Citation Nr: 20072004 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 15-13 190 DATE: November 6, 2020 REMANDED Entitlement to service connection for fibromyalgia, including as due to undiagnosed illness is remanded. Entitlement to service connection for chronic fatigue syndrome, including as due to undiagnosed illness is remanded. Entitlement to service connection for a respiratory disability, including emphysema and chronic obstructive pulmonary disorder (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to April 1983 and from June 1984 to July 1992. He had service in Southwest Asia from September 4, 1990, to June 16, 1991, and from January 17,1991, to April 4, 1991. He was awarded the Combat Action Ribbon. See 38 U.S.C. § 1154(b). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision. In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claims for service connection were remanded by the Board in October 2019 for further development. For the reasons discussed below, the Board finds that there has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Unfortunately, for the reasons discussed below, the Veteran’s claims for service connection require yet another remand. 1. Entitlement to service connection for fibromyalgia, including as due to undiagnosed illness is remanded. 2. Entitlement to service connection for chronic fatigue syndrome, including as due to undiagnosed illness is remanded. 3. Entitlement to service connection for a respiratory disability, including emphysema and chronic obstructive pulmonary disorder is remanded. The Veteran states that he has current disabilities related to exposure to environmental hazards while serving in Southwest Asia during the Persian Gulf War. See June 2013 VA Form 21-526, Veteran’s Application for Compensation and/or Pension. As noted above, his service personnel records show that he served in Southwest Asia during the Persian Gulf War from September 4, 1990, to June 16, 1991, and from January 17, 1991, to April 4, 1991. Therefore, the Board finds that he is a Persian Gulf War Veteran and all relevant laws and regulations are applicable to his claims for service connection. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id. Objective indications of chronic disability include 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). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness means 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The Veteran asserts that he has fibromyalgia and chronic fatigue syndrome manifested by symptoms of fatigue, poor sleep/feeling tired, not feeling refreshed after sleeping, lack of motivation, left arm muscle pain and numbness, right arm pain, low back pain, bilateral knee pain, right shoulder pain, bilateral ankle pain, chest pain, shortness of breath, dyspnea on exertion, and headaches. See VA examination report dated June 19, 2014; Hearing transcript, dated January 4, 2019; Hearing transcript, dated January 20, 2015. On VA examination in June 2014, the examiner determined that the Veteran did not meet the published revised CDC criteria for the diagnosis of chronic fatigue syndrome or the published criteria of the American College of Rheumatology for the diagnosis of fibromyalgia. However, the examiner did not directly address whether the Veteran’s symptoms were manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness. Instead, the examiner focused primarily on the issue of whether the Veteran had fibromyalgia or chronic fatigue syndrome. On remand, new medical opinions are warranted that consider the totality of the Veteran’s symptoms and their history, and directly addresses whether they are manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness. Regarding the Veteran’s respiratory disability, a new medical opinion is warranted. The Veteran was provided with a June 2014 medical opinion and September 2014 medical opinion that found his lung disabilities are not related to his active service. Since those medical opinions were provided, new evidence concerning the Veteran’s respiratory disability has been added to his claims folder. Specifically, a September 2017 CT scan of the Veteran’s chest revealed nodules in his right and left lung lobes. Therefore, a new medical opinion is warranted to address the nature and etiology of the Veteran’s respiratory disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. After the above development is completed, obtain an addendum VA Gulf War medical opinion from an appropriate examiner. The examiner must review the claims file. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s symptoms of fatigue, poor sleep/feeling tired, not feeling refreshed after sleeping, lack of motivation, left arm muscle pain and numbness, right arm pain, low back pain, bilateral knee pain, right shoulder pain, bilateral ankle pain, chest pain, shortness of breath, dyspnea on exertion, and headaches constitute an undiagnosed illness(es) or a medically unexplained chronic multisymptom illness(es), including chronic fatigue syndrome and/or fibromyalgia. Please note: “A medically unexplained chronic multisymptom illness” means an 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. In rendering the opinion, the examiner should consider the following: • A March 1991 service treatment record states that the Veteran was exposed to hazardous fluorocarbons during operations in Al-Wafra and Al-Burquan oil fields in Kuwait. • The Veteran’s service treatment records contain notations for multiple musculoskeletal complaints including right shoulder pain, right knee pain, lower back pain, and bilateral ankle pain. See STRs dated 3/27/1985 (back pain); 8/26/1985 (lower back pain); 11/24/1987 (steady anterior ankle pain bilaterally); 2/15/1989 (thoracic paraspinal muscle strain vs. spasm); 11/22/1989 (right arm tingles, right arm and shoulder pain); 2/21/1990 (painful swelling of right knee and ankle joints); 3/30/1990 (low back sprain); 3/10/1992 (Report of Medical History, complaints of cramps in legs, recurrent back pain); and 5/28/1992 (right knee pain); and • The Veteran’s service treatment records document complaints of headaches, chest pain, and dizziness. See STRs dated 6/13/1986 (mid-sternal chest pain and dizziness, costochondritis); 8/25/1986 (headaches); 1/27/92 (headache, chest pain; adjustment disorder with anxiety and somatic symptoms); 3/10/1992 (Report of Medical History, complaints of frequent or severe headaches, pain or pressure in chest). (b) If ANY of the Veteran’s symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness, the examiner should explain whether it/they are attributable to a known clinical diagnosis(es). The complete rationale for all opinions expressed must be set forth by the examiner. 3. Obtain an addendum medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran’s respiratory disability. The examiner must review the claims file. The examiner must opine whether the Veteran’s respiratory disability, including a complex nodule in the right lung lobe and solid nodule in the left lung lobe, is at least as likely as not (50 percent probability or greater) related to service, including environmental exposures while serving in Southwest Asia. See September 2017 CT scan of the Veteran’s chest. In rendering the opinion, the examiner should consider the following: • The Veteran’s service treatment records contain notations of bronchitis in February 1991 and February 1992. • A March 1991 service treatment record states that the Veteran was exposed to hazardous fluorocarbons during operations in Al-Wafra and Al-Burquan oil fields in Kuwait. The complete rationale for all opinions expressed must be set forth by the examiner. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.