Citation Nr: 21061927 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-10 927A DATE: October 5, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for hallux valgus with mild degenerative changes, right foot is remanded. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for fibromyalgia, to include as due to exposure to environmental hazards and/or as an undiagnosed illness, qualifying chronic disability, or medical unexplained chronic multisymptom illness (MUCMI), is remanded. Entitlement to service connection for musculoskeletal joint pain of wrist, shoulders, and neck, to include as due to exposure to environmental hazards and/or as an undiagnosed illness, qualifying chronic disability, or MUCMI, is remanded. Entitlement to service connection for sleep apnea, to include as due to exposure to environmental hazards and/or as an undiagnosed illness, qualifying chronic disability, or MUCMI, is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from June 1980 to December 2001, with service in Southwest Asia theatre of operations. In August 2020, the Board denied the claims for service connection for TBI, an acquired psychiatric disability, fibromyalgia, musculoskeletal joint pain of wrist, shoulders, and neck, and sleep apnea. The Board also awarded a 10 percent rating for hallux valgus, right foot, with mild degenerative changes, and granted service connection for left lower extremity peripheral neuropathy. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted the parties' Joint Motion for Remand (JMR), and remanded the appeal to the Board for action consistent with the terms of the JMR. The JMR also observed that the Board's awards of service connection for left lower extremity peripheral neuropathy and of a 10 percent rating from October 8, 2014, for hallus valgus with mild degenerative changes, right foot, are favorable findings that may not be disturbed. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). However, the issue of whether a rating in excess of 10 percent for hallux valgus remains on appeal. In August 2020, the Board also remanded the issue of service connection for a prostate condition, including prostate cancer. This issue was again remanded by the Board in September 2021 in a separate decision for further development. Entitlement to an evaluation in excess of 10 percent for hallux valgus with mild degenerative changes, right foot; entitlement to service connection for residuals of TBI; entitlement to service connection for an acquired psychiatric disability; entitlement to service connection for fibromyalgia; entitlement to service connection for musculoskeletal joint pain of wrist, shoulders, and neck; and entitlement to service connection for sleep apnea are remanded. Initially, the JMR found that the Board failed to ensure that the duty to assist was satisfied as the Veteran had reported receiving ongoing private treatment from Dr. J and there was no evidence in the record that appropriate steps were taken to obtain these records. As such, a remand is required so that the agency of original jurisdiction (AOJ) can attempt to obtain such records. Moreover, the JMR pointed out that the record shows that the Veteran had applied for Social Security Administration (SSA) disability benefits. However, SSA records have not been associated with the file and it does not appear that VA has attempted to obtain the SSA records. Thus, on remand, the AOJ must attempt to obtain these records. The JMR also noted that the Veteran had a VA sleep clinical evaluation in December 2015, which is not associated with the record. Although there is a letter in the VA clinical record showing the results of the sleep study, it does not appear that the actual sleep study had been scanned into the record. Thus, in order to comply with the JMR, the AOJ should attempt to upload into the electronic record the December 2015 sleep clinical evaluation. In light of the need to remand, additional VA clinical records dated from October 2020 to the present should also be obtained. With respect to the Veteran's claimed psychiatric disability, the Veteran was afforded a VA examination in June 2020. The examiner found that the Veteran did not meet the criteria for a diagnosis of a mental disorder. However, the JMR found that this examination was inadequate because the examiner stated that one of Veteran's claimed stressors met Criterion A to support a diagnosis PTSD, but then found that Criterion A was not met. The examiner provided no explanation for this contradiction. Additionally, the examination request noted that the Veteran had a positive depression screening in October 2019; however, the examiner failed to address this record. Given that the June 2020 VA examination has been found to be inadequate as it does not appear that the examiner considered all of the relevant evidence of record, the Veteran should be afforded a new VA psychiatric examination. Further, with respect to the issue of service connection for fibromyalgia, the JMR also found that the September 2013 VA examination addressing this disability was inadequate. The JMR determined that the examiner did not explain why the Veteran did not meet the criteria for a diagnosis of fibromyalgia and, thus, a new VA examination was warranted. Likewise, the JMR found that the Board failed to adequately address whether the Veteran's claimed conditions constitute a MUCMI. In this regard, the Board only addressed whether the Veteran's claimed conditions had known etiologies, but did not address whether there was a known pathophysiology. Thus, a further examination and opinion is also needed with respect the Veteran's claims for service connection for musculoskeletal joint pain of wrist, shoulders, and neck; and sleep apnea. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. J and any other private providers who treated the Veteran for the disabilities on appeal. Make two requests for the authorized records from any identified physicians and/or facilities unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's records from SSA. Document all requests for information as well as all responses in the claims file. 3. Upload into the electronic record, the December 2015 VA sleep clinical evaluation. If such record does not exist, please clearly state so in the record. Also, obtain VA treatment records dated from October 2020 to the present. 4. Schedule the Veteran for an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of any acquired psychiatric disorder, to include PTSD. The examiner must review the entire claims file, to include a copy of this remand, in conjunction with the examination. The examiner should identify all of the Veteran's acquired psychiatric disorders and specifically indicate whether the Veteran meets the diagnostic criteria for PTSD. If the examiner finds that the Veteran meets the criteria for PTSD, the examiner must opine whether it is at least as likely as not due to fear of hostile military or terrorist activity while serving in a combat area in the Gulf War. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service. A detailed rationale for all opinions expressed should be provided. If the examiner finds that the Veteran does not meet the criteria for a diagnosis of a mental disorder, the examiner must rectify this finding with the positive October 2019 depression screening. 5. 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; musculoskeletal joint pain of wrist, shoulders, and neck; and sleep apnea. 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; musculoskeletal joint pain of wrist, shoulders, and neck; and sleep apnea 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.) With respect to each diagnosis determined or identified for the Veteran's claimed fibromyalgia; musculoskeletal joint pain of wrist, shoulders, and neck; and sleep apnea, determine whether it is at least as likely as not 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 without conclusive etiology; or 4) diagnosable chronic multi-symptom illness without conclusive pathophysiology; or 4) is a disease with a clear and specific etiology, known pathophysiology and diagnosis. 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. (c.) With respect to each diagnosis for fibromyalgia; musculoskeletal joint pain of wrist, shoulders, and neck; and sleep apnea, if the diagnosis is not considered MUCMI, determine whether it is at least as likely as not that it began during or is etiologically related to the Veteran's active duty service, to include environmental exposures in the Southwest Asia theatre of operations. 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.