Citation Nr: 1806422 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-35 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for dermatitis of unknown etiology, to include rashes as due to an undiagnosed illness. 2. Entitlement to service connection for rhinitis. 3. Entitlement to service connection for chronic fatigue, to include chronic fatigue syndrome (CFS), or as due to an undiagnosed illness. 4. Entitlement to service connection for dyspnea and chest pain, to include as due to an undiagnosed illness. 5. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 6. Entitlement to service connection for a cognitive disorder and an acquired psychiatric disorder (to include memory and sleeping issues). 7. Entitlement to service connection for joint aches, to include fibromyalgia, or as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1982 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at an August 2017 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Subsequent to the most recent Supplemental Statement of the Case issued in July 2017, additional documents were associated with the Veteran's claims file, without a waiver of review by the Agency of Original Jurisdiction (AOJ) (though the Veteran did waive review of two documents submitted). In any event, as the Veteran's claims are being withdrawn, granted or remanded, there is either no prejudice to the Veteran or the AOJ will have the opportunity to consider such documents in the first instance on remand. In addition, a September 2013 rating decision addressed multiple issues. A November 2013 VA Form 21-0958 (Notice of Disagreement [NOD]) was filed in response to this rating decision. An October 2017 letter to the Veteran from the AOJ recognized receipt of this NOD. In addition, the electronic Veterans Appeals Control and Locator System (VACOLS) noted receipt of the NOD. As the AOJ has acknowledged receipt of the NOD and VACOLS indicates that the NOD has been recognized, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Manlincon is therefore not applicable in this case as to this rating decision/NOD. The issues of entitlement to service connection for dermatitis and rhinitis are being adjudicated in this decision and the remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In August 2017, prior to the promulgation of a decision in the appeal, the Board received notification that a withdrawal of the appeal of entitlement to service connection for dermatitis was requested. 2. Rhinitis is related to the Veteran's active service. 3. The Veteran, a Persian Gulf Veteran, has a chronic disability manifested by chronic fatigue that cannot be attributed to a known clinical diagnosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for dermatitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Rhinitis was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 3. Chronic fatigue is considered to have been incurred in the Veteran's Persian Gulf War service. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dermatitis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, the Veteran has withdrawn the appeal of entitlement to service connection for dermatitis and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Specifically, at the August 2017 Board hearing, the Veteran's representative made a declaration affirming the withdrawing of this appeal. See August 2017 Board Hearing Transcript, page 2. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and it is dismissed. II. Rhinitis The Veteran filed a claim in December 2010 and listed entitlement to service connection for "Gulf War Syndrome." An accompanying statement from the Veteran's representative listed various symptoms, to include, as relevant, sore throats and sinus problems. The Veteran's service treatment records (STRs) included an August 1983 STR that stated that the Veteran complained of congestion for six months. An assessment was noted of season allergies with rhinitis. The Veteran was afforded a VA examination in February 2011 and a diagnosis was noted of rhinitis with post nasal drip causing pharyngitis. A negative opinion was provided that addressed whether various symptoms (to include sore throats and sinus problems) were related to "environmental toxin exposure while in Southwest Asia." The Veteran was afforded a VA examination in July 2012 from Dr. M.B. A diagnosis was provided of vasomotor rhinitis. A negative opinion was provided that addressed whether such was related to "toxic or environmental exposures in the Gulf." The opinion also stated that the Veteran's "STR's are silent for a rhinitis or sinus condition." This statement is contradicted by the evidence of record in that an August 1983 STR referenced rhinitis, as discussed above. Accordingly, the July 2012 VA opinion regarding rhinitis is based on an inaccurate factual premise and therefore is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993) (stating that "[a]n opinion based upon an inaccurate factual premise has no probative value"). A VA opinion was obtained in June 2017 from Dr. M.B. The opinion stated that the condition claimed was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale referenced the diagnosis of vasomotor rhinitis noted on the July 2012 VA examination report and that the Veteran was being treated with daily medication. The rationale further stated that: STR's document an encounter on 8/2/83 (prior to [Gulf War] deployment) which diagnosed seasonal allergic rhinitis for a 6 month complaint of stuffy nose/congestion since moving to Texas. This is most likely the same rhinitis condition which was severe enough in 2012 to require daily medication. It is not uncommon for this condition to wax and wane depending on the environmental triggers. Therefore, it is at least as likely a[s] not that the rhinitis (claimed as rhinitis with post nasal drip causing phar[y]ngitis to include sore throats and sinus) was incurred in or caused by (the) congestion during service. Upon review, the Board finds that rhinitis is related to the Veteran's active service. The positive June 2017 VA opinion was the only competent evidence of record that addressed whether the Veteran's current rhinitis was related to his in-service rhinitis. This positive opinion was provided by a doctor that had previously examined the Veteran and was supported by an adequate rationale. The Board finds this opinion to be the highly probative as to the issue of whether the Veteran's rhinitis is related to his active service. Accordingly, the Board concludes that rhinitis was incurred in active service and to this extent the Veteran's claim is granted. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). III. Fatigue/CFS As noted, the Veteran filed a claim in December 2010 and listed entitlement to service connection for "Gulf War Syndrome" and an accompanying statement from the Veteran's representative listed various symptoms. For a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which includes a medically unexplained chronic multisymptom illnesses (such as CFS or fibromyalgia). See 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317 (2017). In addition, service connection may be established for a qualifying chronic disability that cannot be attributed to a known clinical diagnosis, specifically for an undiagnosed illness. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). 38 C.F.R. § 3.317 (2017) provides that "objective indications of a qualifying chronic disability" are required and also includes an example list (that is not limited to the examples provided) of signs or symptoms that may be manifestations of undiagnosed illness, which includes fatigue. The AOJ conceded that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. See, e.g., October 2012 Statement of the Case. As such, he is a Persian Gulf Veteran. With respect to fatigue, 38 C.F.R. § 4.88a (2017) states that "[f]or VA purposes, the diagnosis of [CFS] requires" and subsequently lists various specific criteria. A February 2011 VA examination report stated that the Veteran "does not meet criteria for [CFS]. He has fatigue that is chronic of multifactorial etiologies, including anemia on his recent blood test and poor sleep quality. Please see psychiatric evaluation for further details." No clear rationale was provided for the conclusion that fatigue was related to anemia and poor sleep quality. February 2011 VA blood test results were noted as showing the Veteran as being anemic. A February 2011 VA mental examination report noted that the Veteran "also experiences extreme unexplainable fatigue" and noted diagnoses of adjustment disorder with depressed mood in remission, dyssomnia and cognitive disorder. A July 2012 VA examination report stated that the "Veteran does not currently meet the 1994 International Case Definition or the [Veterans Health Administration] criteria for CFS," with additional reference made to some of the criteria from 38 C.F.R. § 4.88a (2017). The examination report also stated that the Veteran "does have chronic fatigue which is most likely due to anemia and his mental health condition (see Psychiatry Report 7/10/12)." No clear rationale was provided for the conclusion that fatigue was related to anemia and a mental health condition. The referenced July 2012 VA mental disorders examination report noted diagnoses of adjustment disorder, cognitive disorder and undifferentiated somatoform disorder. Fatigue was not listed as a symptom attributable to a mental disorder, but it was stated that there were "numerous complaints of bodily/physical dysfunction that appear to be to a degree not substantiated by medical findings." Various private medical evidence contained information contrary to that outlined in the above VA examination reports. While the February 2011 and July 2012 VA examination reports referenced fatigue as being due to anemia, a March 2011 treatment note from Dr. J.L. referenced that the Veteran was seen by VA and that "labs showed mild anemia" and reference was made to a recheck of labs and that the results "were fine," indicating that anemia was not found. The medical evidence of record did not appear to otherwise (beyond the evidence discussed above) reference a diagnosis of anemia. Also, while the February 2011 and July 2012 VA examination reports referenced fatigue as being due to poor sleep quality or mental health condition, a detailed December 2012 statement from psychologist L.G. (who noted that she had treated the Veteran since April 2012) stated that the Veteran met the criteria for major depressive disorder and that "his depression diagnosis is Secondary to [CFS]." This suggests that the Veteran's mental health condition was secondary to CFS, rather than fatigue being secondary to a mental health condition, as was suggested by the VA examiners. In addition, various evidence from the Veteran's private primary care physician Dr. J.L referenced fatigue and a diagnosis of CFS. In this regard, an August 2010 statement referenced that the Veteran was suffering from various symptoms, to include fatigue, and that "[t]hese issues are at least likely as not related to his deployment to the First Gulf War." A July 2012 statement referenced the Veteran as "suffering from a constellation of symptoms such as chronic fatigue" and stated that "[i]t is hard to diagnose the exact nature of [the Veteran's] illness as labs, imaging, cardiac workup have all came back as negative" and that "[i]t is my opinion that it is at least likely as not that these illnesses are related to his time in the service." A December 2012 statement stated that the Veteran "does suffer from [CFS]" and reference was made to a review of medical records dating to August 2008 and to various tests conducted that "were fine." More recently, a November 2017 statement was submitted from Dr. J.L. that stated that the Veteran "has had [CFS] for a while." Also, an August 2013 VA general medical examination report (conducted regarding a TDIU claim) referenced that the Veteran was "diagnosed with chronic fatigue" and marked a box noting a diagnosis of CFS, but did not provide any discussion or explanation. In review, two VA examination reports, from February 2011 and July 2012, noted that the Veteran did not have CFS. These examination reports noted the presence of fatigue, but stated such was due to anemia, poor sleep or mental health condition. As discussed, private medical evidence was of record contrary to these conclusions, specifically that anemia was subsequently not shown following testing and an opinion was provided stating that the Veteran's mental health condition was secondary to CFS. In addition, subsequent to the VA examinations, December 2012 and November 2017 statements from the Veteran's private primary care physician Dr. J.L. specifically indicated that the Veteran had CFS. For VA purposes, however, the diagnosis of CFS has specific requirements as outlined in 38 C.F.R. § 4.88a (2017). It is not clear from Dr J.L.'s statements that the diagnosis of CFS he provided was based on or considered these specific requirements. Overall, the evidence establishes that the Veteran does not have CFS for VA purposes. However, he has chronic fatigue and the evidence that attempts to attribute the disability to known etiology are unconvincing. As such, the Board finds that the Veteran, a Persian Gulf Veteran, has a chronic disability manifested by chronic fatigue that cannot be attributed to a known clinical diagnosis. The Board therefore concludes that chronic fatigue is considered to have been incurred in the Veteran's Persian Gulf War service. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). As such, to this extent, the Veteran's claim is granted. ORDER The appeal of entitlement to service connection for dermatitis is dismissed. Entitlement to service connection for rhinitis is granted. Entitlement to service connection for chronic fatigue is granted. REMAND I. Dyspnea/Chest Pain; Headaches; Cognitive Disorder/Acquired Psychiatric Disorder As will be further explained, these claims are all inextricably intertwined with the chronic fatigue claim that was granted above and therefore they must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). This is because evidence suggested that such conditions are secondary to the Veteran's chronic fatigue. In this regard, a November 2017 statement from Dr. J.L. referenced "chest pain and shortness of breath," "tension type headaches" and "cognitive disorders which include depression, memory issues, anxiety, dyssomnia, adjustment disorder, problems concentrating and sleep disorders" and stated that "[i]t is my opinion that these symptoms are secondary to his service connected [CFS]." Also, a December 2012 letter from psychologist L.G. stated that the Veteran "has experienced a host of symptoms including cognitive dysfunction (including memory impairment and poor concentration)...unrefreshing sleep, headaches...neurological and neuropsychological symptoms...chest pains not associated with a heart condition...shortness of breath" and stated that "[t]hese symptoms are all listed by the National Gulf War Resource Center as legitimate symptoms of [CFS]." Further, at the August 2017 Board hearing, secondary service connection was specifically raised by the Veteran's representative, who stated that "the major depression disorder...the migraines, tension headaches and the chest pain are all essentially secondary to the chronic fatigue syndrome and/or fibromyalgia....if we can get service connection for the chronic fatigue or fibromyalgia, I would then ask you to consider those other...conditions on the secondary basis to those." In light of the evidence and contentions, on remand a VA examination is necessary and the examiner will be asked to address what symptoms are associated with the Veteran's chronic fatigue, to include any disabilities caused or aggravated by such. With respect to dyspnea/chest pain, the evidence currently in conflict and the examiner will be asked for clarification on remand. In this regard, the February 2011 and July 2012 VA examination reports referenced the Veteran as having cardiomyopathy. Citation was made to a January 2010 nuclear stress test that stated "EKG component of test negative for ischemia. Perfusion images show mild left ventricular dilation and mild radiotracer hereogeneity, esp at distal anterior and anteroseptal wall - most likely dilated cardiomyopathy but mild ischemia of distal LAD cannot be completely excluded." The February 2011 VA examination report noted a diagnosis of "[d]yspnea and chest pain due to mild dilated cardiomyopathy" and it was stated that "[n]ormal lung based on spirometry and chest xray and history/cardiac evaluation more consistent with a cardiac origin for dyspnea than pulmonary pathology." The July 2012 VA examination report referenced "[c]ardiomyopathy with chest pain and dyspnea is of undetermined etiology," but did not include a rationale for this conclusion. On the contrary, a May 2010 private medical record from Dr. S.R. included the results of a May 2010 chest CT and an impression was noted of "[n]ormal exam. No evidence of abnormality to explain this patient's chronic substernal chest pain," a July 2012 statement from Dr. J.L. referenced "chronic chest pain" and that "cardiac workup have all came back as negative," a December 2012 letter from psychologist L.G. referenced "chest pains not associated with a heart condition," a December 2012 statement from Dr. J.L. referenced "chest pain and shortness of breath" and stated that "[t]he exact cause is unknown as all cardiac, pulmonary and GI tests were fine" and a November 2017 statement from Dr. J.L. referenced "chest pain and shortness of breath" and stated that the Veteran "has had negative cardiac and pulmonary work ups." As such, the evidence is not clear as to whether the Veteran's reported dyspnea/chest pain are related to a cardiac condition, specifically cardiomyopathy, and the examiner will be asked to clarify such on remand. With respect to headaches, the July 2012 VA examination report noted a diagnosis of tension headaches and stated that "[i]n the [V]eteran's own words, he associates his headaches with 'anxiety and stress.' See Psychiatry Report 7/10/12." It does not appear that the July 2012 VA mental examination report included this information and on the Veteran's December 2012 VA Form 9 (Appeal to [the Board]) he stated that "[t]he examiner also stated in their opinion I said things I didn't say such as my tension headaches were from anxiety and stress." As such, on remand, the examiner will be asked to address whether the Veteran's headaches cannot be attributed to any known clinical diagnosis With respect to the cognitive disorder/acquired psychiatric disorder claim, multiple acquired psychiatric disorders were referenced by the evidence of record and the claim has thus been characterized more broadly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, the AOJ has included the issue of sleep issues as part of this claim. The Veteran is service-connected for tinnitus. The April 2011 VA examination report stated that the Veteran reported difficulty sleeping and that "[t]his is particularly due to tinnitus." A diagnosis was noted of dyssomnia. The July 2012 VA examination report stated that the Veteran "states that his tinnitus also prevents him from getting to sleep and getting back to sleep." In the section where the examiner stated that the Veteran did not meet the criteria for CFS, it was stated that the Veteran's "dyssomnia is related to his tinnitus." In light of this reasonably raised issue of secondary service connection, on remand, an opinion will also be requested as to whether a sleep disorder, to include dyssomnia, is secondary to service-connected tinnitus. II. Joint Aches/Fibromyalgia The evidence is currently not clear as to whether the Veteran has or has had fibromyalgia. As referenced, presumptive service connection may be established for fibromyalgia in the case of Persian Gulf veterans, such as the Veteran in this case. The July 2012 VA examination report noted that the Veteran did "not currently meet the diagnostic criteria for fibromyalgia." A July 2012 statement from Dr. J.L stated that the Veteran "is suffering from a constellation of symptoms such as...fibromyalgia" and a December 2012 statement from Dr. J.L. stated that the Veteran "has Fibromyalgia. He was diagnosed in February 2010...I[t] is my opinion that his joint pains, muscle pains, and soft tissue pains in certain trigger points- is related to his diagnosis of Fibromyalgia." An August 2013 VA general medical examination report (conducted regarding a TDIU claim) referenced that the Veteran was "diagnosed with Fibromyalgia," but did not provide any discussion or explanation. Dr. J.L.'s more recent November 2017 statement, however, only referenced CFS and did not reference fibromyalgia. As such, on remand, the examiner will be asked to clarify whether the Veteran has had fibromyalgia during the appeal period. The examiner will also be asked to address whether there are any joint aches that cannot be attributed to any known clinical diagnosis. III. All Claims While on remand, all outstanding VA treatment records must be obtained. In addition, the Veteran appeared to primarily receive private medical care (but an October 2017 VA treatment note referenced him switching his medical care "primarily to the VA"). As such, the Veteran is invited to submit any relevant outstanding private medical records (or releases for such providers, which would allow VA to obtain the identified records). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are from November 2017). 2. Afford the Veteran an appropriate VA examination or examinations with respect to the claims being remanded. The examiner is asked to provide an opinion addressing the following: a. What symptoms are associated with the Veteran's chronic fatigue, to include any disabilities caused or aggravated by such chronic fatigue. In this regard, attention is invited to a November 2017 statement from Dr. J.L. that referenced "chest pain and shortness of breath," "tension type headaches" and "cognitive disorders which include depression, memory issues, anxiety, dyssomnia, adjustment disorder, problems concentrating and sleep disorders" and stated that "[i]t is my opinion that these symptoms are secondary to his service connected [CFS]." Attention is further invited to a December 2012 letter from psychologist L.G., which stated in part that the Veteran's "depression diagnosis is Secondary to [CFS]." b. During the appeal period (dating to approximately December 2010), has the Veteran had fibromyalgia? The examiner is asked to consider and reconcile the evidence noting a diagnosis of fibromyalgia and the evidence not noting a diagnosis, which includes a July 2012 VA examination report that noted that the Veteran did "not currently meet the diagnostic criteria for fibromyalgia" and the July 2012 and December 2012 statements from Dr. J.L. that noted a diagnosis of fibromyalgia, as well as an August 2013 VA general medical examination report that referenced that the Veteran was "diagnosed with Fibromyalgia." If a diagnosis of fibromyalgia is provided, the examiner is asked to address what symptoms are associated with fibromyalgia, to include any disabilities caused or aggravated by fibromyalgia. c. Whether a sleep disorder, to include tinnitus, is caused or aggravated by service-connected tinnitus. While review of the entire claims folder is required, attention is invited to the July 2012 VA examination report that stated that the Veteran's "dyssomnia is related to his tinnitus." d. Whether there are signs or symptoms that cannot be attributed to any known clinical diagnosis. In this regard, the examiner is asked to specifically address the following symptoms: i. Dyspnea/chest pain. The examiner is asked to consider and reconcile the February 2011 and July 2012 VA examination reports that, essentially, associated such symptoms with cardiomyopathy and the various private medical evidence (cited in the body of the remand) that referenced the Veteran as, essentially, having negative work ups, to include cardiac work ups. ii. Headaches. iii. Joint aches. iv. Memory and sleeping issues. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 3. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs