Citation Nr: 1343517 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-12 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 2. Entitlement to service connection for sleep disturbance, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a heart disability to include congestive heart failure, to include as due to an undiagnosed illness. 4. Entitlement to service connection for muscle/joint pain, to include as due to an undiagnosed illness. 5. Entitlement to service connection for a stomach disorder (claimed as constipation), to include as due to an undiagnosed illness. 6. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness. 7. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 8. Entitlement to service connection for abnormal weight loss/gain, to include as due to an undiagnosed illness. 9. Entitlement to an initial compensable disability rating for eczema. 10. Entitlement to service connection for hypothyroidism. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to May 1999, to include service in Southwest Asia during the Persian Gulf War. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision (which denied service connection for headaches, sleep disturbance, congestive heart disease, muscle/joint pain, and a stomach disability claimed as constipation); August 2006 rating decision (which granted service connected for eczema, with the Veteran disagreeing with the initial rating assigned for this disability) and an October 2009 rating decision (which denied service connection for memory loss, fatigue, and abnormal weight loss) of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The case was remanded by the Board in May 2012 and March 2013. In August 2011, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The additional issue of entitlement to service connection for hypothyroidism, denied by the RO in a June 2011 rating decision, is not on appeal to the Board, but requires additional processing as addressed in the REMAND portion of the decision below. In addition to this issue, the claims for service connection on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Examinations conducted throughout the appeal period have not revealed that eczema has involved at least 5 percent of the entire body, or at least 5 percent of exposed areas of the body; at no time during the appeal period has eczema required intermittent systemic, as opposed to merely topical, therapy such as with use of corticosteroids or other immunosuppressive drugs. 2. At no time during the appeal period has eczema involved disfigurement of the head, face, or neck; scarring that is deep or that causes limited motion; superficial scarring covering an area of 144 square inches or 929 square centimeters or greater; or scarring that is unstable or painful on objective examination or that otherwise limits functioning. CONCLUSION OF LAW The criteria for an initial compensable rating for eczema are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes (DCs) 7800-7805, 7806 (as in effect prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). \ Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claim arises from an appeal of the initial evaluation for this disability following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA as to the issue adjudicated herein. VA's duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The service treatment reports (STRs) and VA and private clinical reports have been obtained, and the reports from VA skin examinations, most recently from one conducted in April 2013, have been obtained. Taken together, the examinations that have been provided to the Veteran are adequate because they contain histories obtained from the Veteran and thorough clinical findings relevant to the applicable rating criteria for the skin disability as tissue. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the August 2011 hearing, the undersigned Veterans Law Judge adequately explained the claim adjudicated herein and suggested evidence that may support this claim. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidenced by statements of record from the Veteran, and well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. As indicated, the appeal was previously remanded by the Board, and these remands conferred upon the appellant the right to compliance with the instructions therein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reveals that there has been substantial compliance with its remands with respect to the issued adjudicated herein. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the issue adjudicated below, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. As such, the Board may proceed to adjudication of the issue adjudicated herein. II. Factual Background, Legal Criteria, and Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file reflects VA outpatient treatment reports not physically of record dated through September 2011 that are documented to have been considered in the September 2013 supplemental statement of the case). Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim adjudicated herein. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern]. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for evaluating disorders of the skin were changed effective October 23, 2008, but only apply to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708-4712 (Sept. 23, 2008). Because the Veteran filed his claim for service connection for eczema which gave rise to the appeal of the initial rating assigned for this disability in August 2004 (and expressed his disagreement with this rating in April 2007), the revised regulations do not apply to this claim. Under the criteria in effective prior to the revisions codified at 73 Fed. Reg. 54708-4712 (Sept. 23, 2008) and currently, a compensable (10 percent) rating for eczema requires involvement of at least 5 percent but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during a 12-month period. 38 C.F.R. § 4.118, DC (7806). The current and revised DC 7806 also provides that dermatitis or eczema can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-7805), dependent on the dominant disability. Id. [The DCs with respect to disfigurement and scarring have been revised/reworded-reorganized by the regulations codified at 73 Fed. Reg. 54708-4712 (Sept. 23, 2008).] As codified prior to the revisions set forth at 73 Fed. Reg. 54708-4712, skin disability resulting in disfigurement of the head, face, or neck warranted a 10 percent rating if there was one characteristic of disfigurement. Note 1 following DC 7800 (2007) lists the eight characteristics of disfigurement for purposes of evaluation under § 4.118, as follows: (1) scar five or more inches (13 or more centimeters (cm)) in length; (2) scar at least one-quarter inch (0.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.) Scarring other than of the head, face, or neck, that is deep or that causes limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) warranted a compensable rating under DC 7801 (2007). Scarring other than of the head, face, or neck that is superficial and does not cause limited motion in an area of 144 square inches (929 sq. cm.) warranted a compensable evaluation under DC 7802 (2007). Superficial scarring that was unstable or painful on objective examination warranted a compensable rating under DC 7803 and DC 7804 (2007), respectively. DC 7005 provided that scarring other than as described above could be rated on the basis of limitation of functioning of the affected part. DC 7805 (2007). With the above criteria in mind, the relevant evidence will be summarized. The service treatment reports reflect treatment for eczema, and service connection for this condition was granted by an August 2006 rating decision. A noncompensable rating was assigned under DC 7806. Evidence considered in this decision included reports from a March 2006 VA examination of the skin that showed a lesion in the left groin that was approximately one inch and a half in diameter. The examiner stated that this lesion occupied .5 percent of the total surface area of the skin and 0 percent of exposed areas of the skin. Treatment consisted of Tinactin ointment. Additional pertinent evidence includes reports from VA examinations of the skin conducted in October 2007, April 2011, and April 2013 that revealed no evidence of active lesion attributable to eczema or other skin disability. The April 2013 VA examination indicated the Veteran was treated with a topical, as opposed to a systemic, corticosteroid for a duration of 6 weeks or more but not on a constant basis. The October 2007 VA examination reports indicated that Veteran's skin condition did not "significantly impair him" and that he had lost no time from work due to the condition. The April 2013 VA examination reports noted that the skin condition had no impact on the Veteran's ability to work. Review of the VA outpatient treatment reports and private clinical resorts reveal no evidence of a skin disability that differs significantly in kind or degree from that described on the VA examination reports. From the above, there is no evidence that, at any time during the appeal period, eczema involved at least 5 percent but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas affected, or required intermittent systemic therapy such as by corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during a 12-month period. There is also no evidence that the service connected skin disability has resulted in disfigurement or scarring such that a compensable rating could be assigned under DCs 7800-7805 (2007). In this regard, the skin disability does not involve disfigurement of the head, face, or neck such that a compensable rating would be warranted under DC 7800 (2007), nor does it result in scarring that is deep or that causes limited motion so as to warrant a compensable rating under DC 7801 (2007). As the condition does not result in superficial scarring covering an area of 144 square inches or 929 square centimeters or greater, a compensable rating is not warranted under DC 7802 (2007). There being no scarring that is unstable or painful on objective examination, compensable ratings cannot be assigned under DC 7803 or DC 7804 (2007), respectively. Finally, as there is no indication that the Veteran's service connected skin condition limits functioning, a compensable rating cannot be assigned under DC 7805 (2007). Given the above, the Board finds that a compensable rating for the Veteran's eczema is not warranted under the rating criteria at any time subsequent to the effective date of the initial rating, August 20, 2004. See 38 C.F.R. § 4.118, DC 7806 (2007); Fenderson, supra. In making the above determination, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected eczema and notes that his lay testimony, to include that presented to the undersigned at the August 2011 hearing, is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the clinical evidence discussed above, and have been contemplated by the disability rating that has been assigned. Moreover, the competent clinical evidence offering detailed specific findings is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected eczema. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent clinical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected skin disability. The Board has also contemplated whether the case should be referred for extra-schedular consideration for the disabilities at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's eczema. The Board finds that the disability at issue is fully addressed by the rating criteria under which skin disabilities are rated. In this regard, the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to his service-connected eczema. There are no additional symptoms of the service-connected disability at issue. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected eczema. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the fact that if the claimant or the record reasonably raises a question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the October 2007 VA examination repots noted that the Veteran had lost no time from work due to the service connected skin condition and the April 2013 VA examination indicated that the skin condition had no impact on the Veteran's ability to work. There is otherwise no specific evidence or allegation that the service connected skin disability renders the Veteran unable to secure or follow a substantially gainful occupation. As there is no suggestion of actual or effective unemployment due solely to the service connected skin disability, consideration of a TDIU in connection with the increased rating claim on appeal is not warranted. For all of the foregoing reasons, there is no basis for a compensable rating for the Veteran's eczema, to include on the basis of a staged rating pursuant to Fenderson, or a grant of TDIU. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a compensable rating or a grant of TDIU at any time since the grant of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. ORDER Entitlement to an initial compensable disability rating for eczema is denied. REMAND Regretfully, the Board concludes that additional development with respect to the claims for service connection on appeal is necessary. With regard to the claims for service connection for the disabilities on appeal, the Veteran has asserted that entitlement to serve connection for these disabilities is warranted under the presumptive provisions for Persian Gulf Veterans set forth at 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Official service department records, including some received pursuant to development requested in the last remand, document service in the Southwest Asia theater of operations during the Persian Gulf War; as such, the Veteran is a "Persian Gulf Veteran" as defined by regulation, and the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 are for consideration. 38 C.F.R. § 3.317(d)(1). Review of the reports from the VA examinations conducted in April 2013, with addenda completed in June 2013 reflect, as requested in the most recent remand, consideration of some aspects of the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; however, these examinations were not of the form of Persian Gulf War protocol examinations designed to consider all aspects of the presumptive provisions at issue. Moreover, review of the April 2013 VA examination reports and addenda reveal deficiencies, some identified below, that would not withstand judicial review. With respect to some of the deficiencies in the April 2013 VA examination reports, addressing first the appeal with respect to headaches, in the rationale provided for the opinion with respect to this disability, it was noted that there was no evidence of headaches during service. In fact, the STRs, to include those dated in July 1994, do reflect treatment for headaches, and a medical history completed in February 1999 near the end of military service referred to "year round" headaches. As such, a medical opinion based on an accurate medical history with respect to, and that also fully considers the pertinent regulatory presumptions, is necessary in order to fulfill the duty to assist. Reonal v. Brown, 5 Vet. App. 458 (1993)(Standing for the proposition that medical opinions based on an inaccurate factual premise have no probative value.) Turning to a sleep disorder, the opinion with respect to this disability was completed by a VA psychologist, who indicated in a June 2013 addendum opinion that as it was outside his area of professional expertise, it would be "unethical" for him to state whether a sleep disorder was related to service. Given the contentions with regard to an in-service origin of a sleep disorder, and the fact that a March 2006 VA examination noted a sleep disturbance (with the Veteran awakening two to three times a night) and a July 2008 Reserve examination reflected complaints of a sleep disorder, another opinion with respect to this disability, that also fully considers the pertinent regulatory presumptions, is necessary in order to fulfill the duty to assist. As for a heart disability to include congestive heart failure, the April 2013 VA opinion with respect to this disability does not specifically reflect consideration of the statement received from a private physician in September 2011 that, in essence, relates this condition to an in-service viral syndrome. The STRs do reflect treatment for viral syndrome, to include in April 1992 at which time the Veteran was hospitalized, and reports from the March 2006 VA examination reflect an assessment of congestive heart failure from viral myocarditis. The April 2013 VA opinion also does not reflect consideration of whether possible exposure to sarin during service resulted in cardiomyopathy as set forth in a 2004 analysis prepared by the Center for Research Information, Inc that was submitted by the Veteran in June 2008. Finally, the rationale for the opinion with respect to congestive heart failure provided in April 2013 was essentially limited to there being no evidence in the STRs, to include the separation examination, of a heart disability. The Court has found that an examination is inadequate where the examiner relies solely on the absence of evidence of disability in the STRs to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, another medical opinion with respect to congestive heat failure that specifically addresses the contentions and positive evidence as set forth above; does not rely solely on the absence of findings in service; and that also fully considers the pertinent regulatory presumptions is necessary to fulfill the duty to assist. As for muscle/joint pain, the rationale for the negative opinion in this regard at the April 2013 VA examination was that were no service medical records reflecting evidence of a muscle disability; again, a negative opinion with such a sole rationale is not adequate. Dalton, supra. The Board notes also that with respect to joint pain, the STRs do reflect complaints of joint pain, to include in the ankles and right wrist in July 1994 and the low back in November 1995. As such, a VA medical opinion that reflects consideration of the joint pain in service; does not rely solely on negative treatment reports in service with respect to a muscle disability; and that also fully considers the pertinent regulatory presumptions is necessary in order to fulfill the duty to assist. Reonal, Dalton, supra. Addressing the claim for stomach disability claimed as constipation, the April 2013 medical opinion appeared to essentially be based on the lack of any evidence of this condition during service. As such, another medical opinion with respect to this disability that does not rely solely on the absence of findings in service and that fully considers the pertinent presumptive provisions is necessary to fulfill the duty to assist. Dalton, supra. As for memory loss, fatigue, and weight gain, the Board finds that another medical opinion with respect to these disabilities that fully considers the pertinent presumptive provisions is necessary to fulfill the duty to assist. With specific reference to fatigue, as one of the April 2013 VA examinations attributed fatigue to hypothyroidism and cardiomyopathy, the adjudication of this claim must be deferred pending resolution of the claims for service connection for a cardiovascular disability and hypothyroidism as the claim for service connection for fatigue is inextricably intertwined with these claims. Harris v Derwinski, 1 Vet. App. 80 (1991). Finally with respect to service connection for hypothyroidism, a claim denied by a June 2011 rating decision, the Board notes that a communication with respect to this disability was received from the Veteran later in June 2011, wherein he asserted that hypothyroidism was "definitely military related" and that "I do wish for this claim to be re evaluated." The Board liberally construes this statement to represent a timely notice of disagreement with the June 2011 denial of service connection for hypothyroidism. See 38 C.F.R. § 20.201; Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record). As such, upon remand, the RO/AMC will be requested to issue a statement of the case addressing this issue. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with a statement of the case on the issue of entitlement to service connection for hypothyroidism. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Schedule the Veteran for a Persian Gulf War protocol examination to determine whether headaches, sleep disturbance, a heart disability to include congestive heart failure, muscle/joint pain, a stomach disorder claimed as constipation, memory loss, fatigue, or abnormal weight loss/gain may be manifestations of a larger undiagnosed illness. The claims file, including a complete copy of this remand, must be made available to the physician(s) designated to examine the Veteran for review of his pertinent medical and other history. The report of the examination(s) should include an accurate discussion of his documented medical history and assertions. All appropriate tests and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner(s) prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct a comprehensive medical evaluation and provide details about the onset, frequency, duration, and severity of the Veteran's symptoms. a. The examiner(s) should specifically state whether any problems associated with headaches, sleep disturbance, a heart disability to include congestive heart failure, muscle/joint pain, a stomach disorder claimed as constipation, memory loss, fatigue, or abnormal weight loss/gain are attributable to known clinical diagnoses, or are part of a larger undiagnosed illness. If there are known clinical diagnoses that can be medically explained, the examiner should expressly indicate these underlying diagnoses. In such a case, the VA examiner(s) should further opine, following a review of the claims folder, on the etiology of each disorder by addressing the following question: is it at least as likely as not (i.e., probability of 50 percent) that the disorder was incurred in service? In rendering such opinions, the examiner is to consider the Veteran's complaints of continuity of appropriate symptomatology from service until the present time, and not solely rely on the lack of any in-service documentation of disability. See Dalton, supra. b. If, on the other hand, the Veteran suffers from signs or symptoms that are determined not to be associated with a known clinical diagnosis, the examiner must note that fact. c. With specific regard to a cardiovascular disability to include congestive heart failure, the examiner is to document consideration of the STRs reflecting treatment for viral syndrome, the March 2006 VA examination reflecting an assessment of congestive heart failure from viral myocarditis, and the opinion received from the private physician in September 2011 that related a heart condition to an in-service viral syndrome. The examiner should also document consideration of possible exposure to sarin during service as a cause of cardiomyopathy as set forth in the 2004 analysis prepared by the Center for Research Information, Inc that was submitted by the Veteran in June 2008. 3. After completion of the above, and any other development indicated, the RO/AMC should review the expanded claims file and determine whether the claims for service connection for headaches, sleep disturbance, a heart disability to include congestive heart failure, muscle/joint pain, a stomach disorder claimed as constipation, memory loss, fatigue, or abnormal weight loss/gain, may be granted. The claim for service connection for fatigue should reflect consideration of any positive resolution of the claims for service connection for a heart disability or hypothyroidism. If any of the claims for service connection on appeal are denied (that is, each claim for service connection other than the claim for service connection for hypothyroidism), the RO should furnish the Veteran and his representative with an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs