Citation Nr: 21064898 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-03 856 DATE: October 21, 2021 REMANDED Entitlement to service connection for residuals of exposure to environmental hazards during service in the Persian Gulf, claimed as food allergies, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 through May 1995, to include service in the Southwest Asia Theater of Operations from December 1990 through March 1991. The issues on appeal arise from the Veteran's January 2009 claim and the agency of original jurisdiction's (AOJ's) November 2009 rating decision. As discussed in the Board's previous November 2020 remand, the Veteran raises assertions that his service-connected disabilities (primarily his hearing loss) have impacted his ability to work. Accordingly, the Board determined that the issue of the Veteran's entitlement to TDIU was raised implicitly by the evidence. The AOJ has undertaken efforts to complete the development ordered in the Board's previous remands. Although the Board regrets the further delay in the adjudication of the issues on appeal, the development undertaken to date is incomplete and further development is warranted at this time. 1. Medical opinion addressing the food allergies discovered during the private August 2009 food panel. The Veteran contends that he has various food allergies that he believes resulted from his active duty service, to include environmental exposure incurred during service in the Persian Gulf. As mentioned above, the Veteran has documented service in the Southwest Asia Theater of Operations. In conjunction with the same, private food panel tests conducted in August 2009 revealed that the Veteran was positive for allergies to various foods, including: asparagus; barley; cottage cheese; yogurt; clams; coconuts; corn; eggs; gluten; malt; milk; onions; peanuts; rye; soy; wheat; and, yeast. Separate testing conducted in 2014 showed also that the Veteran is mildly allergic to cashew nuts. Service connection may be warranted for a veteran who served in the Southwest Asia Theater of Operations and who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, the regulations recognize three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). The regulations identify various signs or symptoms that may be a manifestation of an undiagnosed illness. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). A MUCMI is defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It 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. MUCMIs of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The Board observes that previous medical opinions rendered in August 2014, September 2017, and November 2017 suggest that the Veteran's food allergies pre-existed his active duty service. Notwithstanding those opinions, no food allergies were reported by the Veteran or noted by physicians during the Veteran's April 1988 enlistment examination. Under the circumstances, it appears that the Veteran was free of food allergies at the time of his enlistment. Although this presumption may be rebutted by a showing of clear and unmistakable evidence to the contrary, there is no evidence in the record showing that the Veteran's food allergies clearly and unmistakably pre-existed his enlistment. Subject to the above, the previous examinations for the Veteran's food allergies have not addressed the question of whether the various allergies discovered in the private August 2009 test were incurred during active duty service and/or resulted from an in-service illness or event, to include service in the Persian Gulf. In that regard, the August 2014 examination appears to assume that the Veteran's food allergies pre-existed his enlistment, and on that basis, opines only that the Veteran's food allergies were not aggravated by his active duty service. The November 2017 opinion merely concurred that the Veteran's food allergies were not aggravated by the Veteran's active duty, and moreover, appears to focus solely upon the Veteran's cashew nut allergy. A June 2021 examination provides the opinion that the Veteran's cashew nut allergy likely did not result from the Veteran's active duty service, but again, does not touch upon any of the other food allergies noted in the August 2009 private study. For these reasons, the Veteran's previous food allergy examinations are incomplete. Accordingly, medical opinions should be obtained as to whether the food allergies noted in the August 2009 private study were incurred during the Veteran's active duty service, or, resulted from an injury, illness, or event that occurred during active duty service, to include as a result of the Veteran's service in the Persian Gulf. 2. Obtain VA Forms 21-4192 from the Veteran's employers. The Veteran reported during a December 2019 audiological examination that his service-connected hearing loss and tinnitus were impacting his ability to perform his occupational duties as a paramedic. To that end, he asserted that he relied largely upon reading lips in order to understand other people and that he often became confused. He stated also that he was unable to remove and reset his hearing aids during work for safety and sanitation reasons. VA treatment records indicate that the Veteran has remained employed as an overhead sprinkler system designer. The records show also that the Veteran works as a volunteer fire fighter. Still, it is unclear from the record as to whether the Veteran receives any work accommodations from his employers, and if so, whether the nature of those accommodations constitutes a protected work environment. Accordingly, the Veteran should be invited to submit VA Form 21-4192 Requests for Employment Information in Connection with Claim for Disability Benefits from his employers. 3. Mental health examination to determine functional and occupational impairment associated with PTSD. Notably, the examiner noted in the December 2019 audiological examination that he was unable to determine whether the Veteran's inability to focus was attributable to the Veteran's hearing loss and tinnitus or to symptoms associated with his service-connected PTSD. Although the examiner points to no specific observations or findings to support his belief that the Veteran may have functional difficulty associated with his PTSD, his observation seems to at least raise the question of whether the Veteran's PTSD currently presents the Veteran with cognitive functional difficulty that impairs his ability to work. In conjunction with the same, the Board notes that the Veteran has not undergone a PTSD examination since 2014. Under the circumstances, the Veteran should be afforded a mental health examination to determine how the symptoms and impairment associated with his PTSD impacts his ability to perform the mental acts necessary for employment. The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his food allergies and/or service-connected disabilities. Records for VA treatment received by the Veteran since February 2020 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain VA Form 21-4192 Requests for Employment Information in Connection with Claim for Disability Benefits from the Veteran's employers. If the information sought cannot be obtained, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 3. After the development described in Paragraph 1 is complete, obtain an opinion from an appropriately qualified clinician as to the nature and etiology of the food allergies discovered in the Veteran's August 2009 private allergy test. The evidentiary record, including a copy of this remand, must be made available to the reviewing clinician and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, the reviewing clinician should provide opinions as to the following: a) is it at least as likely as not (at least a 50 percent probability) that the Veteran's food allergies were incurred during the Veteran's active duty service? b) is it at least as likely as not that the Veteran's food allergies resulted from an injury, illness, or event that occurred during the Veteran's active duty service? c) by history, physical examination, and laboratory tests, is it at least as likely as not that the signs and symptoms associated with the Veteran's food allergies constitute an undiagnosed illness? d) if the signs and symptoms associated with the Veteran's food allergies are attributable to a diagnosed illness, is the etiology or pathophysiology of the condition not understood at all as to this particular Veteran? e) if the Veteran's food allergies and associated signs and symptoms are attributable to a diagnosed illness, and both the etiology and pathophysiology are understood at all as to this particular Veteran, is it at least as likely as not that the diagnosed disorder is attributable to the Veteran's active duty service? The reviewing clinician should note that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should be given. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any opinion cannot be given without resorting to mere speculation, the reviewing clinician must provide a complete explanation as to why the opinion cannot be given. In doing so, the reviewing clinician should explain whether such inability is the result of a need for additional information, or, that he or she has exhausted the limits of current medical knowledge. (Continued on the next page) 4. After the development described in Paragraphs 1 and 2 is complete, schedule the Veteran for a mental health examination to determine the symptoms and manifestations associated with the Veteran's service-connected PTSD, the severity thereof, and any associated functional impairment. The evidentiary record, including a copy of this remand, must be made available to the examiner and be reviewed by the examiner. 5. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Lee 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.