Citation Nr: 18148587 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 13-13 901 DATE: November 8, 2018 REMANDED Entitlement to service connection for a headache disorder, to include migraines, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and memory loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to July 1991 and January 2003 to May 2004. He also had earlier periods of active duty for training (ACDUTRA) from June 1979 to August 1979 and July 1980 to August 1980. The matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2013 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested to appear at a hearing before the Board. In August 2015, the Veteran was notified at his most recent address of record of a hearing before the Board scheduled for October 2015. The Veteran failed to appear for the October 2015 hearing. In June 2018, the Veteran was notified at his most recent address of record of a hearing before the Board for July 2018. This hearing was then rescheduled for August 2018 because the Veteran’s representative was unavailable for the July 2018 hearing. The Veteran then failed to appear for the August 2018 hearing and has not provided good cause reasons for his failure to appear. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). The Board notes that the Veteran’s claim of service connection for an acquired psychiatric disorder was originally adjudicated as claims for PTSD and memory loss. In Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. Therefore, the Board has combined the psychiatric claims of PTSD and memory loss into a claim of service connection for an acquired psychiatric disorder so all potential psychiatric diagnoses are considered. Similarly, the Veteran’s claim of service connection for a headache disorder was originally characterized as a claim of service connection for migraines. As the record reflects diagnoses of headaches, the Board has recharacterized the claim to ensure that any diagnosed headache disability is considered. See Clemons, 23 Vet. App. 1. 1. Entitlement to service connection for a headache disorder. The Veteran asserts that his headaches are the result of his exposure to burning oil wells while deployed in Southwest Asia. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The law provides compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran's service personnel records reflect that he served in Southwest Asia and participated in Desert Storm and Operation Enduring Freedom. Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016 to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term "objective indications of chronic disability" includes 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. 38 C.F.R. § 3.317(a)(3). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest). Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran is competent to report in-service events such as exposure to burning oil wells while deployed. The Veteran’s DD Form 214 shows that the Veteran was a Motor Transport Operator. This is consistent with frequent travel outside of military bases while deployed and possible exposure to burning oil wells. An October 1994 examination conducted for the Gulf War Registry noted that the Veteran complained of headaches after his September 1990 through July 1991 deployment to Southwest Asia. The Veteran was afforded a VA examination in January 2011 for a migraine disorder. The January 2011 VA examiner opined that the Veteran’s migraine disability is not at least as likely as not related to an in-service injury, event, or disease, including exposure to burning oil wells. In the same rationale, the VA examiner also noted that the Veteran’s migraine disability was of unknown etiology. In his rationale, the examiner indicated that there was no evidence of headaches during service. However, he did not note the Veteran’s October 1994 complaints of headaches during service or the Veteran’s long-term self-medication with large amounts of over the counter medicine to control his headaches. As the Veteran’s in-service complaints of headaches and the Veteran’s long-term self-medication were not considered by the VA examiner, the Veteran should be afforded another VA examination to assess the nature and etiology of his migraine disability. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that remand of this issue is now warranted to obtain an adequate medical opinion regarding the etiology of the Veteran’s headache disorder, to include whether it is a qualifying chronic disability under § 3.317. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and memory loss, is remanded. The Veteran’s appeal was certified to the Board in June 2014. For claims certified to the Board on or after August 4, 2014, Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) applies for rating purposes. See 80 Fed. Reg. at 14, 308. However, for claims pending before the Board prior to August 4, 2014, Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) applies. See 38 C.F.R. § 4.130. The Veteran received a VA examination in March 2011 for his PTSD under DSM-IV, and the examiner found that the Veteran did not have a current diagnosis of PTSD. The Veteran’s stated stressors for PTSD include the death of his friend while deployed together and the feeling of apprehension anytime he left base. The examiner did not evaluate the Veteran for other acquired psychiatric disorders. In the Veteran’s VA Form 9, dated May 2013, the Veteran contends that his PTSD symptoms have gotten progressively worse. Additionally, a November 2014 VA psychology note reflects a diagnosis of adjustment disorder with PTSD symptoms. The Board cannot make a fully-informed decision on the issue of the etiology of an acquired psychiatric disorder because no VA examiner has opined whether the Veteran has an acquired psychiatric disorder other than PTSD or whether the Veteran’s symptoms have progressed beyond the March 2011 VA examination such that he now has a diagnosis of PTSD. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period of July 2018 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include any records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and memory loss. The claims file should be made available to the clinician for review. Any indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The clinician should provide an opinion on the following questions: A) If PTSD is diagnosed, is it at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD is related or attributable to any in-service stressor event, including during his service in Iraq, or any stressor related to the fear of hostile military or terrorist activity? B) For any diagnosed acquired psychiatric disorder other than PTSD, including memory loss, is it at least as likely as not (50 percent or greater probability) that such disability was incurred in, related to, or caused by any incident of the Veteran’s military service, including during his service in Iraq? The clinician should provide a complete rationale for any opinion provided. If the clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disorder, to include migraines. The claims file should be made available to the clinician for review. Any indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The clinician should provide opinions on the following questions: A) If a chronic headache disorder is diagnosed, is it at least as likely as not (50 percent or greater probability) that the headache disorder is related or attributable to any incident during the Veteran’s military service, including as a result of his exposure to burning oil wells while deployed in the Southwest Asia theater of operations? B) For any headache symptoms that are not associated with a diagnosed chronic headache disability, is it at least as likely as not (50 percent probability or greater) that examination findings or other evidence demonstrates that the Veteran’s headache symptoms represent an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to the Veteran’s service in the Southwest Asia theater of operations? A “medically unexplained chronic multi-symptom illness” is defined as 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. The clinician should provide a complete rationale for any opinion provided. If the clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel