Citation Nr: 1122038 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 05-36 413 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a chronic disability manifested by fatigue and joint pain. 2. Entitlement to service connection for a chronic disability manifested by signs and symptoms involving the skin (previously adjudicated as anaphylactic reactions manifested by skin lesions and hives). 3. Entitlement to service connection for a chronic disability manifested by gastrointestinal signs and symptoms (previously adjudicated as nausea and vomiting). 4. Entitlement to service connection for a chronic disability manifested by neuropsychological signs of symptoms. 5. Entitlement to service connection for Grave's disease. 6. Entitlement to service connection for a chronic disability manifested by abnormal liver enzymes, hyperlipidemia, abnormal pap smears, elevated temperatures, and possible adrenal insufficiency. 7. Entitlement to service connection for a chronic disability manifested by sleep disturbance. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to June 1991, including service in Southwest Asia from January 7, 1991, to May 25, 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the RO. The issues have been characterized to more accurately reflect the Veteran's actual claims for symptoms of an undiagnosed illness as a result of service in Southwest Asia during the Persian Gulf War. The Board remanded the issues on appeal in March 2008 for further development of the record. The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts are applicable to this appeal. In the March 2008 remand, the Board directed the RO to schedule the Veteran for the appropriate VA examination(s) to determine whether the Veteran had any current disability manifested by fatigue and joint pain; skin disorder; gastrointestinal (GI) disorder; Graves disease; abnormal liver enzymes, hyperlipidemia, abnormal pap smear, elevated temperatures, and/or possible adrenal insufficiency; or sleep disturbance etiologically related to her period of service. The Board noted that any offered opinion should specifically address the medical evidence indicating diagnosis of Gulf War illness (including chronic fatigue syndrome) and service department records indicating the Veteran's potential exposure to a very low level of chemical agent from demolition of munitions at Khamisiyah, Iraq. Additionally, the Board instructed that any affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia Theater of operations during the Persian Gulf War and the onset of the illness must be adequately identified. In a March 2009 VA psychiatric examination report, the Veteran was diagnosed with major depression. The examiner concluded that the depression was mainly related to the Veteran's physical problems and noted that the Veteran's contention was that her physical problems were related to her active duty service in Southwest Asia. However, the examiner concluded that the Veteran's depression was not caused by or a result of service conditions. In a December 2009 VA examination report, the Veteran was diagnosed with Iatrogenic hypothyroidism (post radioactive iodine treatment for Graves), on supplemental synthroid; elevated liver enzymes by history secondary to methotrexate (normal at present); irritable bowel syndrome (IBS); hyperlipidemia (not on treatment); and symptoms of fatigue (most likely secondary to chronic autoimmune vasculitis, hypothyroidism and depression). There was no history or evidence of adrenal insufficiency. The examiner concluded that the conditions were not suggestive of any undiagnosed illness and noted the claims file had been reviewed. Results of a January 2010 gynecological VA examination were normal. In a September 2010 VA examination addendum, the examiner concluded that the above mentioned diagnoses: hypothyroidism; history of elevated liver function tests (LFT) secondary to methotrexate; IBS; hyperlipidemia; no history of adrenal insufficiency; and symptoms of fatigue (secondary to autoimmune vasculitis, hypothyroidism, depression) were not suggestive of undiagnosed illness because all have a diagnosis. The examiner could not determine if the diagnoses were related to exposure to a very low level of chemical agent from demolition in Iraq without resorting to mere speculation. In the regard, the examiner explained that the medical literature was not able to prove any connection. The Board concludes that the above-noted opinions are inadequate to address the question posed in the Board's March 2008 remand, as they did not specifically address all the claimed disabilities or completely address the question of the etiology of the disorders. To that end, the Board notes that in the December 2009 VA examination report the examiner concluded that the conditions were not suggestive of any undiagnosed illness. In the September 2010 addendum opinion, the examiner explained that an opinion as to whether the disorders were related to exposure to very low level of chemical agent from demolition in Iraq could not be offered without resorting to mere speculation as the medical literature did not prove any connection. However, neither opinion addresses the question of whether any diagnosed disorder was directly related to the Veteran's period of service. See generally Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board reiterates that service medical records show that on January 2, 1991, before the Veteran deployed to Southwest Asia, she complained of nausea and vomiting. It was also noted that she stated she blacked out for a few seconds before she began vomiting. A January 3, 1991, note indicates she was treated for viral gastroenteritis. During her deployment, a February 12, 1991, report noted complaints including nausea, vomiting, and headaches. A March 21, 1991, report noted complaints of nausea and vomiting over the previous day with a diagnosis of viral gastritis. On April 26, 1991, she complained of nausea, dizziness, abdominal pain, and headache. The diagnosis referred to a gastrointestinal disorder. In an August 2004 report the VA examiner, a certified nurse practitioner, noted clinical impressions including chronic fatigue with no clear etiology of chronic fatigue syndrome, but with Epstein-Barr panel results indicative of a reactivated chronic infection as likely as not related to chronic fatigue. It was also noted that the Veteran had idiopathic anaphylaxis and Grave's disease without opinions as to etiology or apparent consideration of previous private medical opinions as to Gulf War Syndrome. In subsequent correspondence dated in June 2006 a private physician, M.K., DO, FACOI, noted the Veteran's medical case had been very challenging, but that his experience led him to believe that her problems with nausea and vomiting may be related to her service in Operation Desert Storm. The physician stated that the Veteran had experienced very difficult times with chronic medical problems that were thus far unexplained. In correspondence dated in September 2006 M.R.H., MD, MPH, FCCP, identified as the Chief of the Center for Occupational and Environmental Medicine in Royal Oak, Michigan, noted that he had been treating the Veteran for an immune mediated vascular/dermatologic disorder and pulmonary disease including an interstitial process and an asthmatic process since May 2005. It was his opinion that it was quite likely these disorders were related to disease processes initially contracted during military service in Desert Shield/Storm for which the Veteran was treated without enduring success. VA regulations provide that where "the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2009); see 38 C.F.R. § 19.9 (2009). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required by the courts "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Because the record still does not contain an adequate medical opinion to resolve the issues on appeal, the Board finds a more contemporaneous VA examination(s) is necessary. On April 14, 2011, pursuant to 38 U.S.C.A. § 1118, the Secretary of Department of Veterans' Affairs issued a notice regarding a determination that a presumption of service connection was not warranted for certain diagnosed or undiagnosed diseases or illnesses because of exposure to "a biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine known or presumed to be associated with service in the Southwest Asia theater of operations during the Persian Gulf War. The notice also concluded that no other changes to the existing presumptions and no new presumptions relating to multisymptom illnesses were warranted at this time. The notice also concluded that no new presumptions were warranted for the following health outcomes: Psychiatric symptoms; cardiovascular disease; diabetes; arthralgia; hospitalization; cancer; mortality from external causes; skin conditions; amyotrophic lateral sclerosis; other diseases of the nervous system; neurocognitive and neurobehavioral performance; sexual dysfunction; other genitourinary outcomes; fertility problems; adverse pregnancy outcomes; birth defects; respiratory symptoms; diseases of the blood and blood-forming organs; and structural gastrointestinal diseases. The determination not to provide presumptions of service connection for the health effects discussed in Volume 4 and Volume 8 does not preclude VA from granting service connection on a direct basis for these health effects, nor does it change any existing rights or procedures. (see 76 Fed. Reg. 21099, April 14, 2011). The AMC/RO has not had the opportunity to evaluate the claim following the issuance of this notice. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2010), the need for additional evidence regarding her claims on appeal. This letter should reflect all appropriate legal guidance. See e.g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC/RO should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, that treated the Veteran for her claimed disorders. After she has signed the appropriate releases, any previously unidentified record should be obtained and associated with the claims folder. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 3. After the foregoing development has been completed, the Veteran should be afforded an appropriate VA examination(s) to determine the etiology of her claimed fatigue and joint pain; skin; gastrointestinal; psychiatric; Grave's disease; liver, gland, blood and/or gynecological; and, sleep disorders. All indicated tests and studies are to be performed. Prior to the examination(s), the claims folder and a copy of this remand must be made available to the physician(s) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner(s). The examination must be conducted following the protocol in VA's Disability Worksheet for Gulf War Guidelines. Based on a review of the claims folder, examination of the Veteran, and employing sound medical principles, the examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any current disabilities manifested by fatigue and joint pain; skin; gastrointestinal; psychiatric; Grave's disease; liver, gland, blood and/or gynecological; and, sleep disorders that had their onset in service or are otherwise etiologically related to the Veteran's period of service, including, but not limited to her tour of duty in Southwest Asia. If an undiagnosed illness, to include chronic fatigue syndrome, was caused by a supervening condition or event that occurred between the Veteran's period of service and the onset of the illness, the examiner must clearly identify the supervening condition or event in the examination report. A complete rationale must be given for all opinions and conclusions expressed. 4. The Veteran must be given adequate notice of the date and place of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claims. 5. After completion of all indicated development, the Veteran's claims should be readjudicated in light of all the evidence of record, and considering the VA notice published in the Federal Register on April 14, 2011. If any determination remains adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).