Citation Nr: 1332591 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-34 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic fatigue, claimed as Gulf War Illness. 2. Entitlement to service connection for headaches, claimed as Gulf War Illness. 3. Entitlement to service connection for hair loss, claimed as Gulf War Illness. 4. Entitlement to service connection for muscle problems, claimed as Gulf War Illness. 5. Entitlement to service connection for joint problems, claimed as Gulf War Illness. 6. Entitlement to service connection for digestion problems, claimed as Gulf War Illness. 7. Entitlement to service connection for memory problems, claimed as Gulf War Illness. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to August 2003, which included service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 2002 Medical Board Summary. His claims file has been rebuilt. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for Gulf War Illness. The Veteran's claim has since been expanded to reflect the symptoms that he asserts are related to his Gulf service. In a VA Form 21-4138 dated in December 2012, the Veteran indicated that the pain in his feet has worsened. He is currently service-connected for bilateral pes planus. Therefore the issue of entitlement to a higher rating for bilateral pes planus has been raised. This issue has not yet been adjudicated and is therefore REFERRED to the RO/AMC for the appropriate consideration. 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 A review of the record reflects that additional development is necessary prior to analyzing the claims on the merits. In November 2011 and January 2012, the Veteran underwent a battery of VA compensation examinations in connection with the service connection claims on appeal. The examiner attributed many of the Veteran's claimed symptoms, such as chronic fatigue, recurrent headaches, hair loss below the knees, and loose stools, to his untreated, non service-connected diabetes mellitus, type II, and not his military service. However, toward of the November 2011 examination report, the examiner indicated that the Veteran cannot really be evaluated for Gulf War Illness as long as his diabetes is uncontrolled, noting that diabetes affects the entire body, to include to a certain extent his mental and cognitive functions. The November 2011 and January 2012 VA examination reports are therefore inadequate to the extent that they do not reflect an accurate disability picture. An additional VA examination is therefore necessary. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file. Obtain these records and associate them with the claims folder. 2. Following receipt of the Veteran's response or upon the passage of a reasonable amount of time, schedule the Veteran for additional appropriate VA examinations, to include a VA Persian Gulf War protocol examination, and any specific clinical testing. The following considerations will govern the examinations: The claims folder and a copy of this remand will be provided to the examiner for review in conjunction with the examination. The examiners must acknowledge receipt and review of these materials in any reports generated by the examination. The examiner will be advised: The purpose of the examinations is to ascertain whether the Veteran has any chronic fatigue syndrome, headaches, hair loss, muscle disability, joint disability, gastrointestinal disability, and memory impairment as a result of, or aggravated by, any in-service incident; or whether any such disabilities or symptoms are the result of an undiagnosed illness. AFTER REVIEWING THE CLAIMS FOLDER, TO INCLUDE THE NOVEMBER 2011 AND JANUARY 2012 VA EXAMINATION REPORTS, THE EXAMINER(S) MUST RESPOND TO THE FOLLOWING INQUIRIES: a. DOES THE VETERAN HAVE ANY CHRONIC FATIGUE DISABILITY, HEADACHE DISABILITY, MUSCLE DISABILITY, JOINT DISABILITY, GASTROINTESTINAL DISABILITY, AND MEMORY LOSS DISABILITY THAT EITHER HAD ITS ONSET DURING ACTIVE MILITARY SERVICE OR IS OTHERWISE RELATED TO SERVICE? b. DID THE VETERAN'S DIABETES MELLITUS, ALOPECIA, DISC DISEASE OF THE LUMBAR SPINE, AND GENERALIZED ANXIETY DISORDER HAVE ITS ONSET DURING ACTIVE MILITARY SERVICE OR IS IT OTHERWISE RELATED TO SERVICE? c. ARE THE VETERAN'S CHRONIC FATIGUE, HEADACHE, HAIR LOSS, MUSCLE, JOINT, AND GASTROINTESTINAL SYMPTOMS ATTRIBUTABLE TO ANY KNOWN CLINICAL DIAGNOSIS? d. ARE THE VETERAN'S MEMORY LOSS SYMPTOMS ATTRIBUTABLE TO HIS GENERALIZED ANXIETY DISORDER OR ANY OTHER KNOWN CLINICAL DIAGNOSIS? e. ARE THE VETERAN'S CHRONIC FATIGUE, HEADACHE, HAIR LOSS, MUSCLE, JOINT, GASTROINTESTINAL, AND MEMORY LOSS SYMPTOMS A CHRONIC DISABILITY RESULTING FROM AN UNDIAGNOSED ILLNESS AND/OR A MEDICALLY UNEXPLAINED CHRONIC MULTISYMPTOM ILLNESS THAT IS DEFINED BY A CLUSTER OR SIGNS OR SYMPTOMS, SUCH AS CHRONIC FATIGUE SYNDROME, FIBROMYALGIA, OR IRRITABLE BOWEL SYNDROME? The examiner is advised that "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is also advised that for the purposes of 38 C.F.R. § 3.317(a), disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The question of the severity of the symptoms is only relevant to the extent that it may provide information as to the source of the disorders. THE EXAMINER MUST FULLY EXPLAIN THE MEDICAL AND FACTUAL BASES FOR ANY OPINION. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 3. Thereafter, the RO/AMC will review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, the claims must be readjudicated. The claims for service connection should be readjudicated with consideration of the provisions of 38 C.F.R. § 3.317. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran and his representative should be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ Vito A. Clementi 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) (2013).