Citation Nr: 21061649 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-54 805 DATE: October 4, 2021 REMANDED The issue of entitlement to service connection for a gastrointestinal disorder disability, to include gastroesophageal reflux disease (GERD), diarrhea, and irritable bowel syndrome (IBS), is remanded. The issue of entitlement to service connection for traumatic brain injury (TBI) with vertigo and dizziness, also claimed as post-concussive syndrome with toxic brain syndrome, is remanded. The issue of entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. The issue of entitlement to service connection for fibromyalgia, to include joint pain and/or arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1990 to August 1996, and from February 2009 to January 2010, to include service in Southwest Asia from December1990 to July 1991, and from April 2009 to January 2010 (Iraq). In July2020, the Veteran testified under oath before the undersigned Veterans Law Judge at a virtual hearing. A transcript of the hearing is of record. In July 2020, the issues on appeal were remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed. 1. The issue of entitlement to service connection for a gastrointestinal disorder disability, to include GERD, diarrhea, and IBS, is remanded. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. Specifically, the Board finds that new VA examinations and opinions are needed. First, regarding the claimed gastrointestinal disorder disability, the Board acknowledges the November 2020 VA opinion, as well as the December 2020 and April 2021 VA addendum opinions; however, the Board finds them to be inadequate for the following reasons. First, the November and December 2020 opinions state the following: "After reviewing the objective evidence, and medical literature, my medical opinion is that although the patient was diagnosed with GERD during military service, and is currently taking medications for this claimed condition, there is indication that the condition still exist." The opinions then continue on to state: "Medical literature states the use of a PPI should not be considered definitive to diagnose GERD, and because the c-file was silent for any further evaluations, this is considered an acute episode." However, the December 2020 opinion adds: "This is an [sic] diagnosable, but medically unexplained chronic illness not related to Southwest Asia." These opinions appear to be contradictory. The first sentence quoted above indicates that the condition still exists, while the second suggests the GERD was an acute episode. However, the December 2020 opinion states that the condition is "diagnosable." Confusion is compounded by the April 2021 VA addendum opinion, which states: "The veteran's diagnosis of GERD has a clear and specific diagnosis and etiology." Based on the opinions of record, it is unclear to the Board whether the Veteran has a diagnosis of GERD. Accordingly, upon remand, the Board asks that the Veteran's diagnosis be clarified. In clarifying the diagnosis, the Board notes that in the November 2020 VA examination report, it states that the Veteran "reports current symptoms" and that these "include heartburn, reflux, and nausea intermittently with food and/or drink consumption." The Board asks that such statements be considered in the new opinion. In addition, the Board does not see that the Veteran's other gastrointestinal symptoms were addressed. For example, at the July 2020 virtual hearing, the Veteran described the following upon his return from Saudi Arabia: "When I, when I came back from Saudi Arabia, I had the runs for months. I, I couldn't, I couldn't gain weight. I was losing. I lost weight. I couldn't put on weight, and I ate like a horse. And everything just came out liquid. I was on Zantac, Tagamet. I was on everything." The Board asks that the Veteran be afforded an examination and opinion that addresses these symptoms. 2. The issue of entitlement to service connection for TBI with vertigo and dizziness, also claimed as post-concussive syndrome with toxic brain syndrome, is remanded. Similarly, the Board seeks clarification of the following regarding the claimed TBI. The November 2020 VA examination report notes "[n]o complaints of impairment of memory, attention, concentration, or executive functions." However, in the December 2020 VA addendum opinion, it is noted that the Veteran "also seem [sic] to have memory issues." The Board remands to address this seeming discrepancy. Further, the Board notes that in the July 2020 remand, it specifically requested that the Veteran's reported memory issues be addressed upon remand. Again, the Board remands to address this contention. Further, the Board notes that the August 2021 VA addendum opinion states that the Veteran's "disability pattern is an undiagnosed illness as per the record review, TBI, chronic multisymptom illness such as chronic fatigue syndrome or fibromyalgia have been ruled out." However, the basis for this finding is unclear to the Board. Specifically, the Board seeks clarification as to which symptoms the examiner is using to make this determination. For example, pursuant to 38 C.F.R. § 3.317 (b): ". . . signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue; (2) Signs or symptoms involving skin; (3) Headache; (4) Muscle pain; (5) Joint pain; (6) Neurological signs or symptoms; (7) Neuropsychological signs or symptoms; (8) Signs or symptoms involving the respiratory system (upper or lower); (9) Sleep disturbances; (10) Gastrointestinal signs or symptoms; (11) Cardiovascular signs or symptoms; (12) Abnormal weight loss; (13) Menstrual disorders." Accordingly, the Board asks that an examiner explain whether it was intended that the Veteran's claimed TBI disability be classified as an undiagnosed illness pursuant to 38 C.F.R. § 3.317, and if so, the basis for this finding. In evaluating the Veteran's symptoms, the Board notes that the Veteran is already service connected for tension headaches, claimed as migraines. See Rating decision, February 2017. Finally, in reexamining the Veteran, the Board asks that an examiner address his contention that he started experiencing a memory problem in 1991. See DRO hearing, June 2018. 3. The issue of entitlement to service connection for CFS is remanded. Similarly, the Board seeks further clarification regarding the Veteran's claimed CFS. The November 2020 VA examination report did not indicate a diagnosis of CFS. However, it did note that the Veteran has been "prescribed Vitamin D supplements for abnormal deficiency." Further, in noting that no diagnosis was warranted, the examination report states: "This reports [sic] of fatigue is an acute episode related to vitamin D deficiency, that is often resolved with supplements." However, the Board points to the November 2020 VA opinion, which provided a lengthy description of Vitamin D and Vitamin D deficiency and cited an example of a 61-year-old man with "excessive daytime fatigue" who, after receiving Vitamin D supplementation, "reported complete resolution of daytime fatigue, corresponding to an increase in his vitamin D levels" at 3 and 12-month follow-ups. Accordingly, to the extent that the VA examination report and opinion suggest that the Veteran's fatigue may be tied to a Vitamin D deficiency, and not to CFS, it appears that the Veteran receives Vitamin D supplements, but his complaints of fatigue have not resolved. Indeed, the VA examination report states under "Current Symptoms" that the Veteran "reports feeling tired all the time, and reports loss of strength/weakness/fatigue with any type of physical activities." Accordingly, the Board finds that a new VA examination and opinion are needed that adequately address the Veteran's described circumstances and contentions. The Board also acknowledges the December 2020 VA addendum opinion, which states that the Veteran "does not have a diagnosis of chronic fatigue syndrome that likely incurred in or was caused during military service. This is an undiagnosed illness not related to Southwest Asia." Here again, the Board seeks clarification as to whether the opinion refers to an undiagnosed illness pursuant to 38 C.F.R. § 3.317. Further, in reexamining the Veteran, the Board asks that an examiner address his contention that he started displaying CFS symptoms in 1991. See DRO hearing, June 2018. 4. The issue of entitlement to service connection for fibromyalgia, to include joint pain and/or arthritis, is remanded. Finally, the Board asks that the Veteran be provided a new VA examination and opinion regarding his claimed fibromyalgia. Specifically, the Board seeks clarification of the following. In the November 2020 VA examination report, it is reported that the Veteran does not have a diagnosis of fibromyalgia. However, the examination report also indicates that continuous medication is required for control of fibromyalgia symptoms. Accordingly, the Board seeks clarification of the Veteran's diagnosis. Further, the November 2020 VA examination report states that the Veteran "has noted pain in his bilateral knees, cervical spine, and lumbar regions that is most likely due to degenerative arthritis. Therefore, no diagnosis was rendered." Similarly, the December 2020 VA opinion states: "Based on this evidence, and physical findings, this is considered an undiagnosed illness that is not likely related to the service in Southwest Asia." However, the opinion then states: "The pain reported is subjective, and most likely related to the noted degenerative arthritis of the lumbar spine, cervical strain, left knee strain, and injury of the right knee." First, regarding the contention that the Veteran's reported pain is "subjective," the Board notes that the Veteran is competent to describe his pain symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, it appears to the Board that the VA examination report and opinion have tied the Veteran's reported pain symptoms to a diagnosed disability, i.e., degenerative arthritis. Nevertheless, both indicate that there is no diagnosis/ an undiagnosed illness. Accordingly, a new VA examination and opinion are needed to clarify whether the Veteran's pain symptoms are an undiagnosed illness, fibromyalgia, or degenerative arthritis. In addition, the Board reminds the examiner that "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). Finally, in reexamining the Veteran, the Board asks that an examiner address his contentions that he started experiencing pain symptoms in 1991. See DRO hearing, June 2018. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for VA examinations to clarify the diagnoses of the claimed disabilities on appeal and to address the etiology of any diagnosed disabilities. In particular, the examiner is asked to examine and evaluate the Veteran for any chronic disability pattern. The examiner is asked to provide a medical statement explaining whether the Veteran's disability pattern is (a) an undiagnosed illness; (b) a diagnosable, but medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders; (c) a diagnosable chronic multisymptom illness with a partially explained etiology; or (d) a disease/disability with a clear and specific etiology and diagnosis. In making a determination, the Board reminds the examiner of the following. Pursuant to 38 C.F.R. § 3.317 (b): "... signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue; (2) Signs or symptoms involving skin; (3) Headache; (4) Muscle pain; (5) Joint pain; (6) Neurological signs or symptoms; (7) Neuropsychological signs or symptoms; (8) Signs or symptoms involving the respiratory system (upper or lower); (9) Sleep disturbances; (10) Gastrointestinal signs or symptoms; (11) Cardiovascular signs or symptoms; (12) Abnormal weight loss; (13) Menstrual disorders." The examiner should provide a medical opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability pattern or diagnosed disability is related to the Veteran's service, to include service in Southwest Asia. In particular, the Board asks that the examiner address the following: Gastrointestinal Disorder (a) Please clarify the Veteran's GERD diagnosis. The Board asks that the examiner address the VA examinations and opinions of record, as well as the November 2020 VA examination report, which states that the Veteran "reports current symptoms" and that these "include heartburn, reflux, and nausea intermittently with food and/or drink consumption." (b) Please address the Veteran's other gastrointestinal symptoms, to include providing him an examination. For example, at the July 2020 virtual hearing, the Veteran described the following upon his return from Saudi Arabia: "When I, when I came back from Saudi Arabia, I had the runs for months. I, I couldn't, I couldn't gain weight. I was losing. I lost weight. I couldn't put on weight, and I ate like a horse. And everything just came out liquid. I was on Zantac, Tagamet. I was on everything." TBI (a) Please clarify the Veteran's diagnosis. The Board asks that the examiner address the VA examinations and opinions of record, particularly references to memory issues. (b) Please noted that the Veteran is already service-connected for tension headaches, claimed as migraines. See Rating decision, February 2017. (c) Please address the Veteran's contention that he started experiencing a memory problem in 1991. See DRO hearing, June 2018. CFS (a) Please clarify the Veteran's diagnosis. The Board asks that the examiner address the VA examinations and opinions of record. In particular, the Board asks that the examiner address the November 2020 VA examination report that states under "Current Symptoms" that the Veteran "reports feeling tired all the time, and reports loss of strength/weakness/fatigue with any type of physical activities." (b) Please address the Veteran's contention that he started displaying CFS symptoms in 1991. See DRO hearing, June 2018. Fibromyalgia (a) Please clarify the Veteran's diagnosis. The Board asks that the examiner address the VA examinations and opinions of record. In particular, the Board notes that the November 2020 VA examination report indicates that continuous medication is required for control of fibromyalgia symptoms. (b) Please clarify whether the Veteran's pain symptoms are an undiagnosed illness, fibromyalgia, or degenerative arthritis. The Board notes that the Veteran is competent to describe his pain symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, the Board reminds the examiner that "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). (c) Please address the Veteran's contentions that he started experiencing pain symptoms in 1991. See DRO hearing, June 2018. The VA examiner should be given access to the claim file, including a copy of this remand. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.