Citation Nr: 1315744 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-28 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a back disability with radiculopathy. 3. Entitlement to service connection for chronic fatigue syndrome, to include as due to undiagnosed illness. 4. Entitlement to service connection for gastrointestinal problems, to include as due to undiagnosed illness. 5. Entitlement to service connection for joint pain, to include as due to undiagnosed illness. 6. Entitlement to service connection for muscle pain, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to November 1978 and from November 1990 to June 1991. Additional service with the Mississippi National Guard is indicated by the record. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, additional development is required concerning all of the Veteran's claims. For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established for 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, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. Previously, VA regulations listed three disabilities as medically unexplained chronic multisystem illnesses. VA has amended its regulations to clarify that these are only examples and that a broader array of unspecified conditions could be medically unexplained chronic multisystem illnesses. The Veteran's claimed disabilities have been attributed to diagnosed illnesses and disabilities, but it is not clear whether any of these could be considered medically unexplained chronic multisystem illnesses (except that VA regulations appear to preclude service connection for gastroesopageal reflux disease (GERD) on this basis. 38 C.F.R. § 3.317. A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Presumptive service connection has been established for functional gastrointestinal disorders. Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficulty swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. Note to 38 C.F.R. 3.317(a)(2)(i)(B)(3). Inasmuch as the Veteran's service records show that he served in Southwest Asia, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. The Veteran contends that his claimed disabilities are part of a constellation of symptoms as due to an illness as described under 38 C.F.R. § 3.317. Clarification is needed and the Veteran should be afforded a VA examination. The Board also finds that the Veteran's service personnel records and service treatment records should be requested through official sources. It is evident the RO did not request the Veteran's service personnel records and it is unclear if all of the Veteran's service treatment records have been associated with the claims file. The Veteran should additionally be asked to provide any additional records he might have in his possession. Additionally, the Veteran contended during his hearing that he was originally diagnosed with diabetes in 1992 at the Jackson VA Medical Center (VAMC). A July 2009 deferred rating decision notes that treatment notes from CAPRI are not available for 1992. However, the Board finds that the RO/AMC must request ALL treatment records for the Veteran from the Jackson VAMC, to include those not electronic. The Board orders this, cognizant of the fact that a May 1992 service treatment record indicates that the Veteran had no history of diabetes mellitus although his mother had died of the disease. Additionally, the Board observes that a March 1995 service treatment note indicates that the Veteran did not have diabetes mellitus. Concerning the Veteran's claim for a back disability, he indicated during his hearing testimony that he was not treated for such disability while on active duty. However, an April 1991 Report of Medical History indicates the Veteran had recurrent back pain. A June 2000 Report of Medical History indicates no back pain. Additionally, a May 1998 treatment note indicates that the Veteran's back pain began three to four years prior. A September 2008 examination indicates that the Veteran's back pain had begun one to one and a half years prior. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Thus, the Veteran should be afforded a VA examination to determine if his back disability began or is otherwise related to his periods of active service. In addition, the Board notes that additional relevant VA records have been associated with the claims file since the July 2009 rating decision with no subsequent adjudication by a supplemental statement of the case as indicated by the March 2008 remand. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service personnel records and service treatment records from official sources, to include but not limited to the National Personnel Records Center, the Veteran's prior National Guard unit, and the Adjutant General for the state of Mississippi. 2. Obtain the Veteran's records from the Jackson VA medical system not already associated with the claims file to include 1991 to the present, ALL records not already in the claims folder must be associated whether in CAPRI or found in the paper files. 3. Schedule the Veteran for a VA examination to determine whether he has a current back disability which otherwise related to service. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiners for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner(s) should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current back disability which is related to a period of active service or any incident of active service. If an examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for the claimed conditions in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports, including those of a history of disabilities in the years since his discharge from service, must be specifically acknowledged and considered in formulating any opinions. 4. Schedule the Veteran for a VA examination, to determine whether the diagnoses attributable to his claimed disabilities constitute a medically unexplained chronic multisystem illness, a functional gastrointestinal disorder, or they are otherwise related to service. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's symptomatology constitutes: (1) a medically unexplained chronic multisystem illness (i.e. a cluster of signs or symptoms; a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities). If so, the examiner(s) should also describe the manifestations of the illness and its severity. (2) a functional gastrointestinal disorder or; (3) a disease or disability that otherwise had its onset in service or is related to a disease or injury in service. The examiner should provide reasons for each opinion. If an examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for the claimed conditions in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports, including those of a history of disabilities in the years since his discharge from service, must be specifically acknowledged and considered in formulating any opinions. If an examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 5. If any benefits sought on appeal remain denied, the Veteran should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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. 2012). _________________________________________________ JAMES A. MARKEY 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).