Citation Nr: 18160578
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-00 003A
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the claim of service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), is reopened, and to that extent the appeal is granted.  
REMANDED
Entitlement to service connection for a gastrointestinal disorder, to include GERD, is remanded.
Entitlement to service connection for a disorder characterized by periodic limb movement syndrome (PLMS), to include as a chronic qualifying disability under the provisions of 38 C.F.R. § 3.317, is remanded.
Entitlement to service connection for hypertension, to include as secondary to a service-connected anxiety disorder is remanded.
Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected anxiety disorder, is remanded.
Entitlement to an initial compensable rating for service-connected ocular migraines is remanded.
Whether new and material evidence has been received in order to reopen claims of service connection for disorders manifested by muscle pain, joint pain, and chronic fatigue, to include as claimed as an undiagnosed illness under 38 C.F.R. § 3.317, and/or as fibromyalgia, gouty arthritis, and/or chronic fatigue syndrome, is remanded.  
Entitlement to an effective date prior to December 10, 2016, for the award of a 50 percent evaluation for service-connected anxiety disorder is remanded.  
FINDINGS OF FACT
1. The May 2015 rating decision that denied service connection for GERD is final.  
2. The evidence received since the May 2015 rating decision with respect to a claim of service connection for a gastrointestinal disorder, to include GERD, raises a reasonable possibility of substantiating the claim.  
CONCLUSIONS OF LAW
1. The May 2015 rating decision that denied service connection for GERD is final.  38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
2. The criteria for reopening the claim of service connection for a gastrointestinal disorder, to include GERD, are met.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from September 1987 to September 1991.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and May 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  
A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103.  The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal.  38 C.F.R. § 20.204(c).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108.  
New evidence is defined as existing evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Historically, the Veteran filed his initial claim of service connection for GERD in April 2014, and the AOJ denied service connection for GERD in a May 2015 rating decision; the Veteran was sent a notification letter of that decision the same day.  The Veteran did not submit any additional evidence as to his GERD, nor did he submit a notice of disagreement with that claim within one year of that notification letter.  Accordingly, the May 2015 rating decision is final.  See 38 C.F.R. §§ 20.200, 20.202, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010).  New and material evidence is therefore required to reopen the claim of service connection for a gastrointestinal disorder, to include GERD.  See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.
The evidence received since the May 2015 rating decision raises a reasonably possibility of substantiating a claim and necessitates obtaining a VA examination, as will be discussed in the Remand section below.  Accordingly, the claim is reopened and to that extent the appeal is granted at this time.  See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim).
REASONS FOR REMAND
Initially, the Board reflects that the Agency of Original Jurisdiction (AOJ) awarded service connection for an anxiety disorder, effective April 18, 2014, in a December 2016 rating decision; the AOJ assigned a 10 percent evaluation from April 18, 2014 through December 9, 2016, and a 50 percent evaluation for the period beginning December 10, 2016.  The Veteran submitted a Notice of Disagreement, VA Form 21-0958, in June 2017, in which he argued that the 50 percent evaluation should be assigned throughout the entire appeal period.  Additionally, the AOJ denied reopening service connection for fibromyalgia and gouty arthritis, respectively, in September 2017 and January 2018 rating decisions.  In a September 2018 Notice of Disagreement, VA Form 21-0958, the Veteran indicated that he disagreed with the denial of his muscle and joint pain.  The Board has recharacterized these claims on appeal as above, in light of the Veteran’s statements with respect to his claimed disorders.  As of this decision, no statement of the case as to the fibromyalgia, gouty arthritis or anxiety disability claims has been issues.  Accordingly, the Board finds that they must be remanded at this time in order for such to be accomplished.  See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c).
With regards to the GERD and PLMS claims, in a December 2014 statement, the Veteran noted that while in service, he regularly went to sick call with complaints of swollen glands, digestive problems, headaches, fatigue, joint pain, lack of mental concentration, and overall poor health, which ultimately culminated in him being hospitalized at Fort Campbell prior to his separation from service.  While the service treatment records associated with the claims file document complaints of digestive problems and headaches in service, the Board notes that there are no records of the Veteran’s claimed hospitalization at Fort Campbell of record.  A remand is therefore required to obtain any outstanding service treatment records, to include any treatment records from the hospital at Fort Campbell.  
Additionally, the Veteran underwent a May 2015 VA Gulf War examination which included examinations to address his claimed GERD and sleep symptoms, including PLMS.  The examiner attributed the Veteran’s sleep impairment to a diagnosis of hypoxia during sleep and periodic limb movements, but concluded that the condition was less likely than not related to service, as it was more likely caused by factors including the Veteran’s COPD, high body mass index (BMI), poor sleep hygiene, and periodic limb movement disorder.  With respect to the Veteran’s claimed GERD, the examiner provided a diagnosis of GERD in connection with an April 2015 UGI series, but concluded that it was not caused by or related to Gulf War environmental exposure, as it was diagnosed 24 years after separation, that it was not uncommon for the general population, and was most likely caused by and related to incompetent esophageal sphincter and BMI.  
The Board notes that in addition to his own lay statements regarding continuity of symptomatology with respect to the symptoms reported above, the Veteran also submitted a number of lay statements from his family members and his employer regarding his claimed symptoms.  Of particular note are two April 2015 lay statements from the Veteran’s brother and the Veteran’s mother, indicating that he experienced fatigue, gastrointestinal symptoms, joint pain, muscle pain, difficulty focusing and concentrating, memory problems, and other symptoms at least within a year of separation from service.  However, while the May 2015 examiner noted some of the Veteran’s lay contentions with respect to the onset and continuity of symptomatology, the examination report makes no mention of the lay statements referenced above.  This is of particular importance as the examiner appears to attribute many of the Veteran’s claimed symptoms to conditions which developed long after service, and makes reference to the fact that these conditions developed or were diagnosed after service in support of his negative etiology opinions.  
The Veteran subsequently underwent a May 2017 examination to address, among other things, the Veteran’s claimed GERD and PLMS.  The examiner ultimately concluded that the Veteran did not have a diagnosis of either GERD or PLMS, stating that the Veteran’s May 2017 UGI study was returned as normal, and that the amount of leg movement measured during the May 2015 sleep study was considered a normal finding, further noting that current medical literature has established that periodic limb movements do not contribute to any symptomatology that was previously referenced.  However, the May 2017 examiner failed to address the Veteran’s prior May 2015 diagnosis of GERD, and while the examiner appears to indicate that the Veteran’s claimed periodic limb movements would not cause chronic fatigue and sleep disturbances as previously indicated, the examiner did not explain whether those symptoms could be attributed to another diagnosed disability or whether they constituted an undiagnosed illness of unexplained or partially explained etiology.  Additionally, as with the May 2015 examination, no discussion is made of the April 2015 lay statements concerning the onset of the Veteran’s claimed symptoms.  
The Veteran also underwent a September 2017 VA fibromyalgia examination in which the examiner attributed the Veteran’s claimed fatigue and sleep disturbance to conditions such as vitamin D deficiency, gouty arthritis, degenerative arthritis of the spine, arthritic changes of the feet, obesity, impaired fasting glucose, hypoxia during sleep with periodic limb movement, and an anxiety disorder and PTSD.  The examiner does not appear to provide any other rationale or explanation in support of that etiology opinion.  Additionally, that examiner did not address the prior VA examiners’ findings and conclusions, particularly regarding the presence of GERD and/or PLMS.  Moreover, it is unclear whether the September 2017 VA examiner was indicating that some of the Veteran’s gastrointestinal and limb movement symptomatology are not separate and distinct disorders but are rather due to his service-connected psychiatric disability, or whether such are separate disorders which are secondary to his psychiatric disability.  Again, as with the other VA examinations discussed above, no mention is made of the Veteran’s family’s lay statements in the September 2017 VA examination report.
For the foregoing reasons, the Board concludes that a remand is necessary to obtain a new VA examination to assess the nature and etiology of the Veteran’s claimed gastrointestinal and PLMS disorders.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise).
Respecting the hypertension and erectile dysfunction claims, the Veteran has claimed that those disorders are related to his service-connected anxiety disability.  In February 2017, the Veteran underwent a VA examination addressing the nature and etiology of his claimed hypertension and erectile dysfunction disorders, in which the examiner concluded that while the Veteran had current diagnoses of essential hypertension and erectile dysfunction, both disorders were less likely than not proximately due to or the result of the Veteran’s anxiety disorder.  With respect to the Veteran’s hypertension, the examiner noted that there were no objective findings indicating that the Veteran’s anxiety was the cause of his hypertension, and instead concluded that the Veteran’s other risk factors including obesity, a sedentary lifestyle, tobacco use history, and alcohol abuse, far outweighed anxiety alone as a risk associated with the Veteran’s hypertension.  The examiner similarly concluded that the Veteran’s risk factors of tobacco use disorder, alcohol use disorder, hypertension, medication, obesity, increasing age, and a low testosterone level far outweighed anxiety alone as the possible cause of the Veteran’s erectile dysfunction.  Additionally, in a May 2017 VA examination, the examiner provided addendum opinions with respect to the Veteran’s hypertension and erectile dysfunction to address articles submitted by the Veteran concerning the relationship between hypertension and erectile dysfunction and anxiety.  The examiner concluded that neither hypertension nor erectile dysfunction were caused or aggravated by the Veteran’s service-connected anxiety, noting that neither article submitted was a peer-reviewed scientific article, and further stating that the opinions submitted on the February 2017 VA examination remained unchanged.
The Veteran’s VA treatment records document that the Veteran has been taking medication in connection with his psychiatric disability, including Lexapro, Prazosin, Remeron, and hydroxyzine.  An August 2017 VA psychiatric tele-mental health note indicated that the Veteran reported that the Veteran had been experiencing sexual side effects when taking Lexapro, and further indicated that possible side effects of antidepressants included sexual dysfunction and that possible side effects of mirtazapine included hypo- or hypertension.  The February 2017 VA examiner noted that the Veteran’s prescription medication as a possible cause of his erectile dysfunction, but otherwise, neither the February 2017 nor the May 2017 VA opinions directly address the Veteran’s psychiatric medication and its possible impact on the Veteran’s current hypertension and erectile dysfunction.  Additionally, the Board notes that in a December 2016 contract psychiatric examination, the Veteran reported that he previously drank every day to self-medicate in connection with his anxiety disability.  However, while the February 2017 examiner noted the Veteran’s past use of alcohol as a possible alternative cause for his current hypertension and erectile dysfunction, no discussion was made with respect to the possible connection of his alcohol use and his anxiety disability.  
Thus, for the foregoing reasons, a remand is required to obtain a new VA examination to address the nature and etiology of the Veteran’s hypertension and erectile dysfunction disorders.  See Barr, supra; Kowalski, supra.  
Regarding the headache disability, in an August 2018 VA primary care provider note, the Veteran stated that he was experiencing increased migraines, and elaborated in a later August 2018 VA primary care provider note that the Motrin he previously used to treat his migraines was not working.  In light of this evidence of a potential worsening of his headache disability, the Board finds that a remand is necessary in order to obtain another VA examination that adequately addresses the current severity of that disability.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).
On remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Furnish to the Veteran and his representative a statement of the case with regard to the claims to reopen service connection for a disorder manifested by muscle pain, joint pain, and chronic fatigue, to include as claimed as an undiagnosed illness under 38 C.F.R. § 3.317, and/or as fibromyalgia, gouty arthritis, and/or chronic fatigue syndrome, and an effective date prior to December 10, 2016, for the award of a 50 percent evaluation for service-connected anxiety disorder.  The issues should be returned to the Board only if a timely substantive appeal is received.
2. Obtain any and all VA treatment records not already associated with the claims file from the Biloxi and Pensacola VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.
3. Obtain, through official sources, any and all hospitalization records respecting the Veteran from the Fort Campbell Hospital.
4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether he has any gastrointestinal disorders, including GERD, that are related to his service or a service-connected disability.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner should state any and all gastrointestinal disorders found, to include GERD.  The examiner should additionally address whether any reports of gastrointestinal symptomatology that is not otherwise accounted for by a diagnosed condition is a qualifying chronic disability due to either an undiagnosed illness or a chronic multisymptom illness under the provisions of 38 C.F.R. § 3.317.  If the examiner does not find any current disorder or symptoms related to a qualifying chronic disability, the examiner should discuss whether the Veteran has ever had any such gastrointestinal disorder/symptomatology at any time during the appeal period.  
For any identified gastrointestinal disorder, including GERD, qualifying chronic disability under section 3.317 found, including any resolved disorders, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include his service in Southwest Asia under the provisions of 38 C.F.R. § 3.317.  
The examiner must specifically address the previous VA examination reports and the lay statements from the Veteran, his brother, and his mother that are associated with the claims file.  
Next, for any disorders found that is not directly related to service, the examiner should also opine whether any gastrointestinal disorders at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected disabilities, particularly his psychiatric disability and any symptomatology associated with that disability.  The examiner is reminded that he or she must address both prongs (a) and (b) above.
In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
5. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether he has any periodic limb movement syndrome/disorder (PLMS) that is related to his service or a service-connected disability.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner should state any and all limb movement disorders found, to include PLMS.  The examiner should additionally address whether any reports of periodic limb movement symptomatology, particularly during sleep, which is not otherwise accounted for by a diagnosed condition is a qualifying chronic disability due to either an undiagnosed illness or a chronic multisymptom illness under the provisions of 38 C.F.R. § 3.317.  If the examiner does not find any current disorder or symptoms related qualifying chronic disability, the examiner should discuss whether the Veteran has ever had any such disorder/symptomatology at any time during the appeal period.  
For any identified periodic limb movement disorder/PLMS or qualifying chronic disability under section 3.317 found, including any resolved disorders, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include his service in Southwest Asia under the provisions of 38 C.F.R. § 3.317.  
The examiner must specifically address the previous VA examination reports and the lay statements from the Veteran, his brother, and his mother that are associated with the claims file.  
Next, for any disorders found that is not directly related to service, the examiner should also opine whether any such disorders at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected disabilities, particularly his psychiatric disability and any chronic sleep impairment symptomatology associated with that disability.  The examiner is reminded that he or she must address both prongs (a) and (b) above.
In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
6. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his hypertension is due to his military service or his service-connected psychiatric disability.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted.
After review of the claims file and examination of the Veteran, the examiner should state whether the Veteran’s current hypertension at least as likely as not (50 percent or greater probability) began in service or within one year of discharge therefrom, or is otherwise the result of military service.  
Specifically, the examiner should consider any noted blood pressure readings in service, or within one year after discharge therefrom.  The examiner should address whether any readings during service are initial manifestations of the Veteran’s hypertension.  
Next, if the examiner determines that the Veteran’s hypertension is not directly related to service, the examiner should also opine whether any hypertension at least as likely as not was either ((a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected psychiatric disability, to include any side effects due to the medications he takes for that disability.  The examiner is reminded that he or she must address both prongs (a) and (b) above.
In addressing the above, the examiner should address any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
7. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his erectile dysfunction is due to his military service or his service-connected psychiatric disability.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted.
After review of the claims file and examination of the Veteran, the examiner should state whether the Veteran’s current erectile dysfunction at least as likely as not (50 percent or greater probability) began in service, or is otherwise the result of military service.  
Next, if the examiner determines that the Veteran’s erectile dysfunction is not directly related to service, the examiner should also opine whether his erectile dysfunction at least as likely as not was either (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected psychiatric disability, to include any side effects due to the medications he takes for that disability.  The examiner is reminded that he or she must address both prongs (a) and (b) above.
In addressing the above, the examiner should address any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
8. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his headaches.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Specifically, the examiner should discuss the frequency of the Veteran’s attacks, whether they are characteristic prostrating attacks, and the impact on his economic adaptability, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
 
MARTIN B. PETERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Reed, Associate Counsel 

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