Citation Nr: 21002360 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-43 943 DATE: January 13, 2021 REMANDED Entitlement to service connection for fibromyalgia to include as due to an undiagnosed illness is remanded. Entitlement to service connection for chronic fatigue syndrome to include as due to an undiagnosed illness is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from April 1989 to April 1992 to include service in Southwest Asia. This matter is on appeal from an August 2014 rating decision. The Veteran was afforded a February 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in May 2016 for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). In a July 2019 Board decision, the Board denied entitlement to service connection for fibromyalgia and chronic fatigue syndrome to include as due to an undiagnosed illness. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in July 2020, issued a joint motion for partial remand (JMPR) to vacate and remanded the issue back to the Board for re-adjudication. The Court found the July 2019 Board decision relied on an inadequate examination report and failed to adjudicate the Veteran’s entitlement to presumptive service connection for a medically unexplained chronic multi symptom illness (MUCMI). The Court found the October 2013 VA examination relied upon by the July2019 Board decision made several conclusory statements in the opinion; such statements included “the fatigue he has is due to [obstructive sleep apnea]…he has intermittent aches and pains as a sign of anxiety” without further clarification. The Court then found that the VA examiner failed to give adequate consideration to the Veteran’s theory of entitlement to presumptive service connection for MUCMI under 38 U.S.C. § 1117(a)(2)(B) and 38 C.F.R. § 3.317(a)(2)(i)(B) based upon the Veteran’s history of treatment and submitted lay statements that described a cluster of symptoms associated with fibromyalgia, chronic fatigue syndrome and irritable bowel syndrome at the same time the examiner considered these issues for service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013) (remanding for a medical opinion to consider aggravation in addition to the prior consideration of direct causation). The Court noted the July 2019 Board decision “recites the relevant legal standard” to establish service connection for a “qualifying chronic disability” resulted from a medically unexplained chronic multi symptom illness such as chronic fatigue syndrome, fibromyalgia and irritable bowel syndrome defined by a cluster of signs or symptoms. However, the Court found that “despite discussion of the legal standard for MUCMI in both the Board hearing and in its decision” the Board failed to adjudicate the Veteran’s entitlement to a presumption of service connection for a MUCMI despite the Veteran’s histor of manifestation of signs and symptoms of chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. As such, the Court found that remand was warranted for a new Gulf War general medical examination to determine whether it was at least as likely as not that “ (1) the Veteran has fibromyalgia and/or chronic fatigue, both to include as due to an undiagnosed illness, and/or (2) a MUCMI”; and provide a medical opinion that provides a rationale for the findings and allowed for a fully informed decision to be made. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail” to allow for a fully-informed decision); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (remand was appropriate where the Board relied on an inadequate examination report). The Court also found the October 2013 VA examiner failed to adequately address pertinent medical records and lay statements regarding the Veteran’s symptoms in the claims file at the time of the examination; the Court noted that this “is enough and of itself to render the examination inadequate.” See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (“The examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion.”) The Court there instructed that in forming this opinion in the new examination, the examiner should address the pertinent evidence of record to include a May 2007 referral to occupational therapy for right shoulder pain; a July 2015 primary care note describing continued chronic back pain; a January VA medical center (VAMC) note describing right elbow tenderness; and October 2013 statement from the Veteran’s spouse asserting chronic fatigue; a September 2013 Veteran statement asserting chronic fatigue; an April 1992 claim filing for various disabilities to include right shoulder pain; and an October 1992 VA rating decision denying entitlement to a right shoulder condition but noted the condition ”lasted for a short period during service.” Accordingly, the Board finds that remand is warranted to obtain a new examination. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule the Veteran for a VA examination, to include a Gulf War examination, to determine the nature and etiology of the Veteran’s claimed fibromyalgia and chronic fatigue syndrome. The examiner must review the entire claims file, to include a copy of this remand, in conjunction with the examination. Based on this review of the record, and examination if provided, the examiner should provide opinions that respond to the following: (a.) Please state whether the symptoms relating to the Veteran’s claimed fibromyalgia is/are attributable to a known clinical diagnosis. If the Veteran does not currently have, but previously had any such condition, when did that condition resolve? (b.) Please state whether the symptoms relating to the Veteran’s claimed chronic fatigue syndrome is/are attributable to a known clinical diagnosis. If the Veteran does not currently have, but previously had any such condition, when did that condition resolve? (c.) With respect to each diagnosis determined or identified for the Veteran’s claimed fibromyalgia and/or chronic fatigue syndrome, determine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disease, disability or symptoms were: 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness (MUCMI); or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis. (d.) The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered “medically unexplained.” See 38 C.F.R. § 3.317. (e.) With respect to each diagnosis for fibromyalgia and/or chronic fatigue syndrome, if the diagnosis is not considered a MUCMI, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s fibromyalgia and/or chronic fatigue syndrome began during or is etiologically related to the Veteran’s active duty service. (f.) The examiner must consider that the Veteran is presumed to have been exposed to toxins in the Southwest Asia Theater of Operations. The examiner must consider and discuss the Veteran’s lay statements regarding his duties during active service as well as his statements regarding the onset and continuity of symptoms. 3. The examiner is also asked to address the Veteran’s medical treatment record to include a May 2007 referral to occupational therapy for right shoulder pain; a July 2015 primary care note describing continued chronic back pain; a January VA medical center (VAMC) note describing right elbow tenderness; and October 2013 statement from the Veteran’s spouse asserting chronic fatigue; a September 2013 Veteran statement asserting chronic fatigue; an April 1992 claim filing for various disabilities to include right shoulder pain; and an October 1992 VA rating decision denying entitlement to a right shoulder condition but noted the condition ”lasted for a short period during service.” 4. The examiners are advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiners rejects the Veteran’s reports, the examiners must provide a reason for doing so 5. A complete rationale for these opinions must be provided. Citation to accepted medical literature and principles would be of great assistance to the Board. If the examiner is unable to provide these opinions without resorting to speculation, he or she must explain why this is so. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. 7. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.