Citation Nr: 1736652	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-31 065	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness.  

2. Entitlement to service connection for a sleep disorder (claimed as sleep disturbance), to include as due to an undiagnosed illness. 

3.  Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Bilstein, Associate Counsel
INTRODUCTION

The Veteran served on active duty from July 1978 to April 1986 and from May 1988 to September 1992 and was awarded the Saudi Arabia Kuwait Liberation Medal, Southwest Asia Service Medal, and National Defense Service Medal. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

In November 2013 and March 2016, the Board remanded this case for further evidentiary development.  

As noted by the Board in the November 2013 and March 2016 remands, the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a skin disorder and muscle and joint pain have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim is decided.

Pursuant to the March 2016 remand, a VA medical opinion was provided in December 2016 in effort to determine whether the Veteran's claimed gastrointestinal disorder, sleep disorder, and headaches are related to service.  After reviewing the claims file, the clinician opined that the Veteran's gastrointestinal disorder, headaches, and sleep disturbance are diagnosed conditions.  She explained that the Veteran's gastritis, gastroesophageal reflux disease (GERD), and migraines were diagnosed in 2008.  She also concluded that the Veteran's sleep disturbance is likely secondary to his mental health conditions.  She reasoned that the Veteran's conditions are less likely to be secondary to exposure to environmental hazards.  She also indicated that there are no mentions of gastrointestinal disorder, sleep disturbance, and headaches in the service treatment records and therefore, these conditions did not have an in-service onset.  In January 2017 and April 2017, the clinician provided addendum opinions and stated that the Veteran's conditions did not manifest within one year of discharge from service or have their onset during active duty.  She explained that the Veteran's complaint of a headache in September 1979 was associated with an earache and sore throat and was diagnosed as tonsillitis.  She indicated that the headache was self-limiting and not permanent in nature.  The clinician also explained that the Veteran's December 1990 complaint of stomach problems with diarrhea and vomiting was most likely due to viral enteritis.  She noted that there are no medical records stating that sleep disturbance manifested within one year of the Veteran's discharge from service.  

Significantly, however, service treatment records document complaints and treatment for constant abdominal pain, vomiting, increased number of stools, and loose stools in December 1989 and December 1990.  The Veteran was also assessed with viremia, gastroenteritis, and possible irritable bowel syndrome.  The Veteran also complained of headaches in January 1985 and June 1990.  As such, the Board finds that December 2016, January 2017, and April 2017 opinions are inadequate.  The clinician's statements regarding the Veteran's diagnoses and treatment are inaccurate and reflect a less than thorough review of the evidence.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  As the VA clinician's opinion is based on an inaccurate factual basis, an addendum opinion is necessary prior to adjudication of the claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).

In addition, the claims file contains correctional center treatment records dating up to January 2014.  As there may be outstanding records dated after January 2014 pertinent to the Veteran's claim, a request should also be made for all outstanding medical records from January 2014 to the present from the Southeastern Tennessee State Regional Correctional Facility (Health Services) and/or State of Tennessee Department of Correction.  38 C.F.R. § 3.159(c)(1).  

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record.  This includes records of treatment from the Southeastern Tennessee State Regional Correctional Facility (Health Services) and/or State of Tennessee Department of Correction dated from January 2014 to the present.  

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).  

2. Obtain and associate all treatment records from Southeastern Tennessee State Regional Correctional Facility and/or State of Tennessee Department of Correction with the Veteran's claims file.  If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

3. After completing the above actions and associating any additional records with the claims file, obtain a VA opinion from a clinician other than the clinician who rendered the previous opinions to determine the nature and etiology of the Veteran's gastrointestinal disorder, sleep disorder, and headache disorder.  The Veteran's claims file, to include a complete copy of this REMAND, must be made available to a clinician familiar with Gulf War illness.  The clinician should:  

a. Identify all currently diagnosed gastrointestinal disorders.  

In doing so, the clinician should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from February 2008 onward.  The gastrointestinal disorder need not be present at the time of the evaluation; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the evaluation.  

The Board notes that the record shows past diagnoses of irritable bowel syndrome, gastritis, gastroenteritis, and GERD.  All of these disorders should be considered and discussed, in addition to any other disorders that may be found.  If any specific disorder is ruled out, a complete explanation must be provided.  That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence.  If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why.

b. With respect to each diagnosed gastrointestinal disorders, is the disorder a functional gastrointestinal disorder? 

For VA purposes, specific functional gastrointestinal disorders include, but are not limited to, 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.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis.  

c. If the Veteran has a gastrointestinal disorder other than a functional gastrointestinal disorder, is the Veteran's gastrointestinal disorder at least as likely as not (50 percent or greater probability) related to service? 

d. Please state whether the symptoms of each of the conditions claimed by the Veteran: (1) gastrointestinal disorder, (2) headaches, and (3) sleep disturbances are attributable to a known clinical diagnosis.  If the Veteran does not now have, but previously had any such condition, when did that condition resolve?

e. Is the Veteran's disability pattern (gastrointestinal disorder, headaches, and sleep disturbances) consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis?

f.  If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia, including exposures to pesticides, bromide pills, sarin gas exposure, or fumes from burning oil fields, munitions dumps, and/or latrine waste. 

g.  Is it at least as likely as not (50 percent probability or greater) that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War?

h. A rationale for any opinions expressed should be set forth.  If the clinician cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.S. §§ 5109B, 7112 (LexisNexis 2017).



_________________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.S. § 7252 (LexisNexis 2017), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).



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