Citation Nr: 1804019 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness or other qualifying chronic disability. 2. Entitlement to service connection for chronic joint pain, to include as due to an undiagnosed illness or other qualifying chronic disability. 3. Entitlement to service connection for chronic muscle pain, to include as due to an undiagnosed illness or other qualifying chronic disability. 4. Entitlement to service connection for chronic neuropathy, to include as due to an undiagnosed illness or other qualifying chronic disability. 5. Entitlement to service connection for a chronic intestinal disability, to include ulcerative colitis with irritable bowel syndrome, to include as due to an undiagnosed illness or other qualifying chronic disability. 6. Entitlement to service connection for chronic psychiatric disabilty, to include as due to an undiagnosed illness or other qualifying chronic disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his mother ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1992, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in September 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2017, the Veteran and his mother testified at a hearing before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing has been associated with the claims file. The Board notes that in May 2011 the Veteran originally submitted claims of entitlement to service connection for irritable bowel syndrome/ulcerative colitis as well as "undiagnosed illness." The September 2012 rating decision denied entitlement to service connection to "ulcerative colitis with irritable bowel syndrome" as well as "Undiagnosed illness (Gulf War Syndrome)," focusing its analysis solely on the Veteran's diagnosed ulcerative colitis with irritable bowel syndrome, peripheral neuropathy, and sleep apnea. However, at his May 2017 Board videoconference hearing, the Veteran testified as to additional undiagnosed symptoms which he attributed to his service in Southwest Asia, to include joint pain, muscle pain, and psychiatric symptomatology. As such, the issues have been recharacterized as listed on the title page of this Remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for fatigue, joint pain, muscle pain, neuropathy, intestinal disability, and psychiatric symptomatology, to include as due to an undiagnosed illness or other qualifying chronic disability. Unfortunately, the Board finds that additional development must be undertaken before these claims can be decided on the merits. The Veteran was provided with a Gulf War General Medical Examination in August 2012. The examination report acknowledged that the following list of signs and symptoms may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness" for which a Gulf War Veteran may be presumptively service connected: fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, upper or lower respiratory system signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. However, the examination report limited its analysis to intestinal symptoms, peripheral nerve symptoms, and sleep disturbance. As discussed above, at his May 2017 Board videoconference hearing, the Veteran testified as to additional undiagnosed symptoms which he attributed to his service in Southwest Asia, to include fatigue, joint pain, muscle pain, and psychiatric symptomatology. As such, the Veteran should be provided with a new examination which addresses the nature and probable etiology of all the symptoms that he associates with an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007)(once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). In addition, with respect to the issue of entitlement to service connection for intestinal disability, the August 2012 VA Gulf War General Medical Examination report concluded that the Veteran's diagnosed ulcerative colitis was less than likely as not incurred in or caused by environmental hazards associated with time spent in the Gulf War, and that it was less than likely as not caused by or a result of his military service. In support of these conclusions, the examiner explained that service medical records were absent of treatment or diagnosis related to ulcerative colitis, and that the Veteran was diagnosed with the aforementioned condition many years after his discharge from the service. The Board emphasizes that although the Veteran's VA treatment records did not reveal a diagnosis of ulcerative colitis, these records did document that he sought treatment for diarrhea of four days' duration in June 1991 when he was serving in Southwest Asia. In addition, the Veteran and several of the Marines who served with him in Southwest Asia provided lay statements indicating that the Veteran experienced stomach problems while in service that manifested as diarrhea and vomiting. In his February 2014 substantive appeal, the Veteran explained that he had many episodes of diarrhea and vomiting while serving in northern Iraq, and that these symptoms persisted after he was discharged from service. Significantly, the August 2012 VA examiner addressed neither the documented in-service diarrhea nor the subsequent lay statements competently describing a continuity of bowel symptomatology since service into the present day. As such, the Veteran should be provided with a new examination which adequately addresses the documented in-service treatment for diarrhea as well as the lay statements describing continuity of symptomatology. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA Gulf War General Medical Examination. The claims file should be provided to, and reviewed by, the examiner. The examiner should state whether the Veteran's symptoms, to include fatigue, joint pain, muscle pain, neuropathy and psychiatric symptoms, can be ascribed to any known clinical diagnoses. If diagnosed disorders are established, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder had its onset during any period of the Veteran's active duty service or is otherwise related to such service. The examiner should consider the Veteran's lay statements and testimony with regard to onset and continuity when forming the opinion. If the examiner rejects any portion of the Veteran's medical history concerning his symptoms, treatment, or diagnoses, then he/she must fully explain his/her reasoning. If any of the Veteran's symptoms, to include fatigue, joint pain, muscle pain, psychiatric symptoms, and/or neuropathy, cannot be ascribed to any known clinical diagnosis, then specify whether the Veteran has objective indications of a chronic disability or multisymptom illness, resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The reasoning for all opinions offered should be provided. If an opinion cannot be expressed without resort to speculation, then the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran should be scheduled for a VA intestinal disorders examination by a qualified physician. The physician should obtain a detailed past medical history, which should be accepted as true unless otherwise indicated. If the examiner rejects any portion of the Veteran's medical history concerning his symptoms, treatment, or diagnoses, then he/she must fully explain his/her reasoning. The physician should opine on the following: (a) Whether it is as likely as not (50 percent or greater probability) that any intestinal disorder shown during this appeal, to include irritable bowel syndrome and/or ulcerative colitis, was first manifested in service or is otherwise etiologically related to service. The examiner should address the Veteran's theory that his problems are related to environmental exposures during his active duty in Southwest Asia, and discuss the significance, if any, of the documented diarrhea of four days' duration in June 1991 while in Southwest Asia. (b) Whether any of the Veteran's intestinal symptoms are a "qualifying chronic disability" resulting from an undiagnosed illness or part of medically unexplained chronic multisymptom illness. All pertinent evidence in the claims files should be made available to and reviewed by the physician. The examination report must include a complete rationale for all opinions and conclusions reached. If an opinion cannot be expressed without resort to speculation, then the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After reviewing the examination reports for compliance with this order, undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of all additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond before the record is returned to the Board for further 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).