MUSCULOSKELETAL

MICHAEL E. KILCOYNE · 2023 · Case ID: 23068265

MIXED

Summary

The veteran, who served in the U.S. Army from October 1985 to November 1992, including service in the Southwest Asia theater of operations, appeals the denial of service connection for an upper extremity disability manifested by joint pain, numbness, tingling, or coldness. The Board found the evidence did not support a diagnosis of an upper extremity disability with these symptoms, noting inconsistent reporting by the veteran and a lack of objective findings in service treatment records or subsequent examinations. While the veteran claimed generalized joint pain, later clarified to be shoulder pain, and reported numbness/tingling/coldness in his hands, the Board found no consistent pattern or diagnosis attributable to these symptoms. VA examinations confirmed osteoarthritis in the shoulders and cervical spine, but examiners opined these were not service-related due to a lack of in-service complaints and a long post-service manifestation. The Board denied service connection for the upper extremity disability. The case involves remands for further development on headache disorder, sleep apnea, and gastrointestinal disorder claims, with specific instructions for obtaining opinions on the relationship between these conditions and the veteran's service-connected PTSD, hypertension, and left ankle disability.

Rationale

No consistent diagnosis for reported symptoms; Inconsistent reporting of symptoms by veteran; Lack of objective findings in service treatment records; Examiners opined diagnosed shoulder/cervical arthritis not service-related

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-65 830

Full Decision Text

Citation Nr: 23068265
Decision Date: 12/29/23 Archive Date: 12/29/23

DOCKET NO. 17-65 830
DATE: December 29, 2023

ORDER

Entitlement to service connection for an upper extremity disability manifested by joint pain, numbness, tingling, or coldness is denied.

REMANDED

Entitlement to service connection for a headache disorder, to include as secondary to the Veteran's service-connected disabilities, is remanded.

Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected disabilities, is remanded.

Entitlement to service connection for a gastrointestinal disorder, claimed as irritable bowel syndrome (IBS), to include as secondary to the Veteran's service-connected disabilities, is remanded.

FINDINGS OF FACT

1. The medical evidence of record persuasively weighs against finding that the Veteran has a disability manifested by numbness, tingling, or coldness of the upper extremities.

2. The evidence of record persuasively weighs against finding that the arthritis diagnosed in the Veteran's shoulders began during active service, initially manifested within one year of the Veteran's separation from active service, or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for an upper extremity disability manifested by joint pain, numbness, tingling, or coldness are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1985 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided hearing testimony before the undersigned in June 2021. A transcript of that hearing is within the record before the Board.

Following the hearing, the Board issued a decision in November 2021. The Board found new and material evidence had been received for the issues of entitlement to service connection for hypertension, upper extremity joint pain, and sleep apnea. The Board then remanded the left ankle increased rating issue, as well as all of the service connection issues, for additional evidentiary development. The RO was to complete the development attempts to obtain any outstanding service treatment records, as well as obtain authorization from the Veteran to assist with obtaining relevant private treatment records. In November 2021, the RO received information indicating all available service records had been uploaded into the Veteran's file. The RO received a response from the Records Management Center in January 2022 indicating no additional records were available. The RO then sent the Veteran a letter in compliance with 38 C.F.R. § 3.159(e) in January 2022. As for the private records, the RO sent the Veteran a letter in November 2021 requesting he complete a VA Form 21-4142 for his private treatment providers. The Veteran did not respond. The Veteran was also afforded the required VA examinations. The RO awarded service connection for hypertension in April 2022. This issue is no longer before the Board. In November 2022, the Board issued a deciding denying an increased rating for the left ankle disability and denying service connection for tinnitus and bilateral hearing loss. The Board remanded the issues of entitlement to service connection for sleep apnea, a gastrointestinal disorder, a headache disorder, and joint pain, upper extremities. These issues are now again before the Board.

Service Connection - Upper Extremities

The Veteran contends service connection is warranted for joint pain, numbness, tingling and coldness in his upper extremities.

Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations 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 qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include
may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations 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 qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4).

Objective indications of a qualifying chronic disability include both signs and symptoms, 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)(3). Non-medical indicators include evidence such as time lost from work, the Veteran having sought treatment for his symptoms, and change in the Veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995).

An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014).

Here, the Veteran's DD Form 214 shows he had service in the Southwest Asia Theater of Operations from September 1, 1990 to June 9, 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e).

The Board has reviewed the claims file for evidence of the claimed disability. Private treatment records include a June 1997 right shoulder MRI with a notation of pain and numbness. The MRI was normal. July 1997 private treatment records show the Veteran was seen following an automobile accident and described right shoulder numbness. He reported right shoulder pain at an August 1997 visit. There was no additional evidence suggesting any ongoing numbness or other symptoms for many years after this.

In June 2011, the Veteran underwent a VA examination. The examiner noted that the Veteran's treatment records are without report of generalized joint pain, hand pain or muscle pain. The examiner also indicated that the muscle pain component of the Veteran's claim shows no particular pattern, but that the upper extremity muscle pains seem to be centered around his shoulder joints and not any pattern of generalized muscle pain. The examiner concluded that the upper extremity pain is likely related to a mechanical shoulder problem. No numbness was reported at this time.

VA clinical records are largely without any indication of upper extremity generalized pain or numbness. The Veteran reported to the emergency room in August 2014 reporting chest pressure and left arm pain. A September 2014 follow up with a cardiologist shows this described as chest pain that radiated to the left arm. This was not described as generalized joint pain or numbness in the upper extremities.

In August 2016, the Veteran listed his claims and generally described "joint pain" without any specificity. No numbness, tingling or coldness was noted. In November 2017, the Veteran reported having chronic pain in both shoulders.

At his June 2021 Board hearing, the Veteran clarified his joint pain claim to be a claim for his shoulders. He did not report numbness, tingling or coldness in his hands at this time, but he did suggest his shoulders have nerve problems. He reported falling off a cliff in 1996, although the Veteran's representative suggested that he fell off a cliff in Germany in 1987.

The November 2021 Board remand required an opinion that addressed the Veteran's reported upper extremity symptoms and determine whether a medical diagnosis is warranted to determine whether the claimed disability belongs to any of the following four disability patterns: (1) undiagnosed illness; (2) a diagnosable, but medically unexplained chronic multi symptom illness of unknown etiology; (3) a diagnosable, chronic, multi symptom illness with partially explained etiology; or (4)
ling or coldness in his hands at this time, but he did suggest his shoulders have nerve problems. He reported falling off a cliff in 1996, although the Veteran's representative suggested that he fell off a cliff in Germany in 1987.

The November 2021 Board remand required an opinion that addressed the Veteran's reported upper extremity symptoms and determine whether a medical diagnosis is warranted to determine whether the claimed disability belongs to any of the following four disability patterns: (1) undiagnosed illness; (2) a diagnosable, but medically unexplained chronic multi symptom illness of unknown etiology; (3) a diagnosable, chronic, multi symptom illness with partially explained etiology; or (4) a disease with a clear and specific etiology. For any diagnosed disorder, the examiner was to provide an opinion as to whether it is at least as likely as not related to the Veteran's active service, to include his service in the Persian Gulf.

In March 2022, the Veteran was afforded a VA examination. At this time, he first reported tingling in his hands and a cold feeling in his hands. He reported these symptoms started while he was in the military. He reported that the symptoms come and go and that they may be worsened by his non-service-connected congestive heart failure. The examiner noted that there is no evidence of a current peripheral nerve condition, and also noted that there was no shoulder disability noted in the record that could cause the symptoms the Veteran reported. In a separate opinion report, the examiner merely added that since there is no evidence of a diagnosed condition it is less likely than not that it was incurred in or is proximately related to the Veteran's military service.

In May 2022, the Veteran was afforded a VA examination of his shoulders and diagnostic testing confirmed the presence of osteoarthritis in both shoulders. This examiner discussed the Veteran's symptoms of dull shoulder pain with flares of occasional sharp pain with overhead use. Another May 2022 examination was ordered and included the diagnosis of cervical spine arthritis. The Veteran reported at this time that he experiences upper extremity pain and weakness occurring once a week and lasting one to two days. He did not report the numbness or tingling to this examiner. The examiner confirmed that there was no cervical radiculopathy present.

In a separate May 2022 opinion report, it was determined that the Veteran's shoulder and cervical spine disabilities were not at least as likely as not incurred in the Veteran's active service as the Veteran's service treatment records are silent for symptoms of these disabilities and there is no indication of the disabilities as present for many years after service. The examiner also confirmed that these disabilities are diagnosed and not a part of any multi symptom undiagnosed illness. As for the Veteran's symptoms of numbness, tingling, or pain, the examiner noted that no diagnosis of brachial neuritis has been made. The examiner recognized the reported symptoms but noted no diagnosis was made attributable to those symptoms.

The Veteran was also afforded a Gulf War General Medical examination in May 2022. This report suggested that there is no diagnosed illness for which no etiology was established; no additional signs and/or symptoms not addressed through the examinations obtained; and no additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multi symptom illness. There was no mention at all of the symptoms of numbness in the upper extremities, tingling in the upper extremities or the feeling of coldness the Veteran reported. These symptoms were not attributed to the diagnosed shoulder or cervical spine disability. Thus, the Board again remanded the matter in November 2022 for an opinion addressing the Veteran's reported upper extremity numbness, tingling and coldness in his hands.

In May 2023, a VA examiner reviewed the Veteran's claims file and noted that there is no evidence to support any findings of upper extremity numbness, tingling or coldness in the Veteran's hands during his active service. Thus, the examiner opined that there is no basis for finding any such disability is directly connected to the Veteran's active service. Further, the examiner noted that the coldness, tingling, and numbness is an undiagnosed condition. The examiner went on to state that the Veteran has no evidence of having a medical condition with these symptoms. The examiner referenced the Board hearing transcript and the various examination reports. The examiner noted several times the Veteran denied having tingling or numbness. The only reports of the symptoms were in relation to a claim for benefits, but not in the context of any treatment or evaluation. Thus, the examiner concluded that there is no evidence to support a diagnosis and "[a]s the condition has not been found to exist
is no basis for finding any such disability is directly connected to the Veteran's active service. Further, the examiner noted that the coldness, tingling, and numbness is an undiagnosed condition. The examiner went on to state that the Veteran has no evidence of having a medical condition with these symptoms. The examiner referenced the Board hearing transcript and the various examination reports. The examiner noted several times the Veteran denied having tingling or numbness. The only reports of the symptoms were in relation to a claim for benefits, but not in the context of any treatment or evaluation. Thus, the examiner concluded that there is no evidence to support a diagnosis and "[a]s the condition has not been found to exist it is less likely than not proximately related to a specific exposure event in SW Asia and it is less likely than not the result of toxic exposure."

With regard to the upper extremity numbness, tingling and coldness in his hands, as there is no diagnosis, the Veteran's signs and symptoms cannot be considered a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). The symptoms could potentially qualify as an undiagnosed illness; however, in this instance, as confirmed by the most recent VA examiner's evaluation of the evidence, there is no consistent report of the symptoms in the record. The Veteran denied having these symptoms at times and did not report having the symptoms at other times despite having the opportunity to do so. Moreover, at the Board hearing he attempted to clarify the claim as being one for the shoulders. He made no mention of numbness or tingling at that time. These symptoms were first reported at the March 2022 VA examination. As this report was inconsistent with the treatment records and the Board hearing testimony, and based upon the most recent VA examiner's findings, the Board finds the Veteran does not have a disability manifested by upper extremity numbness, tingling and coldness in his hands. Accordingly, presumptive service connection as an undiagnosed illness is not warranted.

The Board moves to consideration of whether any disability of the upper extremities that has been diagnosed are causally connected to the Veteran's active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

As noted above, the May 2022 VA examiner confirmed the presence of osteoarthritis in the Veteran's shoulders. Cervical spine arthritis was also confirmed. The VA examiner explained that the Veteran's shoulder and cervical spine disabilities were not at least as likely as not incurred in the Veteran's active service as the Veteran's service treatment records are silent for symptoms of these disabilities and there is no indication of the disabilities as present for many years after service.

Based upon the foregoing, service connection is not warranted for a disability manifested by pain, numbness, tingling or coldness in the upper extremities. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence in this case does not persuasively support the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F. 4th. 776 (Fed. Cir. Dec. 17, 2021). The appeal is denied.

RE
years after service.

REASONS FOR REMAND

Headache Disorder

Following the Board's most recent remand, the RO obtained several opinions related to the headache disorder claim. Among the opinions given in May 2023, a VA examiner stated that only a mental health provider can make an assessment as to whether the Veteran's service-connected PTSD aggravates his diagnosed muscle tension headaches. The record shows the RO obtained another opinion in August 2023. The clinician opined that the conditions of headache disorder and PTSD are not medically related. It was noted that a headache disorder and PTSD are separate entities entirely and noted that a "thorough review of medical literature failed to demonstrate a causal relationship." The Board finds this to be an opinion on causation, rather than aggravation. The symptoms of PTSD were not discussed and there was no discussion of whether PTSD symptoms aggravate muscle tension headaches. Moreover, the Board observes that the August 2023 opinion was provided by someone with the title, "Physician Assistant - General Practice." The opinion was not provided by a mental health practitioner as was indicated as necessary by the May 2023 clinician.

Moreover, the RO does not appear to have requested an opinion as to whether the Veteran's service-connected hypertension caused or aggravated the claimed headache disorder. This is of importance because the clinician who completed the August 2023 opinion felt it relevant to note that the Veteran was seen on May 17, 2013 with a notation that when his blood pressure is approximately 200, he has a headache; and when seen on May 1, 2014 it was with an indication that he had a headache for the past couple days, so he was presenting for a blood pressure check. This implies some relationship between the hypertension and the Veteran's headaches.

For these reasons, while the Board regrets the additional delay, another remand is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall v. West, 11 Vet. App. 268, 271 (1998).

Sleep Apnea

In December 2017, the Veteran's representative submitted a copy of a May 2016 statement from a private clinician. This statement confirmed the Veteran had been treating with "My Dr Now" since January 2015 for several health issues, to include snoring and somnolence. The clinician went on to opine that the Veteran's sleep apnea is at least as likely as not aggravated by his service-connected PTSD. The clinician indicated that the PTSD symptoms sometimes makes it difficult for the Veteran to tolerate his CPAP and also makes it difficult for the Veteran to sleep at all, which further worsens his daytime excessive somnolence related to his sleep apnea.

At his June 2021 Board hearing, the Veteran reported that, due to the sleep apnea, it is hard for him to breathe during sleep and sometimes he cannot go to sleep. He also confirmed that he "had to have the machine." The Board presumes this was reference to a CPAP machine, but the Board also notes the Veteran referred to it in the past tense. Thus, it is unclear whether the Veteran was currently using a CPAP machine. The testimony also raised the matter of whether the sleep apnea is due to or aggravated by the Veteran's service-connected PTSD.

The November 2021 Board remand then required an examination to confirm the presence of a sleep apnea diagnosis, and to obtain an opinion discussing whether the sleep apnea was proximately due to or aggravated by the Veteran's service-connected disabilities, which were PTSD and a left ankle disability at that time. The examiner was to consider the May 2016 private opinion.

In March 2022, a VA examiner confirmed the diagnosis as obstructive sleep apnea. The examiner noted the Veteran was diagnosed with sleep apnea in 2013 and was started on a CPAP at the time and that he continues with this modality. The Board notes that the 2013 sleep study and prescription for a CPAP are in the Veteran's claims file. In a separate report, the examiner found the Veteran's sleep apnea is less likely than not proximately related to his service-connected PTSD. The examiner explained that obstructive sleep apnea is caused by the collapse of the soft tissues of the throat when sleeping. The most common cause of obstructive sleep apnea was noted to be obesity. The examiner noted that the Veteran is considered morbidly obese and that this is the cause of his sleep apnea. The examiner also noted that review of "scientific literature supports a correlation of sleep apnea and PTSD but not causation between PTSD and OSA. The Veteran's sleep may be affected by PTSD in the form of insomnia, racing thoughts, etc."

In November 2022, the Board again remanded this issue. The Board noted that the March 2022 examiner made no mention of the PTSD symptoms and whether they aggravate the Veteran's sleep apnea. This was noted to be of particular importance given the examiner's indication that the Veteran's sleep may be impacted by his PTSD through insomnia, racing thoughts, etc. The Board also noted that the Veteran was now service-connected for hypertension such that an opinion was needed as to whether the hypertension potentially aggravates the Veteran's sleep apnea.

The Veteran was again afforded a VA examination in December 2022. This examiner confirmed that research has established a statistical co-morbid association between PTSD and obstructive sleep apnea. The examiner noted that the two conditions share common symptoms of disrupted sleep patterns and non-restful sleep. The examiner indicated, however, that there is no established etiological basis for obstructive sleep apnea due to PTSD. The examiner went on to explain why the physiology causing sleep apnea and the psychiatric base of PTSD do not support a conclusion that PTSD causes obstructive sleep apnea. The examiner listed medical literature and concluded that because obstructive sleep apnea is an obstructive process of the airway "it is not related directly nor indirectly to the psychiatric condition of PTSD as this would not result in this type of pathology. There is no established medical nexus." This examiner also opined that the chronic ankle condition would have no causative relationship with the Veteran's sleep apnea. The examiner did not discuss the May 2016 opinion. Further, the only comment made at this time related to aggravation was a single statement, "The Veteran required a CPAP when diagnosed with obstructive sleep apnea and he continues to require a CPAP." The examiner issued another report in April 2023 and indicated PTSD and ankle sprain "do not have causation of causing collapse of the Veteran's airway and as such they have not aggravated the Veteran's sleep apnea."

Additional opinions were obtained in August 2023. An examiner reviewed the claims file and again opined that the Veteran's sleep apnea and chronic left ankle sprain are not medically related. In another report, this examiner found that the conditions of sleep apnea and PTSD are not medically related. "The sleep apnea is a separate entity entirely from the posttraumatic stress disorder and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established." The RO returned the matter to the examiner for an opinion on aggravation. The examiner recognized the prior opinions suggesting PTSD can make it difficult to sleep. The examiner explained that difficulty sleeping (insomnia) does not cause obstructive sleep apnea, which is an anatomical condition that occurs while sleeping. "The mention of insomnia and racing thoughts by a previous examiner are not causing the Veteran to have interrupted breathing while he actually sleeps." This examiner also noted there is a correlation between PTSD and sleep apnea, but one does not cause the other. "This means that if a Veteran has been diagnosed with Post-Traumatic Stress Disorder, they are at higher risk of screening positive for obstructive sleep apnea. This does not mean that one causes the other." The examiner, therefore, concluded that the PTSD did not cause the sleep ap
can make it difficult to sleep. The examiner explained that difficulty sleeping (insomnia) does not cause obstructive sleep apnea, which is an anatomical condition that occurs while sleeping. "The mention of insomnia and racing thoughts by a previous examiner are not causing the Veteran to have interrupted breathing while he actually sleeps." This examiner also noted there is a correlation between PTSD and sleep apnea, but one does not cause the other. "This means that if a Veteran has been diagnosed with Post-Traumatic Stress Disorder, they are at higher risk of screening positive for obstructive sleep apnea. This does not mean that one causes the other." The examiner, therefore, concluded that the PTSD did not cause the sleep apnea. Later in the same report, the examiner duplicated the same rationale, but concluded that the sleep apnea "is clearly and unmistakably NOT aggravated by [PTSD]."

The examiner also again noted that sleep apnea is caused by the collapsing of the posterior throat area and soft pallet covering the opening to the lungs, not allowing air to get into the lungs. The left ankle disability cannot cause collapse of the soft palate/posterior throat area. Therefore, there is no secondary relationship between the sleep apnea and the left ankle disability. Later in the same report, the examiner duplicated the same rationale but concluded that the sleep apnea "is clearly and unmistakably NOT aggravated by chronic left ankle sprain.

The Board notes that the most recent addendum opinion shows the RO indicated the Veteran is service-connected for PTSD, a left ankle disability and hypertension. However, the RO did not ask for an opinion as to any causal connection or aggravation between the Veteran's sleep apnea and his hypertension. The Board's November 2022 remand directive explicitly noted that the Veteran is service-connected for PTSD, a left ankle disability and hypertension and required an opinion as to whether the Veteran's sleep apnea is at least as likely as not being aggravated by his service-connected disabilities. The RO did not comply with this remand directive. The Board also notes that the May 2016 private opinion suggests potential aggravation of the sleep apnea by the PTSD because the PTSD makes it difficult for the Veteran to use his CPAP. No VA examiner has addressed this contention. For these reasons, while the Board regrets the additional delay, another remand is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall v. West, 11 Vet. App. 268, 271 (1998).

Gastrointestinal Disorder

With regard to the Veteran's claim for service connection for a gastrointestinal disorder, the Board noted in its November 2022 remand that a May 2022 VA examiner had indicated the need for the Veteran to present for a colonoscopy to confirm the appropriate diagnosis for his reported constant constipation, which the examiner noted was a sign or symptom of a non-surgical, non-infectious intestinal condition. The Board remanded the matter noting that if the Veteran consented to a colonoscopy, it should be conducted; and, whether or not it was accomplished, an opinion should be sought as to any gastrointestinal disorder present. The opinion was to consider whether the symptoms are related to service, to include the Veteran's Persian Gulf service, or whether the symptoms are due to or aggravated by the Veteran's PTSD.

The Board observes that the RO indicated in the September 2023 supplemental statement of the case (SSOC) that an examination was scheduled and the Veteran failed to appear. However, the Board's review of the file does not reveal any indication that the Veteran failed to appear for a scheduled examination. Moreover, it does not appear either from the RO's SSOC or from the clinical records added to the file after the remand that a colonoscopy was scheduled.

Following the remand, a document was added to the claims file showing an examination was being scheduled and that the Veteran would need to report "unless the ACE process is utilized." A medical opinion was then added to the claims file in May 2023. This report shows that it is based upon a review of the record without an in-person or telehealth examination, using the ACE process "because the existing medical evidence provided sufficient information on which to prepare the questionnaire and such an examination will likely provide no additional evidence." The examiner went on to again suggest that a colonoscopy was needed, but had not been conducted. The examiner indicated an opinion could be provided once colonoscopy was used to determine the appropriate diagnosis. There was no suggestion in the file that the Veteran was scheduled for this diagnostic procedure, that he was asked to appear for an examination, or that he failed to appear to anything that was scheduled.

Because the Board's remand directives were
in May 2023. This report shows that it is based upon a review of the record without an in-person or telehealth examination, using the ACE process "because the existing medical evidence provided sufficient information on which to prepare the questionnaire and such an examination will likely provide no additional evidence." The examiner went on to again suggest that a colonoscopy was needed, but had not been conducted. The examiner indicated an opinion could be provided once colonoscopy was used to determine the appropriate diagnosis. There was no suggestion in the file that the Veteran was scheduled for this diagnostic procedure, that he was asked to appear for an examination, or that he failed to appear to anything that was scheduled.

Because the Board's remand directives were not carried out, the Board now has no choice but to again remand this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed muscle tension headache disorder is at least as likely as not proximately due to or aggravated by his service-connected PTSD and/or his service-connected hypertension.

The RO must consider the May 2023 examiner's opinion indicating that only a mental health provider can make an assessment as to whether the Veteran's service-connected PTSD aggravates his diagnosed muscle tension headaches. A discussion of the PTSD symptoms should be included in the rationale for the opinion expressed.

The examiner who provides the opinion related to the impact the Veteran's hypertension has had on his tension headaches must discuss the relevance of the May 2013 and May 2014 clinical notes listed in the August 2023 report, which suggest a correlation between the Veteran's headaches and his blood pressure. A discussion of the hypertension symptoms should be included in the rationale for the opinion expressed.

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed obstructive sleep apnea is at least as likely as not proximately due to or aggravated by his service-connected hypertension, or aggravated by the impact his PTSD has on his ability to use the CPAP that is required for his sleep apnea. The clinician should discuss the May 2016 opinion suggesting the PTSD symptoms cause him to be unable to effectively use the CPAP.

A discussion of the hypertension and PTSD symptoms should be included in the rationale for the opinion expressed.

3. Schedule the Veteran for a VA examination for his claimed gastrointestinal disorder. Any indicated tests, including a colonoscopy should be accomplished, although the Veteran may decline to undergo any such test. The examiner must review the claims file, including the May 2022 and May 2023 opinions indicating a colonoscopy is necessary. If the colonoscopy is accomplished, then any opinion obtained must consider the findings from that examination.

In any event, with regard to any gastrointestinal disorder present, the examiner should provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) related to service, to include the Veteran's service in the Persian Gulf; or whether it is proximately due to or aggravated by the Veteran's disabilities.

The examiner is also being asked to characterize the Veteran's claimed symptoms as belonging to one of four disability patterns: (1) undiagnosed illness; (2) a diagnosable, but medically unexplained chronic multi symptom illness of unknown etiology; (3) a diagnosable chronic, multi symptom illness with a partially explained etiology; or (4) a disease with a clear and specific etiology.

A rationale should be provided for any opinion expressed.

(Continued on the next page)

4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.

M. E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Adamson, 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.

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