Citation Nr: 18160604
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 16-16 709
DATE:	December 28, 2018
ORDER
The petition to reopen a claim of entitlement to service connection for a psychiatric disorder is granted. 
 The petition to reopen a claim of entitlement to service connection for a sleep disorder is granted.
The claim for service connection for headaches is denied.

REMANDED
The claim for service connection for an acquired psychiatric disorder, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded.
The claim for service connection for a sleep disorder, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded.
The claim for service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded.
The claim for service connection for multiple joint disease, to include as due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, is remanded.
FINDINGS OF FACT
1. In a January 2002 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for dysthymic disorder (claimed as insomnia); the Veteran did not perfect an appeal as to that decision. 
2. The additional evidence received since the January 2002 decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for psychiatric and sleep disorders; the evidence raises a reasonable possibility of substantiating the claim.
3. The competent lay and medical evidence is against a finding that his headaches are related to the Veteran’s military service, to include as a symptom of an undiagnosed illness.
CONCLUSIONS OF LAW
1. Evidence received since the January 2002 rating decision that denied service connection for dysthymic disorder, claimed as insomnia, is new and material, and the claim is reopened. 
2. A headache disability was not incurred or aggravated in service; the headache disability does not constitute an undiagnosed illness. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 
Petition to Reopen Claim for Psychiatric and Sleep Disorders
In the April 2014 decision, the RO adjudicated the claims for service connection for psychiatric and sleep disorders on the merits. In February 2016, the RO issued a Statement of the Case (SOC), again denying the claims for psychiatric and sleep disorders on the merits. However, in an unappealed January 2002 rating, the RO denied service connection for dysthymic disorder claimed as insomnia on the merits, which became final. The Board finds that the scope of the claim for service connection for dysthymic disorder claimed as insomnia has not changed and an analysis of the claims on the basis of whether new and material evidence had been received is appropriate. Cf. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1 (2009); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009).
New and material evidence is necessary to reopen claims for benefit previously denied that became final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  After review of the evidence submitted since the claims for psychiatric disability and a sleep disability were denied, the Board finds that this evidence is new and material and the petitions to reopen are granted.
Service Connection for Headaches
The Veteran served on active duty in the Army from August 1989 to December 1991. He was awarded a Southwest Asia Service Medal with 2 Bronze stars. His military occupational specialty (MOS) was crane operator.
In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).
To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).
Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be awarded for a “chronic” disease when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same disease; or (2) a listed chronic disease (under 38 C.F.R. § 3.309 (a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran’s present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309 (a)). A neurological disorder (headaches) is listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Significantly, in this case, no chronic disease (headaches) was identified during service. 
With respect to his claim for service connection for headaches arising from his Southwest Asia service, he generally asserts a claim for service connection for disability due to an undiagnosed illness. 
Service connection may be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air 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. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a)(1).
A “Persian Gulf veteran” is one who served in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. A “qualifying chronic disability” includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi-symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection.38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i). 
Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, nonmedical indicators that are capable of independent verification. 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. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a)(2)(5). 
Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c).
With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). 
Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the veteran’s case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the veteran’s case does not preclude compensation under § 3.317. VAOPGCPREC 8-98 (Aug. 3, 1998). 
When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of an analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). 
The evidence establishes that the Veteran served in the required geographical area during his second period of active duty for consideration of claims for service connection due to an undiagnosed illness. See 38 C.F.R. § 3.317 (e). 
Reviewing the Veteran’s medical history, the service treatment records (STRs) do not show complaints, diagnoses or treatment for headaches. 
VA outpatient records beginning in June 2014 show that the Veteran was referred for VA medical evaluation due to complaints of whole body pain including headaches, multiple joint pain, skin rashes, gastrointestinal discomfort and memory issues. Neurological testing failed to explain the etiology of the Veteran’s headaches. 
VA examination was conducted in January 2002. The examiner concluded that the Veteran’s headaches were unrelated to his Southwest Asia service. Further, the Veteran does not have a disability pattern related to his headaches. His headache(s) is a condition with a specific diagnosis. The rationale was that the headaches were more likely due to alcohol and tobacco use. In addition, the examiner noted that the most recent study had found insufficient evidence to link such problems to exposure during or service in Southwest Asia.    
Initially, the Board notes that the VA examiner considers that headache is a specific diagnosis.  The record weighs against a finding that the headache disability experienced by the Veteran qualifies as an undiagnosed disability under 38 C.F.R. § 3.317. 
In considering his claim on a direct basis, the VA examiners have diagnosed headaches, which satisfies the first element of the laws and regulations pertaining to service connection. 
However, the problem with the Veteran’s claim concerns evidence of in-service incurrence or aggravation in service. The service treatment records do not show complaints, findings, or diagnoses regarding headaches, and the Veteran denied a history of headaches at separation. The vascular and the neurological systems were considered clinically normal. This is probative evidence against his claim. 
There is also no indication the Veteran had headaches to a compensable degree (meaning to at least 10-percent disabling) within this prescribed 1-year presumptive period following the conclusion of his service. The November 1991 separation examination revealed normal neurological system and the Veteran failed to report any ongoing headache problem. Rather, he specifically denied that he experienced frequent or severe headaches. Additionally, the Veteran has failed to provide any competent medical evidence evidencing a diagnosis of chronic headaches (tension or migraine) within a year of his discharge from service. Thus, service connection for headaches cannot be granted on a presumptive basis. 38 C.F.R. § 3.307 (a)(3), 3.309(a). 
It is additionally worth noting that the earliest clinical evidence documenting treatment for headaches is in 2014. This is approximately 23 years after service discharge, an extended period of time. The mere fact that there is no documentation of either condition for so long after service is not dispositive of this claim, but it is nonetheless probative evidence to be considered in deciding this claim and may be viewed as evidence against it. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).
More importantly, though, after reviewing the e-folders for the pertinent medical and other history there is no nexus opinion by any medical professional that links the headaches to service. The Veteran has not provided any competent medical evidence of a nexus between current disability and disease or injury during service. 
The Board has considered the lay statements of the Veteran, as noted he reported at VA examination that he has had headaches since 1991. However, the Board find his statements at service discharge, wherein he specifically denied frequent or severe headaches more probative. Furthermore, the record contains private as well as VA examination and treatment reports that date back to 1991. These records do not contain any complaints, findings or diagnoses of headaches. 
The competent evidence does not link the currently diagnosed headaches to active service or any claimed environmental exposure experienced therein. The only probative evidence addressing the etiology of the Veteran’s headaches is the VA medical opinion which indicates that the Veteran’s headaches are related to his alcohol and nicotine use, and not to his military service. The preponderance of the evidence is against the claim of entitlement to service connection for headaches. The benefit-of-the-doubt rule does not apply and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
REASONS FOR REMAND
Multiple Joint Pain
The Veteran claims that he has multiple joint pain that results from his military service in Southwest Asia. A December 2014 request from the Office of Inspector General for the United States Postal Service shows that the Veteran was receiving benefits through the Department of Labor Office of Workers’ Compensation Program for related injury to his neck, shoulder, and back.  As these government records may be relevant to his current claim, these records should be sought.
 
Gastrointestinal Disorder 
A review of the e-file indicates that clinical records that pertain to VA treatment for gastric complaints are missing. Specifically, a VA GI clinic consultation report dated in September 2014 shows that he received treatment for chronic gastritis in October 2008. These records have not been associated with the e-file. 
Moreover, a VA examiner in 2016 concluded that there was no evidence of a chronic gastric disorder.  However, the examiner failed to comment on the September 2014 VA findings of gastritis secondary to pain medications. Further commentary is needed.  
Psychiatric and Sleep Disorders
It also appears that e-file does not contain relevant VA outpatient records that pertain to the Veteran’s sleep and psychiatric disorders. Specifically, a September 2001 VA examination report refers to VA treatment for complaints of insomnia in 1994. In addition, the Veteran submitted partial VA outpatient records in October 2014 which includes a June 1995 VA mental health consultation report.  Still further, a September 2015 VA mental health medication management note refers to mental health treatment in 2007 and 2012. These VA records have not been associated with the e file.
The record contains favorable and unfavorable medical opinions regarding the Veteran’s claim for service connection for a psychiatric disability. For the most part the favorable opinions are based on the Veteran’s report of a “tour of duty in Iraq”. (See January 2016 contract examination report and private medical report received in April 2016.) While it is shown that he served in Southwest Asia, it is not clear if he served in a theatre of War to include Iraq.  Moreover, in this regard, over the years the Veteran has given inconsistent statements regarding his medical history and combat status.  For example, at the January 2016 examination the Veteran reported a history of depression since 1990, however this is contradicted by his denial of depression or excessive worry at the November 1991 separation examination. He also denied psychiatric symptoms at VA examination in June 1992. 
Regarding his combat status, the June 1995 mental health consultation report, shows that the Veteran denied a history of combat or traumatic event. Then in September 2014, he reported that he was not part of invasion but took a bus trip to Iraq to survey damage. In September 2015, he reported that he was in stressful situations in Desert Storm. At the January 2016 examination, he reported a tour of duty in Iraq. In a private report received in April 2016, the Veteran reported being exposed to SCUD attacks. This report includes a diagnosis of PTSD. 
To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). During the appeal period, the criteria of DSM-IV initially applied but, following a revision to the DSM, VA now recognizes the application of DSM-V. See 79 Fed. Reg. 45099 (August 4, 2014). 
If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(1); see also 38 U.S.C. § 1154 (b).
In 2010, VA amended its adjudication regulations which eliminated the requirement of evidence corroborating the occurrence of the claimed in-service stressor in claims in which PTSD was diagnosed in service and in some claims in which the claimed stressor is related to the claimant’s fear of hostile military or terrorist activity.
Specifically, 38 C.F.R. § 3.304 (f) was amended to read that if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.
“Fear of hostile military or terrorist activity” means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 
To assist the Board in determining whether any of the Veteran’s claimed stressors are consistent with the places, types, and circumstances of his service, on remand, the RO should contact the JSRRC or other appropriate entity to research the Veteran’s claimed in-service stressors to determine if there is any information in this regard. The Veteran’s claim for service connection for a sleep disorder is intertwined with the claim for a psychiatric disorder, as such, this issue is deferred. 
The matters are REMANDED for the following action:
1. Obtain VA records that pertain to treatment for psychiatric, sleep and gastric disorders that date from 1994 to the present. This should include treatment records that pertain to treatment for insomnia in 1994; the June 1995 mental health consultation report; mental health treatment records dated in 2007 and 2012; and treatment records for chronic gastritis in October 2008.
2. Clarify from the Veteran the dates of his Workers’ Compensation claims filed regardless of whether it was granted or not. Then request that he submit any necessary releases required to obtain a copy of the determination associated with his claim for Workers’ Compensation, as well as all medical records underlying that determination, and undertake appropriate action to obtain such documents. A copy of any records obtained, to include a negative reply, should be included in the e-file.
3. The Veteran should be asked to provide as much information as possible regarding his claimed stressors, particularly specific dates, full names of the people involved, and places.
4. Should the Veteran provide sufficient information regarding his claimed stressors (pursuant to directive #3), request that the U.S. Army and Joint Services Records Research Center (JSRRC), or other official source, investigate and attempt to verify the Veteran’s alleged PTSD stressors, to include the alleged incident in which he was confined to a bunker due to SCUD attacks. If more detailed information is needed for this research, the Veteran should be given an opportunity to provide it. 
5. After completion of directives #1-4, schedule the Veteran for VA examination by an appropriate medical professional in connection with his claims of entitlement to service connection for psychiatric, sleep and gastric disorders. The entire e file must be reviewed by the examiner. 
The examiner(s) should then provide the following medical opinions:
Psychiatric Disabilities
The examiner is asked to determine if the Veteran meets the diagnostic criteria for a diagnosis of PTSD or any other psychiatric disorder. The examiner must clearly identify each psychiatric disorder found to be present (to include depression and PTSD).
If the examiner finds the Veteran does not meet the diagnostic criteria for a diagnosis of PTSD, or any other psychiatric diagnosis, the examiner must explain why the diagnoses of PTSD, or any other psychiatric diagnoses, reflected in the record during the course of the appeal, are not valid diagnoses. 
The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorders (to include depression and PTSD), either commenced during or are otherwise etiologically related to the Veteran’s period of service to include secondary to (caused or aggravated) his service connected disabilities.
If there are symptoms not attributable to a known diagnosis, are these symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness?
If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based, to include whether the stressor is related to fear or hostile military or terrorist activity.
Gastrointestinal Disorders
The examiner must identify all disorders of the gastrointestinal system found to be present.
The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) any current gastrointestinal disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. 
If there are symptoms not attributable to a known diagnosis, are these symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness?
The examiner should comment on the Veteran’s multiple treatments for gastrointestinal complaints during service (to include in June 1991 for viral gastroenteritis as well as treatment from January 1990 to July 1990 for dysentery and gastroenteritis).  As well the examiner should consider and comment of the September 2014 VA examiner’s statement regarding the possibility of gastritis secondary to medications taken for service connected disabilities.
Sleep Disorders
The examiner must identify all sleep disorders found to be present.
The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) any current sleep disorder (including obstructive sleep apnea and insomnia)) had its clinical onset during active service or is related to any in-service disease, event, or injury. 
If no, the examiner should express an opinion as to whether any diagnosed sleep disorder (versus a symptom of a psychiatric disability) is related to the psychiatric disorder or aggravated by the psychiatric disorder? 
If there are symptoms not attributable to a known diagnosis, are these symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness?
A complete rationale should accompany any opinion provided.

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A.D. Jackson, Counsel 

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