Citation Nr: 1306360 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-33 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for an undiagnosed illness manifested by chronic fatigue syndrome (CFS), and joint and muscle pain and memory loss claimed as due to an undiagnosed illness. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot 3rd metatarsal fracture, including degenerative joint disease (right foot disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran evidently had active military service from January 1988 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that denied service connection for a back disorder and undiagnosed illness, and granted service connection and an initial 10 percent rating for a right foot disability. The Veteran filed a timely notice of disagreement as to the denial of his service connection claims and the initial rating assigned to his right foot disability. Thereafter, in a January 2012 rating decision, the RO granted service connection for spondylolisthesis with degenerative disease of the lumbar spine, and radiculopathy of the left and right lower extremities. The RO's action represents a full grant of the benefits sought as to the Veteran's claim for a back disorder and that issue is no longer in appellate status. In November 2012, the Veteran, sitting at the RO, testified during a hearing, conducted via video conference, with the undersigned Veterans Law Judge sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a disability manifested by CFS, and joint and muscle pain and memory loss as due to an undiagnosed illness. In his May 2009 original claim for VA benefits, the Veteran reported that he was exposed to sarin and cyclosarin. He indicated that while participating in Operation Desert Storm/Desert Shield he was exposed to nerve agent demolition at Khamisiya, Iraq. The RO/AMC should request the Veteran's service personnel records and 201 personnel file. In January 2012, a VA examiner diagnosed the Veteran with idiopathic chronic fatigue that did "not meet the criteria of chronic fatigue." The examiner stated that "[t]his is a disease with a clear and specific etiology and diagnosis or a diagnosable chronic multisymtom illness with a partially explained etiology." The examiner was not able to relate this condition to a specific substance exposure event experienced by the Veteran during service in Southwest Asia without resorting to mere speculation because he was aware of no information of exposure to a specific substance known to cause that condition. The VA examiner also diagnosed strain of both hands and right shoulder and surgical residuals of the left shoulder, malunion of the metatarsal of the right foot, and degenerative disease with spondylolysis and spondylolisthesis of the lumbar spine with radiculopathy syndrome. He provided the same rationale for each diagnosis. The January 2012 VA examiner's opinion is confusing and speculative and the Board cannot rely on this opinion to reach a determination in the Veteran's case. See Jones v. Shinseki, 23 Vet. App. 382, 387-88 (2010), citing McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Further, the January 2012 VA examiner stated that, as to the Veteran's complaint of memory loss, this condition was "the province of a specialist" and rendered no opinion. It does not appear that the Veteran was subsequently afforded a VA examination by an examiner with expertise to evaluate his complaints of memory loss. This must be accomplished on remand. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f) (West 2002 and West Supp. 2012); 38 C.F.R. § 3.317(d) (2012); see also 76 Fed. Reg. 250, 81834-36 (December 29, 2011). It appears that the Veteran may have served in the Persian Gulf during the designated time period, although his service personnel records must be obtained. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995 -97 (2010); see also 76 Fed. Reg. 41696 -98 (July 15, 2011). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834 -81836 (December 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). The Veteran has reported serving during Operation Desert Storm/Desert Shield and that he was exposed to various nerve agents, and he has reported numerous fatigue, muscle and joint, and memory complaints. Given these records, and the Veteran's testimony, the Board finds that he should be afforded a new VA examination to determine etiology of any undiagnosed illness found to be present. See McLendon v. Nicholson, 20 Vet. App. at 79. See also Jones v. Shinseki, supra. As to the Veteran's claim for an increased initial rating for his right foot disability, prior to the start of his November 8, 2012, Board hearing, the Veteran and his representative advised this Veterans Law Judge that additional evidence "will be provided today" and "will be accompanied by a waiver." See Board hearing transcript at page 2. Unfortunately, this additional evidence is not currently associated with the Veteran's claims file. The RO should locate the additional evidence and associate with the claims file or contact the Veteran and determine if the current record is complete. Accordingly, the case is REMANDED for the following action: 1. The RO should locate the evidence submitted by the Veteran at the time of his November 8, 2012, videoconference hearing and associate it with the claims file. If such evidence cannot be located, contact the Veteran and request that he either identify the missing records and the clinicians who provided the records, and then the RO should obtain copies of records, or he should provide a statement indicating that the current record is complete as to his right foot disability. 2. Contact the National Personnel Records Center and any other appropriate federal records repository and request the Veteran's personnel records and 201 personnel file. If such efforts prove unsuccessful, documentation to that effect should be added to the claims file. The Veteran should be notified of any unsuccessful attempts to obtain his records. 3. Schedule the Veteran for appropriate VA examination(s), i.e., internal medicine, psychological, neurological, to determine the etiology of his claimed CFS residuals of exposure to hazardous materials, including CFS, and joint and muscle pain and memory loss due to an undiagnosed illness. The claims file should be made available to the examiner(s) for review in connection with the examination(s). All indicated tests and studies should be performed and all clinical findings should be reported in detail. Based on a review of the claims file and examination findings, the examiner(s) is(are) requested to answer the following questions: a. Does the Veteran have CFS, or another medically unexplained chronic multisymptom illness, or undiagnosed illness? If so, the examiner(s) is(are) requested, for each identified disorder, to provide an opinion as to whether it at least as likely as not (a 50 percent or higher degree of probability) had its clinical onset in service or is otherwise related to the Veteran's service, including his claimed exposure to environmental hazards during the Persian Gulf War in service. All opinions and conclusions expressed should be supported by a complete rationale. The examiner should reconcile any opinion with the Veteran's November 2012 hearing testimony, and the January 2012 VA examiner's diagnosis of idiopathic chronic fatigue. 4. After completion of the above, the RO/AMC should review the expanded record and determine if the benefits sought can be granted. If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2011). The appellant 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).