Citation Nr: 1801576 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for fibromyalgia, claimed as joint and muscle pain. 2. Entitlement to service connection for chronic fatigue syndrome. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to service connection for gastrointestinal pain as due to an undiagnosed illness. 5. Entitlement to service connection for sleep disturbances as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from June 1997 to April 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled to appear at a Board hearing, but submitted timely correspondence in November 2016 to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is required in this case. In short, the Veteran claims to have served in the Southwest Asia Theater of Operations during the Gulf War. The Veteran's Form DD 214 reflects no foreign service and no sea service; however his service treatment records very clearly reflect he was stationed in Japan and reflects treatment at Iwakuni and in July 1998 reflects he was medevac to Yokosuka and ultimately underwent a medical evaluation board while in Japan. The RO's initial request to DPRIS for personnel records in January 2011 reflected the record had been found but access was not available and directed the RO to contact the service repository action office using secure DPRIS follow up messaging. The RO sent a follow up request in August 2011 and the August 2011 response indicated that the record was retired from the database, was no longer at Quantico and was on file at NPCR and directed the RO to follow up with the NPCR. However, there is no indication the RO did not request service personnel records from the National Personnel Records Center (NPRC) as advised. Accordingly, the Board must remand in order to obtain evidence as to where the Veteran served while on active duty. 38 C.F.R. § 3.159(c)(2). Private treatment records, received April 10, 2014, shows an assessment was made for chronic fatigue and fibromyalgia-related symptoms. The September 2012 assessment indicates that the Veteran had symptoms consistent with a "fibromyalgia type complex" that the physician thought was "likely initiated from a multitude of vaccines that, by history, were given in the war." The physician also commented that the Veteran's subjective complaints of chronic pain syndrome, neuropathy, and fatigue are all related to "some type of reactive process that has affected him like an autoimmune, neurological condition that is not easily explained, other than [the physician's] suspicion is related to the multiple vaccines that he got all at one time." The physician added, "These vaccines were given all at one time and not in scheduled sequential type fashion." The assessment for chronic fatigue did not contain any further commentary. As the record indicates the possibility of current diagnoses related to service, VA examinations are necessary. Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed chronic fatigue syndrome and fibromyalgia disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Request authorization from the Veteran to obtain all outstanding private treatment records for his claimed disabilities since October 2012. 2. Obtain VA treatment records since February 2013. 3. The RO should contact the National Records Personnel Center, or any other appropriate facility, and obtain the Veteran's service personnel records to verify whether the Veteran had service in the Southwest Asia Theater of Operations. Because these are federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records could not be found. 4. Schedule the Veteran for VA examinations in order to determine the nature and etiology of any currently diagnosed chronic fatigue syndrome and fibromyalgia. The examiner should note in the examination report that the claims file and the Remand have been reviewed. Following review of the claims file, the examiner should provide an opinion on the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's chronic fatigue syndrome is etiologically related to his active service, specifically to include vaccinations given during service? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's fibromyalgia is etiologically related to his active service, specifically to include vaccinations given during service? c) If, and only if, the Veteran's military personnel records confirm that he had service in the Southwest Asia Theater of Operations, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's chronic fatigue syndrome is etiologically related to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? d) If, and only if, the Veteran's military personnel records confirm that he had service in the Southwest Asia Theater of Operations, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's fibromyalgia is etiologically related to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? For all opinions provided, the examiner must provide a rationale (i.e., why or why not). 5. If, and only if, the Veteran's military personnel records confirm that he had service in the Southwest Asia Theater of Operations, schedule the Veteran for VA examinations in order to determine the nature and etiology of gastrointestinal pain, irritable bowel syndrome, and sleep disturbances. The examiner should note in the examination report that the claims file and the Remand have been reviewed. Following review of the claims file, the examiner should determine whether the Veteran has a current diagnosis for each of the claimed disabilities and then provide opinions on the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's gastrointestinal pain is etiologically related to his active service? i) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's gastrointestinal pain is etiologically related to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's irritable bowel syndrome is etiologically related to his active service, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? i) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's irritable bowel syndrome is etiologically related to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disturbances are etiologically related to his active service? i) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disturbances are etiologically related to an undiagnosed illness or medically unexplained chronic multisymptom illness characterized by a cluster of signs or symptoms? For all opinions provided, the examiner must provide a rationale (i.e., why or why not). 6. After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).