Citation Nr: 1807800 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-18 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 2. Entitlement to service connection for a disorder of the left upper extremity, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 3. Entitlement to service connection for a disorder of the left lower extremity, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. 4. Entitlement to service connection for fatigue, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active duty service from March 1979 to March 1999, and is in receipt of the Kuwait Liberation Medal which is sufficient evidence of service in Southwest Asia during the Persian Gulf War. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision from the Department of Veterans Affairs (VA) RO in Chicago, Illinois which, in part, denied service connection for a respiratory disorder, disorders of the left upper and lower extremities, and fatigue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he experiences a respiratory disorder, disorders of the left upper and lower extremities, and fatigue associated with his Persian Gulf service. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117(f) (2014); 38 C.F.R. § 3.317(d) (2017). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective October 24, 2017, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 81 Fed. Reg. 71382 (2017). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117 (2014); 38 C.F.R. § 3.317(a), (b) (2017). As above, the Veteran is in receipt of the Kuwait Liberation Medal which is sufficient evidence of service in Southwest Asia during the Persian Gulf War. Significantly, the Veteran's service treatment records show that he was diagnosed with left sided traumatic neurotmesis of the palmar digital nerve and a branch of the ulnar nerve in October 1999. Service treatment records also show that the Veteran was treated for a laceration of the left leg in May 1988. However, service treatment records are negative for chronic respiratory complaints and/or fatigue. However, the Veteran contends that he has experienced respiratory problems, left upper and lower extremity joint pain, and fatigue since service. On VA examinations in May 2009, there was no evidence of any respiratory, left upper and/or lower extremity disorders, or fatigue disorder. With regard to the lungs, the examiner wrote that the Veteran had a normal respiratory examination and that no respiratory disorder had been diagnosed by chest X-ray, pulmonary function tests, or any other physician. Unfortunately, while the May 2009 VA examiner indicated that the Veteran did not have a diagnosed respiratory disability manifested by the Veteran's claimed symptoms, the examiner did not specifically address whether the Veteran's respiratory complaints are manifestations of "undiagnosed illness" as defined by 38 C.F.R. § 3.317. Furthermore, the examiner did not even address the Veteran's left upper/lower extremity pain and/or fatigue to include whether such complaints are manifestations of "undiagnosed illness" as defined by 38 C.F.R. § 3.317. Furthermore, the May 2009 VA examination report does not address other significant medical evidence and/or potential diagnoses regarding the claimed respiratory complaints, left upper/lower extremity pain, and/or fatigue in the claims file. Specifically, a May 2000 VA examination report shows a diagnosis of "laceration of the left hand, residuals with sensory neuropathy of the left little finger." Also, a May 2000 VA treatment record notes complaints of insomnia and frequent fatigue. Furthermore, in the Veteran's October 2009 notice of disagreement, he indicated that he had been diagnosed with "joint pain" in 2000-01 as well as partial pneumothorax from 2003-04. As the medical evidence currently of record is inadequate to resolve these claims, the Board finds that a remand for further VA examination and opinions is warranted. See 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the AOJ should arrange for the Veteran to undergo a VA Gulf War examination, by an appropriate physician. Also, as above, in the Veteran's October 2009 notice of disagreement, the Veteran indicated that he had been diagnosed with "joint pain" in 2000-01 as well as partial pneumothorax from 2003-04. Furthermore, in the Veteran's June 2014 substantive appeal he wrote that he received VA treatment on occasion but primarily received his medical care through private providers. However, a review of the claims file is negative for any private treatment records. As such, on remand an attempt should be made to obtain these records. Finally, recent VA treatment records in the claims file are dated through April 2014. As it appears the Veteran receives continuous treatment through VA, the Board finds the RO should obtain any outstanding VA treatment records dated from April 2014 to the present. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his claimed respiratory disorder, disorders of the left upper and lower extremities, and fatigue since service, specifically records concerning a diagnosis of "joint pain" in 2000-01 as well as a diagnosis of partial pneumothorax from 2003-04. After obtaining any necessary authorization from the Veteran, obtain all identified, to include VA treatment records dated since April 2014. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination that conforms to the guidelines for conducting Gulf War examinations. The claims file should be made available for review. a. The examiner should note and detail all assertions as to problems associated with the Veteran's complaints of respiratory complaints, left upper/lower extremity pain, and/or fatigue, current and documented. The examiner should conduct a comprehensive examination, and provide details about the onset, frequency, duration, and severity of the asserted symptoms and state what precipitates and what relieves them. b. The examiner should list all diagnosed disability(ies) associated with the Veteran's respiratory complaints, left upper/lower extremity pain, and/or fatigue, if any. If all complaints are associated with a diagnosed condition(s), additional specialist examinations for diagnostic purposes are not needed and the examiner should opine whether it is at least as likely as not that the diagnosed condition was incurred or is related to the Veteran's active military service. c. If any symptoms associated with the Veteran's respiratory complaints, left upper/lower extremity pain, and/or fatigue are not determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings, and should be ordered by the primary examiner. d. If any specialist examination(s) is/are warranted, the primary examiner should provide the specialist with all examination reports and test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request that the specialist determine which of these, if any, can be attributed in this Veteran to a known clinical diagnosis and which, if any, cannot be attributed in this Veteran to a known clinical diagnosis. The examiner should specifically address the May 2000 VA examination report showing a diagnosis of "laceration of the left hand, residuals with sensory neuropathy of the left little finger;" a May 2000 VA treatment record noting complaints of insomnia and frequent fatigue; and the Veteran's October 2009 notice of disagreement wherein he indicated that he had been diagnosed with "joint pain" in 2000-01 as well as partial pneumothorax from 2003-04 A rationale is requested for any opinion given. 3. Readjudicate the appeal. 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. §§ 5109B, 7112 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).