was noted that the record reflected that the Veteran underwent a non-VA sleep study in January 2015, but that such report had not yet been associated with the record. The February 2015 examiner stated that the overnight sleep study indicated mild occurrences of nocturnal hypopnea, but that there was no indication of obstructive sleep apnea, and the findings did not warrant further testing; but he also wrote that the Veteran was prescribed home oxygen for bedtime use due to these findings. Review of the VA treatment records reveals a VA addendum note from February 2015 indicating that PFT and the results of overnight pulse oxygen monitoring per the Veteran's local medical doctor, Dr. S. Phillips, had been reviewed and scanned. These scanned records do not appear in the claims file, but are nevertheless constructively of record. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (Federal records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). On remand, the AOJ must take all necessary steps to ensure that such records are associated with the claims file, or that a formal finding of unavailability is associated with the record and the Veteran provided with appropriate notice. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the February 2015 VA examiner stated that the Veteran did not have a diagnosis of sleep apnea, VA treatment records as recently as May 2021 include an assessment of sleep apnea, which is noted to be chronic, stable, and for which the Veteran uses a CPAP, nightly. Further examination and medical opinion is found needed to adequately address whether the Veteran suffers from a sleep-related breathing disorder related to his service or which has been caused or aggravated by a service-connected disability. 2. Entitlement to service connection for kidney stones is remanded. Pursuant to the prior Board remand, the Veteran and his representative were sent a letter, in July 2021, requesting that the Veteran complete and return a VA Form 21-4142 in order for VA to request private treatment records on his behalf. No response has been received. As the Board is remanding these matters for other necessary development, the Veteran should be given another opportunity to supply the necessary information and authorizations. The Veteran should be advised that while VA will make reasonable attempts to obtain these records on his behalf, it is ultimately his responsibility to ensure that this private medical evidence is made available to VA for consideration. 3. Entitlement to a higher initial disability rating for fibromyalgia, currently with a 20 percent evaluation prior to December 28, 2021 and 40 percent thereafter is remanded. As described above, the Veteran and his representative have not yet been provided with the requested information concerning the qualifications of the examiners who evaluated the Veteran's fibromyalgia at July 2014 and December 2021 examinations. On remand, such must be completed. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. On the December 2021 fibromyalgia examination report, the examiner indicated that the Veteran's fibromyalgia prevents him from being able to sit or stand for prolonged periods of time. It was noted that the Veteran was a construction operator, and is no longer able to perform this line of work due to being unable to pick up materials or engage in repetitive stooping or bending. The Board finds that entitlement to a TDIU has been raised as part and parcel of the Veteran's claim for a higher initial disability rating for service-connected fibromyalgia. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the Veteran currently has a 100 percent disability rating for posttraumatic stress disorder, the inferred claim for a TDIU is not rendered moot, as special monthly compensation may be available to the Veteran if it is found that he is rendered unemployable by service-connected disability(ies) other than his PTSD. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); see also AB v. Brown, 6 Vet. App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law.") On remand, the AOJ should request that the Veteran complete and return a VA Form 21-8940, and conduct any other necessary development pertaining to this claim. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the Present and associate them with the claims file. Additionally, ensure that any relevant non-VA treatment records for this Veteran that have previously been scanned by VHA, including the respiratory therapy diagnostic study /overnight pulse oxygen monitoring reports from January 22, 2015 and/or February 2015 are associated with the electronic claims file. If such reports cannot be located, notify the Veteran, and offer him the opportunity to provide it, and prepare a formal finding of unavailability for the electronic claims file. 2. Ask the Veteran to adequately identify and complete a VA Form 21-4142 for any relevant private treatment records he wishes for VA to obtain on his behalf, to specifically include those relating to private treatment by Dr. S. Phillips (primary care), Dr. Miller, Dr. Swicegood (pain management), and Dr. Birkey (at Sparks Sleep Lab). Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. If the records cannot be obtained, inform the Veteran of any action taken and responses received. The Veteran is advised that it is ultimately his responsibility to ensure that private treatment records are received. 3. Afford the Veteran an opportunity to clarify his employment history and to submit a VA Form 21-8940 (Application for Increased Compensation Based on unemployability) in addition to any additional evidence relevant to the inferred claim for a TDIU that has been found raised in connection with the claim for a higher initial disability rating for fibromyalgia. 4. After associating all records responsive to remand directives #1 and #2 with the claims file, schedule the Veteran for a VA examination for his claimed sleep-related breathing disorder and provide the examiner with a list of the Veteran's service-connected disabilities. The examiner must review the claims file and should be provided with a list of the Veteran's service-connected disabilities. Any testing deemed necessary should be conducted. The examiner is asked to identify any sleep-related breathing disorder(s) present during the relevant appeal period (October 2014 to Present). The examiner should specifically confirm or rule out diagnoses of sleep apnea and hypopnea. For any sleep-related breathing disorder identified, the examiner is asked to address the following: a. Is the disability at least as likely as not related to the Veteran's military service, to include environmental exposures while serving in Iraq during the Gulf War? b. Is the disability proximately due to his service-connected disability(ies)? c. Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected disability(ies)? A clear rationale must be provided for any conclusions and opinions stated. 5. After completing the above, provide the Veteran and his representative with information regarding the qualifications of the VA examiners who performed the July 2014, February 2015, and December 2021 examinations of the Veteran's fibromyalgia and sleep-related breathing disorder claims, as well as the examiner who performed the sleep-related breathing disorder examination requested by Remand directive #4, above, to include a curriculum vitae and/or other similar information. This information should be associated with the Veteran's claims file; allow a reasonable amount of time for the Veteran and/or his representative to review the qualifications and respond, also associating any response and related materials with the electronic claims file. 6. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the Veteran's claims for entitlement to service connection for a sleep-related breathing disorder, entitlement to service connection for kidney stones, entitlement to a higher initial disability rating for fibromyalgia, and entitlement to a TDIU. If any of the benefits sought are not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and allow a reasonable opportunity for a response. Then, return the appeal to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.