Citation Nr: 20056750 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 07-28 180 DATE: August 27, 2020 ORDER Entitlement to service connection for an undiagnosed illness (manifested by symptoms of fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) due to exposure to environmental hazards in Southwest Asia is granted. FINDING OF FACT The Veteran’s undiagnosed illness (manifested by symptoms of fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) is presumed to have been caused by his service in Southwest Asia. CONCLUSION OF LAW The criteria for entitlement to service connection for an undiagnosed illness (manifested by symptoms of fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) have been met. 38 U.S.C. §§ 1110, 1113, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from October 1970 to January 1993, including in Southwest Asia from December 1990 to May 1991. The Board concedes that he is a Persian Gulf Veteran pursuant to 38 C.F.R. § 3.317(e). In an October 2014 Decision, the Board reopened and remanded the issue herein. In a March 2016 Decision, the Board remanded the issue herein. In a December 2017 Decision, the Board denied the issue herein. In an August 2018 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the December 2017 Board Decision regarding the issue herein and remanded it for further development and adjudication. In a February 2019 Decision, the Board remanded the issue herein. 1. Entitlement to Service Connection for an Undiagnosed Illness (Manifested by Symptoms of Fatigue, Headache, Muscle Pain, Joint Pain, Sleep Disturbances, and Feelings of Warmth) Due to Exposure to Environmental Hazards in Southwest Asia Presumptive service connection may be granted for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, 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 (2004). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from: (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2)-(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to: fatigue; skin issues; headache; muscle and/or joint pain; neurological and/or neuropsychological issues; respiratory issues; sleep disturbances; gastrointestinal issues; cardiovascular issues; and abnormal weight loss. 38 C.F.R. § 3.317(b). If an examiner has determined the Veteran’s disability pattern to be either a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under 38 C.F.R. § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis. Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25. However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, No. 16-994 (November 29, 2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran generally contends that, since 1993, he has experienced constant symptoms of fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth; he further contends that these symptoms are due to his service in Southwest Asia. See June 2019 VA opinion. Notably, in the August 2018 JMPR, the Court found prior etiological opinions to be inadequate; accordingly, in the February 2019 Decision, the Board remanded to obtain a new etiological opinion. As such, the Board has focused its attention on the June 2019 VA opinion, as it is currently the only adequate opinion of record. Service treatment records, the Veteran’s lay statements, and the June 2019 VA examiner confirm that these symptoms (fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) did not pre-exist the Veteran’s service. During the June 2019 VA examination, the Veteran described: constant fatigue since 1993; decreased energy; waking up tired in the morning and remaining tired throughout the day; body aches and leg cramps; difficulty staying asleep; headaches that occur every other day; extreme fatigue with activity; no longer exercising because he takes a lot longer to recover; joint aches and pains that are not associated with injury or physical activity (because he does not typically exert himself); intermittent sore throat; feeling warmth in his body constantly; and functioning at 60 percent of his activity level as compared to before. The examiner found that the Veteran did not have chronic fatigue syndrome, but, rather, that his symptoms (fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) were related to the disability pattern of an undiagnosed illness because they were not medically explained by the Veteran’s service-connected fibromyalgia, allergic rhinitis, irritable bowel syndrome, PTSD, hearing loss, labile hypertension, or any other condition documented in the available medical records. Ultimately, the examiner concluded that the Veteran’s unexplained symptoms of an undiagnosed illness are at least as likely as not related to military service and are presumed to be caused by service in Southwest Asia. Notably, in the June 2020 Supplemental Statement of the Case (SSOC), the agency of original jurisdiction (AOJ) continued to deny the claim, despite the June 2019 VA examiner’s favorable opinion, because of lack of a nexus between the claimed illness and service; however, as stated above, in claims based on qualifying chronic disability, 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, supra. Thus, after a review of all the evidence of record, the Board finds that the Veteran’s undiagnosed illness (manifested by symptoms of fatigue, headache, muscle pain, joint pain, sleep disturbances, and feelings of warmth) is presumed to have been caused by his service in Southwest Asia. As stated by the June 2019 VA examiner, and as corroborated by the other evidence of record, these cluster of symptoms since 1993 are not medically explained by the Veteran’s service-connected fibromyalgia, allergic rhinitis, irritable bowel syndrome, PTSD, hearing loss, labile hypertension, or any other condition documented in the available medical records. Because the Veteran was present in Southwest Asia during the Persian Gulf War, he exhibited symptoms of an undiagnosed illness during and since service, and the etiology of these symptoms has not been explained by competent medical evidence, the Board finds that presumptive service connection is warranted. 38 C.F.R. § 3.317. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.