Citation Nr: 21004296 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-57 643 DATE: January 26, 2021 REMANDED Entitlement to service connection for an undiagnosed illness, to include a disorder to account for widespread joint pain, to include as due to Gulf War environmental exposure, is remanded. Entitlement to service connection for an undiagnosed illness, to include a disorder to account for widespread muscle weakness, to include as due to Gulf War environmental exposure, is remanded. Entitlement to service connection for chronic fatigue, to include as due to Gulf War environmental exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1979 to April 1983 and from January 1984 to January 1995. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned. In March 2020, the Board remanded these matters for additional development. This matter has been advanced on the docket pursuant to 38C.F.R. §20.902. 1. Entitlement to service connection for an undiagnosed illness, to include a disorder to account for widespread joint pain, to include as due to Gulf War environmental exposure, is remanded. 2. Entitlement to service connection for an undiagnosed illness, to include a disorder to account for widespread muscle weakness, to include as due to Gulf War environmental exposure, is remanded. 3. Entitlement to service connection for chronic fatigue, to include as due to Gulf War environmental exposure, is remanded. In March 2020, the Board remanded these matters with explicit instructions for the RO to make a determination as to whether the Veteran is a Persian Gulf Veteran who served in the Southwest Asia Theater of Operations as defined in 38 C.F.R. § 3.317 (e)(1) – (2). The Board ordered the RO to memorialize these findings, including the steps taken in making their determination, in a memorandum uploaded to the claims file prior to referring these matters for medical review. This was not accomplished on remand. Thus, remand is warranted to ensure substantial compliance with the Board’s March 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As no determination has been made as to whether the Veteran does or does not qualify as a Persian Gulf Veteran, the September 2020 VA medical opinions regarding a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology and a diagnosable chronic multi-symptom illness with a partially explained etiology, are of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that medical opinions based on inaccurate factual premise have no probative value). Regarding the Veteran’s reports of widespread joint pain, the examiner indicated the Veteran was experiencing pain at every tested trigger point bilaterally, to include the bilateral upper extremities, the cervical spine, the back of the skull, the trapezius muscle, etc., and concluded without a rationale that no diagnosis of fibromyalgia was warranted as the Veteran’s symptoms were subjective in nature. See September 2020 VA examination report. The Board notes that in the March 2020 Board remand, the examiner was instructed to comment on whether any of the Veteran’s symptoms, if not attributed to a diagnosis, were resulting in any functional impairment. The September 2020 VA examiner did not address functional impairment and the examination is accordingly inadequate in this regard. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated by 38 U.S.C. § 1110, even in the absence of a presently diagnosed condition). Remarkably, the September 2020 VA examiner also attributed the Veteran’s pain in his low cervical region, second rib, occiput, trapezius muscle, supraspinatus muscle, lateral epicondyle, gluteal area, greater trochanter area, and bilateral knees to his service-connected thoracolumbar spine with left lower extremity radiculopathy, hypertension, and major depressive disorder. As the examiner offered no medical rationale as to how the Veteran’s service-connected disabilities were causing widespread musculoskeletal pain, stiffness, muscle weakness, and fatigue, the September 2020 VA examination is also inadequate in this regard. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, new VA examinations and opinions are required on remand. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Inform the Veteran that qualifying service in Southwest Asia is defined as service in 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. Request the Veteran to clarify if he is asserting service in any of these specific locations, and if so, when and under what circumstances he was in these limited geographic regions. 4. Complete any necessary development to determine if the Veteran’s service can be confirmed, to include referral to the appropriate research entity. Then complete a memorandum delineating all steps taken to assist the Veteran and then affirming or denying that the Veteran served in the SWA theater of operations. Upload the memorandum to the claims file. 5. Then, schedule the Veteran for appropriate VA examinations with an examiner other than the September 2020 VA examiner (including a Gulf War medical examination ONLY if SWA service is verified) to determine the nature and etiology of his chronic fatigue, muscle weakness, and joint pain. The entire claims file should be made available to and reviewed by the examiner, including a copy of this remand. After reviewing the record, the examiner should address the following: (a.) Please state whether the Veteran’s claimed chronic fatigue, muscle weakness, and widespread joint pain symptoms are attributable to a known clinical diagnosis, and if so, identify the same. If no diagnosis is warranted, but functional impairment is identified, please note the same. (b.) Please state whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability or functional impairment identified from section (a.) is a continuation of or caused by the Veteran’s reports of generalized muscle aches or weakness, low grade fever, psychological symptoms, joint pain, pharyngitis, muscle tightness, and reports of being tired all of the time while on active duty. (c.) If, and only if, service in SWA is verified, please state whether the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology ((c)(2) above), or a disease with a clear and specific etiology and diagnosis ((c)(3) above), then please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability pattern is related to presumed environmental exposures during the Veteran’s service in Southwest Asia. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limited of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.