Citation Nr: 21062401 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-10 986A DATE: October 7, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to Gulf War service, is dismissed. REMANDED Entitlement to service connection for a gastrointestinal condition to include, diverticulitis is remanded. Entitlement to service connection for joint pain, claimed as due to Gulf War syndrome is remanded. FINDING OF FACT At the June 2021 Board hearing, prior to the promulgation of a decision on appeal, the Veteran withdrew his claim for entitlement to service connection for CFS; such was confirmed in July 2021 correspondence. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for CFS have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the Army National Guard, with periods of active duty service with the U.S. Army from May 1988 to September 1988, from December 1990 to July 1991, and from October 2004 to December 2005. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2015 rating decision by the agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran filed a claim seeking service connection for diverticulitis. A claim for a gastrointestinal condition includes any disorder that is reasonably encompassed by the claimant's symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The claim is recharacterized as a claim of entitlement to service connection for a gastrointestinal condition, however diagnosed. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the July 2021 Board hearing, the Veteran and his attorney requested withdrawal of his appeal regarding entitlement to service connection for CFS. The VLJ notified the Veteran and his representative of the consequences of the withdrawal; the withdrawal was explicit and unambiguous and nothing in the record indicates that the Veteran did not fully understand the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Further, the withdrawal was confirmed by the Veteran's attorney in July 2021 correspondence. Accordingly, the Board does not have jurisdiction to review the appeal on that issue and it is dismissed. REASONS FOR REMAND Gastrointestinal Condition In March 2015, the Veteran was afforded a VA intestinal conditions examination. The Veteran's C-file was not review; the examiner noted that only the Veteran's VA treatment records were reviewed. The Veteran was not diagnosed with an intestinal condition. The Veteran reported that he was diagnosed with diverticulitis in 2007 or 2008 at Sistersville Hospital. He indicated that he went to the ER for abdominal pain and was told that he had diverticulitis and polyps in his colon. He indicated that he did not have a colonoscopy. He was advised to change his diet. The examiner noted that the Veteran's history was not consistent with diverticulitis. He noted that his diagnosis could not be confirmed without complete private sector medical records. The examiner noted that a review of the medical literature did not reveal evidence that diverticulitis or diverticulosis were caused by environmental exposures. As the examiner states he did not review the complete file, and therefore did not consider all relevant evidence, the March 2015 examination is inadequate, and remand is required for a new examination. Further, in May 2016, the Veteran submitted private medical records related to a 2006 episode, to include a February 2006 private radiology report. The radiology report documented that the Veteran had a right lower quadrant sigmoid diverticulitis. In June 2021, the Veteran testified that he had his initial episode in 2006, which was his worst episode. He indicated that he has had ongoing intestinal symptoms but were at a much lesser degree. He stated that he had stomach cramps and loose stool. He indicated that he took stool softeners. His stated that his condition caused him to have continuous stomach pain and the sense of urgency to go to the bathroom after he ate. Since his big episode in 2006 he has had constant symptoms that came in waves. He indicated that during his examination he discussed symptoms of diarrhea, urgency, and frequency. He noted that the VA was going to do a follow-up on his gallbladder as a possible cause of his symptoms. He noted that he did not know if his condition was a general gastrointestinal issue or not. The Board notes that the evidence of record does not have an opinion addressing whether the GI symptoms were attributable to a MUCMI. The term MUCMI "means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii). The presence of a current diagnosis does not preclude a finding of a MUCMI. The Veteran has submitted his private records demonstrating that he was diagnosed with diverticulitis. Further, he has described symptoms that that could be contributed to a gastrointestinal condition. The Board finds that a new VA examination should be obtained discussing the Veteran's lay statements and discussing whether the GI symptoms are attributable to an undiagnosed illness or MUCMI. Joint Pain In March 2015, the Veteran was afforded a VA fibromyalgia examination. The Veteran was not diagnosed with fibromyalgia. The Veteran reported that he had problems with his right hip, bilateral knees, and bilateral hands. The examiner remarked that his trigger point examination was negative. She concluded that the Veteran did not have fibromyalgia. The examiner indicated that only VA treatment records, and not the complete claims file, were reviewed in conjunction with this examination, rendering it inadequate, as is discussed above. In March 2015, the Veteran was also afforded a number of joint-specific VA examinations. Interestingly, the same VA examiner stated she had reviewed the complete claims file for these examinations. The Veteran was diagnosed with right hip tenosynovitis, bilateral knee patellofemoral pain syndrome, and bilateral hand tenosynovitis. The VA examiner provided a negative nexus opinion. Her rationale was that the medical literature revealed no evidence between environmental exposures and the development of orthopedic/ musculoskeletal conditions. In June 2021, the Veteran testified that his condition was caused by the normal wear and tear of his military service. He stated that his pain would come and go. He noted that he had pain in his hips, knees, knuckles, and elbows. He stated that most of his pain came after he departed from service. He stated that he did not have any incidents that would contribute to his conditions. In light of the foregoing, the Veteran should be afforded a new VA examination addressing the nature and etiology of all of the Veteran's claimed condition, to include discussion of his competent and credible lay statements. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for any claimed conditions. A release for Sistersville Hospital and all other providers who have treated him for gastrointestinal symptoms must be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain updated VA treatment records. 3. Schedule the Veteran for an appropriate VA examination of the digestive/gastrointestinal system. The claims folder must be reviewed in conjunction with the examination. All currently diagnosed gastrointestinal conditions must be identified. The examiner must specify whether the Veteran's gastrointestinal condition, to include diverticulitis is an undiagnosed illness, functional gastrointestinal disorder, or MUCMI. The examiner must opine as to whether it is at least as likely as not that any current gastrointestinal condition is caused or aggravated by his active service, to include exposure to environmental hazards while serving in the Gulf War. A full and complete rationale addressing both documentary evidence and the Veteran's competent and credible lay statements must be provided for any opinion reached. 4. Schedule the Veteran for a VA fibromyalgia examination, as well as appropriate joint-specific musculoskeletal examinations. The claims file must be reviewed in conjunction with the examinations. All currently diagnosed conditions of the joints and/or musculoskeletal system must be identified. The examiner must specify whether the Veteran's musculoskeletal complaints represent an undiagnosed illness or MUCMI. The examiner must opine as to whether it is at least as likely as not that any current musculoskeletal condition is caused or aggravated by his active service, to include a) exposure to environmental hazards while serving in the Gulf War, and or b) the wear and tear of active military service. A full and complete rationale addressing both documentary evidence and the Veteran's competent and credible lay statements must be provided for any opinion reached. The examiner is reminded that VA has found evidence that environmental exposures can impact the development of orthopedic symptoms. 38 C.F.R. § 3.317(b). 4. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.