Citation Nr: 21000445 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-03 272 DATE: January 5, 2021 REMANDED Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for a neurological condition of the head and eyes is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from May 1978 to August 1978 and on active duty from March 1981 to October 1982 with additional service in the Air National Guard and Air Force Reserve. The Veteran contends that she is entitled to service connection for hemorrhoids, CFS, and a neurological disorder of the head and eyes. The issues of service connection for CFS and service connection for a neurological condition of the head and eyes will be discussed in the remand section. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board, as relevant, denied the Veteran’s claims of service connection for hemorrhoids, CFS, and a neurological disorder of the head and eyes. The Veteran appealed the December 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted the Veteran’s and the Secretary of VA’s (the Parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s December 2018 decision as to such matters. A July 2020 Board decision remanded the issues at hand in order to obtain the Veteran’s records from the Social Security Administration (SSA). The Veteran’s SSA records were added to the file in August 2020. The case now returns for the Board for further appellate review. Discussion of March and June 2010 Statements Per JMPR Order Initially, as further background for this case, the Veteran first applied for service connection for hemorrhoids, CFS, and a neurological condition of the head and eyes on April 25, 2008. Those claims were denied in a June 18, 2009 rating decision, of which the Veteran was notified on June 22, 2009. In a March 17, 2010 statement, the Veteran stated that she disagreed with the June 2009 decision. However, the Veteran did not state what issues she disagreed with. The RO sent the Veteran a letter asking for clarification on March 19, 2010. On June 21, 2010, the Veteran submitted a statement in which she clarified that she desired reconsideration by the RO of the June 2009 rating decision, and she argued that she had several periods of service. With this statement, the Veteran submitted copies of several military personnel records from between 1982 and 1998 to show that she had many periods of active duty. This June 21, 2010 statement and the accompanying evidence were submitted within a year of the June 2009 rating decision and notification letter. See 38 C.F.R. § 3.156(b). The RO accepted the Veteran’s June 2010 statement as a request for reconsideration, and they found new and material evidence in the military personnel records such that they conducted additional development and readjudicated the Veteran’s claims in the April 2012 rating decision now at issue. In the April 2012 rating decision, the RO confirmed and continued their previous June 2009 decision denial. Notably, the RO did not reopen the claims of service connection otherwise discuss whether new and material evidence had been received since the previous June 2009 decision. The Board notes that, based on the history of the case as described above, the April 2012 decision was a reconsideration of the June 2009 rating decision and a continuation of the April 2008 claim. Therefore, the presence of new and material evidence is not currently an issue in this case. See 38 C.F.R. § 3.156(b). The Board has therefore recharacterized the issues above as claims for service connection rather than claims to reopen service connection. The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). Such assistance includes providing the claimant with a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Hemorrhoids The Veteran is currently service connected for cervical and lumbar spine disabilities. In a June 2020 letter, Dr. RW, the Veteran’s private physician, indicated that he reviewed the STRs and post-service treatment records. He noted that the Veteran reported that she first experienced hemorrhoids during active service. She initially self-treated the condition, and she sought civilian medical help in 1986 when they became a problem. She required surgery to repair an anal fissure in 2001, and she has constipation and occasional problems with hemorrhoids to this day. Dr. RW explained that data show a clear and significant association between CFS and symptoms of autonomic dysfunction, and research has shown that constipation dominant irritable bowel syndrome (IBS) was associated with an autonomic nervous system (ANS) dysfunction, which disturbs visceral sensations. Dr. RW found that it is as likely as not that the Veteran’s hemorrhoids are a result of constipation from CFS and symptoms of ANS that stem from her cervical degenerative joint disease (DJD) and can be traced back to her military service. A review of the claims file demonstrates that the Veteran has yet to be afforded a VA examination of her hemorrhoids. Accordingly, the low threshold for obtaining a VA examination has been met, and a remand for such to be accomplished is necessary. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). CFS The Veteran contends that she is entitled to service connection for chronic fatigue syndrome (CFS). In a June 2008 statement, the Veteran reported that she had viremia in 1981, and she was eventually diagnosed with CFS. She opined that this could be attributed to the ionizing radiation exposures from flying. She noted that the National Institute of Occupational Health (NIOH) and Center for Disease Control (CDC) have identified aircrew as one of the most highly exposed occupational groups. She stated that she received more radiation than currently regulated and monitored groups such as nuclear power plant workers and X-Ray technicians. Additionally, in the June 2008 statement, the Veteran stated that CFS also been linked to shift work with circadian rhythm disruptions, which the Veteran experienced starting from pilot training throughout her flying career. Also, in a June 2008 Radiation Risk Activity Information Sheet, the Veteran reported that she had in-flight radiation exposure during active service. In a May 2012 statement, the Veteran stated that she had known repeated exposure to military radar. For example, she walked in front of airplanes with active radar accidentally left on; she also had other in-flight elevated radiation exposures during the course of her military flying career. She stated that she does not know if she received exposure when she was made to swim in the cooling waters of the nuclear power plant for training. The Veteran has also submitted article abstracts on CFS and radiation exposure. An undated letter from Dr. SM notes signs and symptoms of post-traumatic neurological disturbance, including chronic fatigue symptoms. In another undated letter, Dr. GS, noted that the Veteran reported chronic fatigue of a long-standing nature. A January 24, 2001 private treatment record noted that the Veteran complained of fatigue and swelling. A January 31, 2001 treatment note states that the Veteran had a major problem with fatigue and some abdominal discomfort. The Veteran’s lab work showed elevated Epstein-Bar, VC IGG, and nuclear IGG, and borderline early AG. The examiner stated that this would mean that the Veteran had a mono infection over six months ago. The examiner confirmed that the Veteran’s symptoms date from over one year ago. The examiner gave an assessment of probable chronic fatigue syndrome. In a February 2006 private treatment note, Dr. SR gave an impression of chronic fatigue with unclear etiology. In an October 2010 treatment note, the Veteran complained of fatigue, and the examiner found symptoms of malaise, fatigue, and excessive daytime somnolence. In a July 2011 treatment note, the examiner noted that the Veteran had fatigue and CFS by history. In a March 2013 “Whole Person Impairment” evaluation, the Veteran stated that she began having symptoms of generalized weakness associated with diagnoses of viremia and viral syndromes in 1990, and she had an episode greater than six months generalized severe fatigue. She noted that she had a definitive diagnosis for CFS in 2001. In a June 2020 letter, Dr. RW, indicated that he reviewed the STRs and post-service treatment records, and he noted a diagnosis of HSV1 (herpes simplex virus, type 1) and multiple viremia diagnoses during the Veteran’s active service. Dr. RW also noted that the Veteran reported that these conditions continued beyond active service, and diagnosis for CFS was done by civilian doctors whose records are no longer available, apart from a diagnosis by Dr. C in January 2001. The Veteran experienced increasingly debilitating bouts of fatigue, and Dr. C ran blood tests which revealed previous Epstein-Barr Virus (EBV) infection leading him to a conclusion of CFS related to EBV. Dr. RW explained that noted researchers found that all herpesviruses (including HSV1 and EBV) can establish a lifelong persistent infection termed latency. Thus, Dr. RW found that the evidence in the Veteran’s STRs pointed to a likely nexus for the Veteran’s CFS. In the Veteran’s service treatment records (STRs), in a June 1978 treatment note, the examiner gave an assessment of HSV1. Treatment notes from November 1981 and January 1982 show diagnoses of viremia. However, the record is unclear as to what criteria has been used to diagnose the Veteran with CFS or whether the Veteran has a formal diagnosis CFS for purposes of VA service connection. The Board also notes that the Veteran has not yet had a VA examination for CFS. Additionally, the claims file also does not appear to show that the Veteran’s asserted connection between circadian rhythm disruptions and her claimed CFS has been investigated, and the evidence of record does not currently include a medical opinion on the matter. Therefore, based on the above, the Board finds that remand is necessary in order to afford the Veteran a VA examination concerning whether the Veteran has formally diagnosable CFS for purposes of VA service connection and whether the Veteran’s claimed CFS is causally related to her active service, including but not limited to any in-service diagnoses of HSV1, EBV, and/or viremia; any in-service exposure to radiation; and/or any in-service circadian rhythm disruption. The examiner should also provide an opinion concerning whether the Veteran’s CFS is caused by, aggravated by, or otherwise the result of the Veteran’s other medical conditions, including but not limited to those for which the Veteran is currently service connected. See Id.   Neurological Condition of the Head and Eyes The Veteran contends that she is entitled to service connection for a neurological condition of the head and eyes. In a June 2008 statement, the Veteran discussed her theory that her chronic fatigue syndrome (CFS) was linked to shift work with circadian rhythm disruptions that she experienced starting from pilot training and throughout her flying career. She then stated that neurological issues, including migraines and visual issues, were noted as well. In a May 2012 statement, the Veteran noted that she had several mild head injuries while performing duties in service, but none of them seemed severe enough to report because she was never knocked out cold and none of the injuries required stitches. She opined that the repeated head injuries, even if mild, can eventually result in problems such as her claimed neurological condition of the head and eyes. She admitted that she did know if this can be taken into consideration. The Veteran has also highlighted an October 1983 treatment note in which she was treated for a contusion of the left orbit on the trunk lid. The examiner found a very shallow transverse 1cm laceration below the left eye with moderate periorbital hematoma. In an undated letter from a private physician, Dr. GS, the Veteran reported balance and vision disturbances, skull sensitivity, low back pain, and migraine headaches that had persisted since an automobile accident in 2001. In a June 2001 Electrophysiology Lab Report, the examiner found abnormal electrooculography (EOG) and suspicious electroretinography (ERG) that raised concerns about retinal degeneration. The examiner opined that perhaps the visual complaints are photopsia, which can occur early in rod or cone degeneration. In an August 2003 treatment note, the Veteran reported that she had experienced numerous visual symptoms, such as seeing afterimages (palinopsia) and outlines of people and objects. The Veteran reported that, when reading, she fatigued rapidly, and she experienced the print shifting or jumping, which causes her to lose her place. She also experienced eye strain, occasional headaches, and difficulty with spatial orientation. The examiner also noted that the Veteran had a latent divergence excess (tendency for the eyes to deviate outward), which produced diplopia; and she had eccentric fixation interfering with her ability to stabilize her accommodation. The examiner also found a visual midline shift syndrome that was affecting her spatial orientation. In a January 2004 treatment note, the examiner stated that the Veteran was being treated for post-trauma vision syndrome and visual midline shift syndrome. She had been prescribed prism glasses to treat her neurological condition. In a December 2004 treatment note, the Veteran reported that she continued to have a ghost image when looking at objects, and this seemed to vary in intensity. She also had some double vision, spatial disorientation, difficulty with depth perception, and difficulty with visual acuity at distance and near. The examiner stated that the condition of post trauma vision syndrome persists. The examiner also stated that the post trauma vision syndrome and visual midline shift syndrome affected her spatial orientation and will cause her to fatigue rapidly when performing near vision tasks. In a June 2005 letter, the Veteran’s private physician, Dr. WP, noted that the Veteran had been diagnosed with post-trauma vision syndrome and visual midline shift syndrome. In a February 2006 private treatment note, the Veteran complained of vision problems, dizziness, headaches, neck pain, and low back pain. The examiner noted a history of dizziness associated with blurring of vision, the etiology of which was unclear. In a December 2007 private treatment note, the examiner diagnosed her with right eye post-trauma visual syndrome by history, right eye cataracts, left eye myopic astigmatism, and left eye presbyopia. In a January 2008 private treatment note, the examiner diagnosed the Veteran with post-trauma visual syndrome and visual midline shift syndrome. Subjective symptoms included diplopia and difficulty with balance. In an October 2009 treatment note, the examiner noted that there was a strong shift in the concept of visual midline anteriorly and to the right. In a March 2013 “Whole Person Impairment” evaluation, the examiner noted that the Veteran had intermittent blurred vision and intermittent double vision, and vision loss or greying out. The Veteran stated that she had difficulty walking, dizziness, and poor coordination. In a July 2019 treatment note, the Veteran complained of headaches, balance problems, dizziness, and visual problems. The Veteran has not yet been afforded a VA examination related to her claimed neurological condition of the head and eyes. Additionally, the claims file also does not appear to show that the Veteran’s asserted connection between circadian rhythm disruptions and her claimed neurological condition of the head and eyes has been investigated, and the evidence of record does not currently include a medical opinion on the matter. The Board notes that the Veteran is currently service connected for migraines and neurocardio syncope. Therefore, based on the above, the Board finds that remand is necessary in order to afford the Veteran a VA examination concerning whether the Veteran’s claimed neurological condition of the head and eyes is causally related to her active service, to include any in-service circadian rhythm disruptions and/or any in-service head trauma. The examiner should also provide an opinion concerning whether the Veteran’s neurological condition of the head and eyes is caused by, aggravated by, or otherwise the result of the Veteran’s other medical conditions, including but not limited to those for which the Veteran is currently service connected. Accordingly, the matters are REMANDED for the following actions:   1. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the nature and etiology of her claimed hemorrhoids. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner should opinion whether it is at least as likely as not (50 percent or greater probability) the Veteran’s hemorrhoids and residuals of an anal fissure surgery were incurred in service or otherwise the result of military service. In so discussing, the examiner should specifically address the Veteran lay statements that her hemorrhoids began during military service and that she self-treated her condition until seeking treatment in 1986, although those treatment records are not available, which eventually culminated in her anal fissure surgery in 2001. If service connection cannot be found as to this direct basis, the examiner should additionally opine whether it is at least as likely as not that the Veteran’s hemorrhoids were (a) caused by; or (b) are aggravated by (i.e., worsened by) her service-connected cervical and lumbar spine disabilities. In so discussing, the examiner should specifically address Dr. RW’s June 2020 opinion. The examiner should additionally address any other relevant evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. 2. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the nature, status, and etiology of her claimed chronic fatigue syndrome (CFS). The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran asserting that her CFS may be related to any in-service diagnoses of HSV1, EBV, and/or viremia; any in-service exposure to radiation; and/or any in-service circadian rhythm disruption The examiner should consider any other pertinent evidence of record, as appropriate. The examiner must provide the following: a) Identify any diagnosable chronic fatigue syndrome (CFS) suffered by the Veteran during the period on appeal. b) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any CFS suffered by the Veteran was incurred in, caused by, aggravated by, or otherwise related to her active service, including but not limited to any in-service diagnoses of HSV1, EBV, and/or viremia; any in-service exposure to radiation; and/or any in-service circadian rhythm disruption. c) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any CFS suffered by the Veteran was caused by, aggravated by, or otherwise a result of the Veteran’s other medical conditions, including but not limited to those conditions for which she is currently service connected. Any related medical conditions should be clearly identified. The examiner should additionally address any other relevant evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. 3. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the nature, status, and etiology of her claimed neurological condition of the head and eyes. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran asserting that her neurological condition of the head and eyes may be related to any in-service circadian rhythm disruptions and/or in-service head trauma. The examiner should consider any other pertinent evidence of record, as appropriate. The examiner must provide the following: a) Identify any diagnosable neurological condition of the head and eyes suffered by the Veteran during the period on appeal. b) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any neurological condition of the head and eyes suffered by the Veteran was incurred in, caused by, aggravated by, or otherwise related to her active service, including but not limited to any in-service circadian rhythm disruptions and/or any in-service head trauma. The examiner should consider and discuss the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran asserting that her neurological condition of the head and eyes may be related to any in-service circadian rhythm disruptions and/or in-service head trauma. The Veteran should also consider and discuss the October 1983 treatment note in which she was treated for a contusion of the left orbit on the trunk lid, and the examiner found a very shallow transverse 1cm laceration below the left eye with moderate periorbital hematoma. c) Provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any neurological condition of the head and eyes suffered by the Veteran was caused by, aggravated by, or otherwise a result of the Veteran’s other medical conditions, including but not limited to those conditions for which she is currently service connected. Any related medical conditions should be clearly identified. The examiner should additionally address any other relevant evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.