Citation Nr: 20021792 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-33 921 DATE: March 27, 2020 ORDER Entitlement to service connection for irritable bowel syndrome (IBS), to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is granted. Entitlement to service connection for chronic fatigue syndrome, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is granted. REMANDED Entitlement to service connection for a skin disorder, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a headache disorder, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of IBS, which is presumptively due to his Persian Gulf War service. 2. The weight of the probative evidence of record shows that the Veteran has a diagnosis of chronic fatigue syndrome, which is presumptively due to his Persian Gulf War service. CONCLUSIONS OF LAW 1. IBS was incurred in active duty service. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. Chronic fatigue syndrome was incurred in active duty service. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1990 to September 1993, including service in Southwest Asia from June 1991 to September 1991. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection The Veteran contends that he has IBS and chronic fatigue syndrome due to his service in the Persian Gulf. Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10% or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (2016); 76 Fed. Reg. 81834 -81836 (Dec. 29, 2011). Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(3-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). The term “Persian Gulf Veteran” means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). The Veteran’s service personnel records confirm that he had active duty service in Saudi Arabia from June 1991 to September 1991. Accordingly, he is a Persian Gulf veteran. 1. Entitlement to service connection for irritable bowel syndrome (IBS) and entitlement to service connection for chronic fatigue syndrome The Veteran’s service treatment records are negative for any complaints of or treatment for gastrointestinal symptoms and fatigue. However, a September 2013 VA examination report reflects diagnoses of both chronic fatigue syndrome and irritable bowel syndrome. In a March 2017 VA opinion, the VA examiner opined that the Veteran did not have a current diagnosis of chronic fatigue syndrome and that his IBS was not related to active duty service. Having carefully reviewed the record, the Board concludes that service connection for chronic fatigue syndrome and IBS is warranted. As noted above, the September 2013 VA examination confirms a diagnosis of chronic fatigue syndrome and IBS. IBS and chronic fatigue syndrome are medically unexplained chronic multisymptom illnesses pursuant to 38 C.F.R. § 3.317(a)(2)(i)(B) for which service connection on a presumptive basis may be granted. Although the March 2017 VA opinion indicated that the Veteran did not have a diagnosis of chronic fatigue syndrome, the opinion was not based upon an interview or examination of the Veteran. In contrast, the September 2013 VA examination which diagnosed chronic fatigue syndrome based upon a physical examination and interview of the Veteran. Accordingly, the Board affords more probative weight to the September 2013 VA examiner’s findings. Thus, the weight of the probative evidence of record shows a diagnosis of chronic fatigue syndrome. While the March 2017 VA examiner opined that the Veteran’s IBS was not related to active duty service, the examiner’s opinion is not dispositive in this case, as IBS is a presumptive condition under 38 C.F.R. § 3.317 so long as it is manifested to a compensable degree prior to December 31, 2021. The examiner’s opinion is insufficient in this case to rebut that presumption. In sum, the record supports a finding that the Veteran has IBS and chronic fatigue syndrome which manifested after his time in the Persian Gulf. There is no probative evidence in the claims file suggesting that these disorders can be attributed to any known clinical diagnosis. Accordingly, the service connection for IBS and chronic fatigue syndrome on a presumptive basis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder and entitlement to service connection for a headache disorder are remanded. In a March 2017 VA opinion, the VA examiner opined that it was less likely than not that the Veteran’s skin disorder and headache disorder were incurred in or caused by active duty service. The examiner explained that there was insufficient evidence of “continuity of symptoms” and the separation physical and accompanying report of medical history were silent for reports of a skin disorder and headache disorder. However, the Veteran contends that his skin symptoms and headaches are a qualifying chronic disability associated with his service in the Persian Gulf War. The March 2017 VA examiner did not provide an opinion as to whether the Veteran’s symptoms may be due to an undiagnosed illness or medically unexplained chronic multisymptom illness. Accordingly, a new VA examination is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. During his January 2020 hearing before the Board, the Veteran testified that he was unable to be completely forthcoming about the severity of his psychiatric symptoms with the October 2013 VA examiner who conducted his PTSD examination because the VA psychologist also worked for the county in which the Veteran works as a probation officer and he was concerned that full candor regarding his symptoms may adversely affect his employment. Because the October 2013 VA examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD based upon a lack of symptoms, the Board concludes that the Veteran should be provided with a new VA examination with a different examiner who does not also work for the county to provide an accurate assessment of the Veteran’s psychiatric symptoms. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to assess the etiology of the Veteran’s skin symptoms and headaches. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s testimony, the examiner should address the following: (a.) Can the Veteran’s skin symptoms and/or headaches be attributed to a known clinical diagnosis (other than a symptom-based diagnosis)? (b.) For any diagnosed disability, the examiner is asked to opine whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s disability was caused by or incurred during service, to include whether it first manifested during service. (c.) Are the Veteran’s skin symptoms and/or headaches a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology? A complete rationale for all opinions must be provided. The examiner is asked to review the Veteran’s lay statements of record with regard to the onset and continuity of his headache and skin symptoms, and is advised that the Veteran is competent to report observable symptomatology. A complete rationale for all opinions must be provided. 2. Provide the Veteran with a new VA examination with a different VA psychiatrist or psychologist from the examiner who conducted the October 2013 VA psychiatric examination who does not work for Maricopa County, if possible. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be completed. Following review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a.) Does the Veteran’s symptomatology meet the diagnostic criteria for PTSD now or at any time during the appeal period? (b.) If PTSD is not diagnosed, does the Veteran meet the diagnostic criteria for any other psychiatric disability now or at any time during the appeal period? If so, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disability was incurred in or caused by active duty service? (c.) If PTSD is diagnosed at any time during the appeal period, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis. The examiner is asked to provide a complete explanation and rationale for the opinion(s) provided. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.