Citation Nr: 21062254 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 09-26 727 DATE: October 6, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for Persian Gulf War Syndrome, to include gastroesophageal reflux disease (GERD), including as secondary to service-connected disabilities and associated prescribed medications, is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome with degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis and sinusitis prior to January 12, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to an effective date prior to April 14, 2011, for the grant of special monthly compensation (SMC) is remanded. Entitlement to an effective date prior to May 3, 2010, for the grant of eligibility to dependents' educational assistance (DEA) under 38 USC Chapter 35 is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1981 to July 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007, August 2010, and December 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2007 rating decision, the RO continued the previous denial of service connection for Persian Gulf War Syndrome, to include fatigue, eating, and stomach problems. In the August 2010 rating decision, the RO, in pertinent part, continued the 10 percent ratings for left knee degenerative joint disease and patellofemoral pain syndrome (left knee disability) and right knee patellofemoral pain syndrome (right knee disability), respectively. In the December 2012 rating decision, the RO, in relevant part, granted service connection for allergic rhinitis and assigned a 10 percent disability rating, effective January 22, 2009, granted entitlement to SMC based on total service-connected disability with additional disabilities ratable as 60 percent or more, effective April 14, 2011, and granted basic eligibility to DEA, effective April 14, 2011. In a subsequent rating decision, DEA was established, effective May 3, 2010. In a July 2018 decision, the Board reopened the issues of entitlement to service connection for Persian Gulf War Syndrome, to include chronic fatigue and stomach problems, and remanded all issues for additional evidentiary development. In a February 2020 decision, the Board denied service connection for Persian Gulf War Syndrome, to include GERD, and denied ratings in excess of 10 percent for right and left knee disabilities, respectively, and denied an initial rating in excess of 10 percent for allergic rhinitis prior to January 12, 2019, and a rating in excess of 30 percent for allergic rhinitis and sinusitis from January 12, 2019. The remaining issues were remanded. The Veteran appealed the February 2020 Board decision to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a joint motion for a partial remand (JMR), which vacated and remanded the February 2020 Board decision to the extent that it denied Persian Gulf War Syndrome, to include GERD, denied ratings in excess of 10 percent for left and right knee disabilities, respectively, and denied entitlement to a rating excess of 10 percent for allergic rhinitis and sinusitis prior to January 12, 2019, and in excess of 30 percent from January 12, 2019. CAVC granted the JMR in a February 2021 Order. 1. Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran asserts that he has experienced continuous fatigue since returning from his service in Saudi Arabia. Military personnel records confirm that the Veteran is a Persian Gulf Veteran and served in Saudi Arabia in 1991. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. During an April 1995 VA examination, the Veteran was assessed with subjective reports of chronic fatigue. In a June 2001 statement, the Veteran indicated that he had constant fatigue due to exposures to the chemicals in Saudi Arabia. The Veteran submitted an opinion by K.B., M.D., dated in September 2009, who concluded that chronic fatigue was more likely than not related to his military duty. The Veteran underwent a VA examination in July 2019, at which time the examiner initially noted that he had a diagnosis of chronic fatigue syndrome and listed symptoms attributable to chronic fatigue syndrome, including fatigue lasting 24 hours or longer, sleep disturbance, and cognitive impairment. However, the examiner later indicated that the Veteran's fatigue was not the same as chronic fatigue syndrome and would need a further evaluation to rule out the possible cause of fatigue. An addendum opinion was issued in March 2020, at which time the examiner indicated that there was no medical diagnosis of chronic fatigue document in the Veteran's service-treatment records or medical treatment records. After a review of the evidence, the Board finds that the medical opinions are insufficient to determine the present claim. In this regard, there is conflicting evidence as to whether the Veteran has a diagnosis of chronic fatigue syndrome or if he has a separate and distinct fatigue disability related to service. Accordingly, the Board finds that a new VA examination is warranted on remand in order to assess the nature and etiology of his fatigue. 2. Entitlement to service connection for Persian Gulf War Syndrome, to include gastroesophageal reflux disease (GERD), including as secondary to service-connected disabilities and associated prescribed medications, is remanded. Throughout the rating period on appeal, the Veteran has been assessed with GERD and asserts that it was incurred in service and/or secondary to the medications prescribed for his service-connected disabilities. Treatment records dated in August 1996 indicate that the Veteran continued to experience gastrointestinal problems, which started while he was in the Persian Gulf War. Subsequent treatment records dated in February 2004 through October 2009 indicated that the Veteran had attempted NSAID [non-steroidal anti-inflammatory] therapy for his bilateral knee disability but was unable to tolerate the medication due to gastrointestinal side effects. The Board notes that pursuant to the February 2021 CAVC Order, this issue was vacated and remanded due to the fact that a medical opinion has not been obtained regarding whether the Veteran's GERD is secondary to his service-connected disabilities, including prescribed medications. Accordingly, the Board finds that a remand is warranted in order for a medical opinion to be obtained as to whether the Veteran's GERD was incurred in service and/or secondary to service-connected disabilities and associated prescribed medications. 3. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome with degenerative joint disease is remanded; 4. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. During the latest VA examination in July 2019, the Veteran reported flare-ups of bilateral knee pain while bending, stooping, and walking and standing for prolonged periods of time. The examiner did not provide an estimated range of motion loss during a flare-up and indicated that he had no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the US Court of Appeals for Veterans Claims (CAVC) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Pursuant to the February 2021 CAVC Order, these issues were vacated and remanded due to the July 2019 examiner's failure to conduct a review of the record and provide an opinion regarding his bilateral knee motion loss during periods of flare-ups. The Board agrees and finds that a remand is warranted in order for a new VA examination to be performed. 5. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis and sinusitis prior to January 12, 2019, and in excess of 30 percent thereafter is remanded. As directed by the February 2021 CAVC Order, this issue was vacated and remanded in order to assess whether separate ratings for allergic rhinitis and sinusitis are warranted throughout the rating period on appeal, or from January 2009. The Board notes that the Veteran was awarded service connection for allergic rhinitis, effective January 22, 2009, and subsequently allergic rhinitis and sinusitis, effective January 12, 2019. However, treatment records reveal that he was assessed with sinusitis as far back as 2011 and during a January 2014 VA examination. Accordingly, the Board finds that a medical opinion is warranted in order to assess the severity of his allergic rhinitis and sinusitis separately throughout the rating period on appeal, or from January 2009. 6. Entitlement to an effective date prior to April 14, 2011, for the grant of special monthly compensation (SMC) is remanded; 7. Entitlement to an effective date prior to May 3, 2010, for the grant of eligibility to dependents' educational assistance under 38 USC Chapter 35 is remanded. The Board notes that the issues of entitlement to earlier effective dates for the grants of SMC and DEA are intertwined with the pending claims and will defer adjudication at this time. Lastly, the Board notes that VistA images associated with the Veteran's VA treatment records are not associated with the claims file. Accordingly, these records should be obtained and associated with the claims file on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from April 2020 to the present. 2. Obtain and associate with the claims file the Veteran's VistA images associated with his VA treatment records. 3. After completion of #1 and #2, schedule the Veteran for a VA examination to assess the nature and etiology of his fatigue and GERD by an appropriate clinician(s). A copy of the claims file, including this remand, should be reviewed in its entirety and such review should be noted in the examination report. The examiner should respond to the following: A. Please state whether the Veteran has had a diagnosis of chronic fatigue syndrome throughout the rating period on appeal, or from August 2006. Please provide a rationale for any response. B. If the Veteran does not have a diagnosis of chronic fatigue syndrome, please state whether his fatigue is attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had such disability, when did that disability resolve? Please note that the Veteran filed his claim in August 2006 and any such disability from August 2006, or shortly prior to that date, to the present is considered a current disability. C. If fatigue is not attributable to a known clinical diagnosis, then is 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? D. For any diagnosed fatigue disability and GERD, is it at least as likely as not (probability of at least 50 percent) that any diagnosed fatigue disorder and/or GERD had its onset during and/or are otherwise related to the Veteran's period of active service, including Gulf War environmental exposures? E. With regard to GERD, if not directly related to service, is it at least as likely as not (probability of at least 50 percent) that the Veteran's GERD was caused by his service-connected disabilities, including any prescribed medication(s)? If not, is it at least as likely as not (probability of at least 50 percent) that his GERD has been aggravated (any incremental increase in disability) as a result of his service-connected disabilities, including any prescribed medication(s)? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and GERD that shows a baseline of his GERD prior to aggravation? If so, please identify. F. With regard to fatigue, if there is no diagnosed disability, is it at least as likely as not (50 percent probability or more) that his fatigue results in functional impairment of earning capacity? Please describe. If so, is this fatigue at least as likely as not (50 percent probability or more) related to the Veteran's period of active service, including Gulf War environmental exposures? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination by an appropriate clinician to determine the severity of his service-connected right knee and left knee disabilities. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. He or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The presence or absence of ankylosis should be noted. The examiner is to indicate the presence or absence of lateral instability and/or recurrent subluxation in the Veteran's right and/or left knee. The Veteran is service connected for instability and he or she should discuss whether such instability is slight, moderate, or severe. From February 7, 2021, the examiner should also discuss whether the instability manifests in a sprain, incomplete ligament tear, complete ligament tear (repaired, unrepaired, or failed repair), causing persistent instability and/or whether a medical provider prescribed an assistive device and/or bracing for ambulation. If a diagnosed patellar instability is found involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), the examiner should discuss whether it manifests in recurrent instability, required surgical repair, and/or requires a prescription from a medical provider for a brace, cane, or walker. Further, the examiner must indicate whether there is cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint or partial removal of the semilunar cartilage. The examiner must also indicate whether there is an impairment of the tibia and fibula. If so, the examiner should discuss whether there is nonunion of, with loose motion, requiring a brace or malunion of with marked, moderate, or slight knee or ankle disability. If so, from February 7, 2021, and ongoing, the examiner should also discuss whether it requires treatment, the duration of such treatment, and whether it is responsive to such treatment, including conservative, surgical, or shoe orthotics treatment. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1 and #2, forward the claims file, including a copy of this remand, to the January 2019 VA examiner for an addendum opinion. If the January 2019 VA examiner is unavailable, an addendum opinion should be obtained from an appropriate clinician. The examiner should conduct a full review of the record and respond to the following: A. How far back do the January 2019 examination results apply to allergic rhinitis and sinusitis? B. With regard to sinusitis, please discuss the severity of this disability throughout the rating period on appeal, or from January 2009. Specifically, the examiner should state whether the Veteran's sinusitis is or has been productive of incapacitating episodes, and if so, at what frequency. The examiner should also note whether the sinusitis requires or previously required the use of antibiotic treatment, and whether the disability is or was manifested by headaches, pain, and purulent discharge or crusting or has required surgery. C. With regard to allergic rhinitis, please discuss the severity of this disability throughout the rating period on appeal, or from January 2009. Specifically, the examiner should discuss whether the Veteran's allergic rhinitis currently includes or has previously manifested with polyps or without polyps but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.