Citation Nr: 18154823 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-24 838A DATE: November 30, 2018 ORDER Entitlement to service connection for residuals of a left hamstring strain and left upper trapezius strain, claimed as muscle aches, is granted. Entitlement to service connection for a fatigue disability is granted. Entitlement to service connection for recurrent acute bronchitis, claimed as a respiratory disability, is granted. Entitlement to an initial evaluation of 10 percent for irritable bowel syndrome (IBS), is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation of 10 percent for headaches, is granted subject to the laws and regulations governing the payment of monetary benefits, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for chemical sensitivities is remanded. Entitlement to service connection for hair loss is remanded. Entitlement to service connection for numbness and tingling is remanded. Entitlement to an initial evaluation in excess of 20 percent for a back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of a left hamstring strain and left upper trapezius strain are related to active service. 2. The Veteran’s fatigue disability is related to active service. 3. The Veteran’s recurrent acute bronchitis is related to active service. 4. During the entire period on appeal the Veteran’s IBS manifested symptoms more nearly approximating moderate IBS and no more severe. 5. During the entire period on appeal the Veteran’s headache disability most nearly approximated symptoms of prostrating headaches once every two months, and no more. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a left hamstring strain and left upper trapezius strain are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a fatigue disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for recurrent acute bronchitis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for an initial 10 percent rating, and no higher, for IBS have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319. 5. The criteria for an initial 10 percent rating, and no higher, for headaches have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to August 1994, including service in Southwest Asia from May 1991 to October 1991. In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The case was previously before the Board of Veterans’ Appeals (Board) in August 2016 when it was remanded for additional development. Service Connection Entitlement to service connection for muscle aches. The Veteran contends that he has muscle aches and that he had muscle aches in service. The Veteran was afforded a VA examination in September 2018. The Veteran was noted to have been diagnosed with left hamstring strain and left upper trapezius strain. The Veteran reported that he had injured his left hamstring while running. He was seen in 1992 and 1993 for the injury. He related that he still had problems with his left hamstring with stretching the muscle. He also stated that he was in a fight and sustained injuries to his left upper back that gets worse if he turns his head wrong or pushes over the area. The Veteran was noted to have or had an injury to muscle group XIII, posterior thigh/hamstring muscles, biceps femoris, semimembranosus, semitendinosus, on the left. He was also noted to have or had an injury to the left muscle group XXII, muscles of the front of the neck, trapezius, sternocleidomastoid, hyoid muscles, sternothyroid, digastric. After examination the examiner reported that the above stated injuries occurred during service. The Veteran had no history of the same prior to entering service. He continues to have pain and loss of function in reference to the above muscle injuries. Therefore, the claimed conditions are at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The Board concludes that the Veteran has a current diagnoses of left hamstring strain and left upper trapezius strain that are related to the Veteran’s active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). On examination in September 2018 the Veteran was diagnosed with left hamstring strain and left upper trapezius strain and indicated that these injuries occurred during service. The examiner noted that the Veteran continued to have pain and loss of function due to the muscle injuries and opined that they were at least as likely as not incurred in or caused by service. As such, entitlement to service connection for residuals of a left hamstring strain and left upper trapezius strain, claimed as muscle aches, is granted. Entitlement to service connection for fatigue. The Veteran contends that he has fatigue and that he had fatigue in service. The Veteran was afforded a VA examination in September 2018. The examiner noted that the Veteran has never been diagnosed with chronic fatigue syndrome. The Veteran reported that he developed severe fatigue in service. The Veteran was noted to be diagnosed with depression at the end of his service time. It was noted that the Veteran did not have an acute onset of chronic fatigue syndrome and debilitating fatigue did not reduce daily activity level to less than 50 percent of pre-illness levels. However, the examiner did find signs and symptoms attributable to chronic fatigue syndrome, including palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasing 24 hours or longer after exercise, headaches, neuropsychological symptoms, and sleep disturbance. Further the Veteran was noted to have cognitive impairment attributable to chronic fatigue syndrome, described as poor attention and inability to concentrate. Posttraumatic stress disorder and PTSS were noted. The symptoms due to chronic fatigue syndrome restricted routine daily activities as compared to pre-illness levels but did not result in incapacitation. Thereafter, the examiner noted that the Veteran’s chronic fatigue syndrome impacted his ability to work. The fatigue was noted to result in him being late for work and poor concentration. The examiner stated that the Veteran did not have any chronic fatigue syndrome prior to service except for a DWI he received. He was evaluated after service and found to have depression, anxiety, PTSD, and alcohol use disorder. The Veteran’s disability pattern was noted to be diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Therefore, the claimed disability pattern is at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner noted that the Veteran did not have any symptoms consistent with chronic fatigue syndrome prior to service. They developed in and/or after being in the service. Therefore, the claimed condition is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The Board concludes that the Veteran has a fatigue disability that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 577 F.3d at 1363; 38 C.F.R. § 3.303(a). Upon examination in September 2018 the Veteran was found to have symptoms of chronic fatigue syndrome. After examination the examiner found that the Veteran had a disability patter that was diagnosable but was medically unexplained and that the disability pattern was at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner found that the Veteran did not have any symptoms consistent with chronic fatigue syndrome prior to service and that they developed in and/or after service. Finally, the examiner rendered the opinion that the claimed condition was at least as likely as not incurred in or caused by the Veteran’s claimed in-service injury, event or illness. As such, entitlement to service connected for a fatigue disability is granted. Entitlement to service connection for a respiratory disability. The Veteran seeks entitlement to service connection for a respiratory disability and contends that he had trouble breathing in service. The Veteran was afforded a VA examination in September 2018. The Veteran was noted to be diagnosed with recurrent acute bronchitis. The date of the diagnosis was reported to be 1991 on. After examination t was reported that the Veteran did not have allergic rhinitis or allergies noted on his service entrance examination. The Veteran was not on any medications for these conditions prior to entrance to service and began having problems in 1991 with sneezing, coughing, rhinorrhea, coryza, and recurrent viral bronchitis. The examiner stated that these illnesses and symptoms are consistent with allergic rhinitis and allergies. The examiner rendered the opinion that the claimed conditions are at least as likely as not incurred in or caused by the claimed in-service injury, events, or illnesses. The Board concludes that the Veteran has a current diagnosis of recurrent acute bronchitis that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1363; 38 C.F.R. § 3.303(a). Upon examination in September 2018 the Veteran was diagnosed with recurrent acute bronchitis. The examiner identified that the Veteran began having problems in 1991 with sneezing, coughing, rhinorrhea, coryza, and recurrent viral bronchitis. The examiner rendered the opinion that the claimed conditions were at least as likely as not incurred in or caused by the Veteran’s service. As such, entitlement to service connection for recurrent acute bronchitis is granted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable initial evaluation for IBS. The Veteran seeks entitlement to a compensable initial evaluation for IBS. The Veteran’s IBS is rated as irritable colon syndrome, under 38 C.F.R. § 4.114, Diagnostic Code 7319. Moderate irritable colon syndrome with frequent episodes of bowel disturbance and abdominal distress warrants a 10 percent evaluation. Severe colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent evaluation. 30 percent is the maximum schedular evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7319. On VA examination in May 2011, the Veteran reported that his diarrhea started in service and has been persistent. The Veteran was noted to report diarrhea. He had approximately 2 loose stools daily in the morning without abdominal pain. The Veteran was noted to have no dysphagia; pyrosis, epigastric or other pain, including associated with substernal or arm pain; hematemesis or melena; reflux or regurgitation; nausea or vomiting; hemorrhoids, anal infections, or incontinence; history of hospitalization or surgery related to gastrointestinal tract; history of trauma in the gastrointestinal tract; or history of neoplasm. The condition was noted to not cause any effect on usual occupation or daily activities. In August 2011 the Veteran denied nausea, vomiting, diarrhea, or constipation. In January 2014 the Veteran reported that he had diarrhea daily 2 to 3 times in the morning. There was some mucous. There was some abdominal discomfort. In September 2015 the Veteran was diagnosed with IBS and advised to increase fiber in his diet. In November 2015 the Veteran reported waking in the night with loose stools. In April 2016 the Veteran was noted to have between 3 to 4 loose stools per day, usually between 3 and 4 a.m. Immodium did not work. In September 2016 the Veteran reported that he had trouble having a bowel movement over the prior 48 hours. In September 2016 the Veteran was noted to have passed bright red blood into the toilet along with loose stool. On VA examination in June 2018, the Veteran was noted to be diagnosed with IBS. The Veteran reported that the IBS manifested as loose, watery bowel movements 4 to 5 times a day. No medication was prescribed for IBS. He related abdominal bloating and cramping. He may awake with cramping at night. He has been given fiber powders to mix with water but they did not work. The Veteran was not on continuous medication for control of intestinal condition and had not had any surgical treatment. The Veteran had diarrhea and abdominal distension, described as cramping and bloating, attributable to his intestinal condition. The Veteran did not have any episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. He did not have weight loss, malnutrition, serious complications, or general health effects attributable to an intestinal condition. Entitlement to an initial evaluation of 10 percent, and no higher, for IBS is warranted. During the entire period on appeal the Veteran’s IBS manifested symptoms of diarrhea, ranging from 2 to 4 times a day. The Veteran reported some abdominal discomfort, bloating, and cramping. As such, the Board finds that the symptoms more nearly approximately moderate IBS. However, at no point during the period on appeal did the Veteran’s IBS manifest severe symptoms of IBS, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. As such, entitlement to an initial evaluation of 10 percent, and no higher, for IBS, is granted. Entitlement to a compensable initial evaluation for headaches. The Veteran seeks a compensable initial evaluation for headaches. The Regional Office has evaluated the Veteran’s migraines as noncompensable under 38 C.F.R. § 4.12a, Diagnostic Code 8100. Under Diagnostic Code 8100, the next higher 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In December 2010 the Veteran as noted to report headaches that occurred periodically. He reported that they had been going on for several months. The headaches were at the right temple. He endorsed photophobia and occasional nausea. The Veteran was suspected to have migraine headaches versus tension. They could be cluster. The Veteran was afforded a VA examination in May 2011. The Veteran reported headaches on a continuing basis three to four times a week for 10 years. They were usually frontal and were treated with Aleve or Tylenol. He reported another type of headache that was hemicranial associated with light sensitivity, throbbing that lasted 12 hours and occurred one or two times a month. The Veteran reported that this had been diagnosed as migraine. The examiner noted that the headache duration was 4 to 12 hours and that the migraine could be severe with 50 percent being incapacitating. The symptoms were noted as throbbing, unilateral, temporal/frontal, associated with nausea plus or minus vomiting, and photophobia. Aleve or Tylenol was used for tension type headaches and the response was fair. There was no history of hospitalization or surgery. The severity of the headaches was noted to be less than one quarter of the time the attacks were prostrating. There were significant effects on the Veteran’s usual occupation that were described as increased absenteeism. The Veteran was noted to be unemployed for two to three years. In multiple treatment notes, including those dated in November 2013 and January 2014, the Veteran denied headaches. On VA examination in June 2018, the Veteran was noted to be diagnosed with tension headaches. The Veteran reported headaches that were usually right temporal and may radiate to the back of the skull 4 to 5 times a month, lasting 3 to 4 hours and relieved by over the counter Excedrin (aspirin, acetaminophen, and caffeine). Headaches were prostrating every 2 to 3 months and may last 1 to 3 days. The Veteran reported that he had been in the emergency room in the past but not the prior 12 months. He reported that he had never been treated by a physician for headaches. The Veteran’s treatment plan did not include taking medication for the headaches. He experienced headache pain that was localized to one side of the head. He experienced nausea and sensitivity to light and sound. The duration of the headaches was less than 1 day. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner noted that there were no other pertinent physical findings, complications, conditions, signs or symptoms related ot the headaches. The examiner noted that the headaches impacted the Veteran’s ability to work. The Veteran reported that he left work with headaches 1 to 2 years prior. Entitlement to an initial evaluation of 10 percent, and no higher, for headaches, is warranted. During the entire period on appeal the Veteran was noted to report periodic headaches. In May 2011, although the Veteran was noted to have headaches three to four times week, it was noted that the Veteran had headaches that were incapacitating approximately once every two months. In June 2018, although the Veteran was noted to have some headaches 4 to 5 times a month, he had other headaches that were prostrating every 2 to 3 months. The Board finds that the Veteran’s headache disability more nearly approximated symptoms of prostrating headaches once every two months. The Board finds that the Veteran’s headache disability did not manifest symptoms of prostrating headaches averaging more than one every two months. Therefore, entitlement to an initial evaluation of 10 percent, and no higher, for headaches, is granted. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. The August 2018 VA examination and opinion are inadequate and another examination is needed. The examiner reported test results that diagnose hearing loss for compensation purposes and diagnosed bilateral hearing loss, but also noted that test results were not valid for rating purposes because they were inconsistent with organic hearing loss. The examiner stated that an etiology opinion could not be provided without resort to speculation because test results were inconsistent. On remand, the examiner should address the significance of the inconsistent test results and diagnosis and offer an etiology opinion or further explain why an etiology cannot be offered. Entitlement to service connection for chemical sensitivities and hair loss is remanded. The Board remanded the claims before because it was unclear whether the Veteran’s reported chemical sensitivities, hair loss, and numbness and tingling represented separate disabilities or manifestations of his service-connected disabilities. The report of a September 2018 VA examination is inadequate because it does not include any discussion of the Veteran’s reported symptom of chemical sensitivity. Regarding hair loss, there is a report that the hair loss on the scalp appeared to be thinning out in a male pattern baldness pattern. The examiner did not comment on whether the reported symptoms of chemical sensitivities and/or hair loss are either separate disabilities or manifestations of service-connected disabilities. As such, another VA medical examination is necessary. Entitlement to service connection for numbness and tingling is remanded. The Veteran was afforded a VA examination in September 2018; however, that examination in inadequate. The examiner did not provide adequate rationale regarding whether the Veteran’s bilateral lower extremity paresthesias were related to service or were a symptom of his service-connected disabilities. As such, another VA medical examination is necessary. Entitlement to an evaluation in excess of 20 percent for a back disability is remanded. A June 2018 VA back examination is inadequate because it is unclear whether the reported ranges of motion were performed in active motion or passive motion and results for both ranges of motion, if performed, are not reported. The explanation that it would be speculative to discuss whether pain, weakness, fatiguability or incoordination would significantly limit functional ability with repeated use over a period of time is inadequate because there is no explanation as to whether an estimate of the functional impact could be provided. As such, the Board finds it necessary to afford the Veteran another examination. Entitlement to a TDIU is remanded. In the VA addendum dated in June 2018 the Veteran was reported to work as an IT contractor. He reported that his job was in jeopardy because his time missed from work in the prior 12 months, mostly secondary to IBS and headaches. The Veteran’s employment status is unclear, to date, the Veteran has not submitted a VA Form 21-8940 regarding his education and employment history. As such, the claim is remanded for attempts to clarify the Veteran’s employment status. The matters are REMANDED for the following action: 1. The AOJ should forward the appropriate form (VA Form 21-8940) to the Veteran for completion. 2. Thereafter, attempt to clarify the Veteran’s employment and education history during the period on appeal. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hearing loss. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. If the examiner cannot render an opinion without resort to speculation, the examiner must provide complete rationale. 4. Schedule the Veteran for appropriate VA examinations to determine the nature and likely etiology of his chemical sensitivities, hair loss, and numbness and tingling complaints, to include whether he suffers from an undiagnosed disability. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner(s) should answer the following: a) Does the Veteran suffer from any chemical sensitivities, hair loss, and/or tingling and numbness that cannot be attributed to a known diagnosis? b) If any of chemical sensitivities, hair loss, and/or tingling and numbness symptoms/conditions cannot be attributed to a known diagnosis, are they signs or symptoms of an undiagnosed illness? c) If the symptoms/conditions listed in a) can be attributed to a known diagnosis, is it at least as likely as not (within the realm of 50 percent probability or greater) that they were caused or aggravated by service, to include environmental conditions in the Persian Gulf, or otherwise as shown in the service treatment records? The examiner(s) is to specifically consider the prior examinations and address the Veteran’s competent assertions regarding his in-service and post service symptoms. The examiner(s) must comment upon whether any of the symptoms listed in a) represent manifestations of the service connected IBS, headache, back, neck, fibromyalgia, left shoulder, skin, tinnitus, and/or psychiatric disabilities. The examiner(s) must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner(s) determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 5. Schedule the Veteran for an examination to determine the current severity of his back disability. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the back disabilities. The appropriate DBQs should be filled out for this purpose, if possible. The examiner should specifically test the Veteran’s back ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner(s) should attempt to estimate additional functional loss of the back due to repetitive use and/or flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran’s flares by any available means, to include the Veteran’s lay statements and all other evidence of record. (Continued on the next page)   6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the TDIU claim. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel