Citation Nr: 21067463 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-13 190 DATE: November 4, 2021 REMANDED Entitlement to service connection for fibromyalgia, including as due to undiagnosed illness is remanded. Entitlement to service connection for chronic fatigue syndrome, including as due to undiagnosed illness is remanded. Entitlement to service connection for a respiratory disability, including emphysema and chronic obstructive pulmonary disorder (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to April 1983 and from June 1984 to July 1992. He had service in Southwest Asia from September 4, 1990, to June 16, 1991, and from January 17,1991, to April 4, 1991. He was awarded the Combat Action Ribbon. See 38 U.S.C. § 1154(b). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision. In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran's claims for service connection were remanded by the Board in October 2019 and November 2020 for further development. Unfortunately, the Veteran's claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims, so he is afforded every possible consideration. 1. Entitlement to service connection for fibromyalgia, including as due to undiagnosed illness is remanded. 2. Entitlement to service connection for chronic fatigue syndrome, including as due to undiagnosed illness is remanded. Again, the Veteran states that he has current disabilities that are related to exposure to environmental hazards while serving in Southwest Asia during the Persian Gulf War. See June 2013 VA Form 21-526, Veteran's Application for Compensation and/or Pension. The Veteran's service personnel records demonstrate that he served in Southwest Asia during the Persian Gulf War and therefore the Board finds that he is a Persian Gulf War Veteran, and all relevant laws and regulations are applicable to his claims for service connection. 38 C.F.R. § 3.317(a)(1). The Veteran maintains that he has fibromyalgia and chronic fatigue syndrome manifested by symptoms of fatigue, poor sleep/feeling tired, not feeling refreshed after sleeping, lack of motivation, left arm muscle pain and numbness, right arm pain, low back pain, bilateral knee pain, right shoulder pain, bilateral ankle pain, chest pain, shortness of breath, dyspnea on exertion, and headaches. See VA examination report dated June 19, 2014; Hearing transcript, dated January 4, 2019; Hearing transcript, dated January 20, 2015. The Veteran's claims for service connection were remanded in November 2020, in part, to obtain medical opinions concerning whether the above symptoms constitute an undiagnosed illness(es) or a medically unexplained chronic multisymptom illness(es), including chronic fatigue syndrome and/or fibromyalgia. The remand directed the examiner providing the medical opinions that if any of the Veteran's symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness, to explain whether it/they are attributable to a known clinical diagnosis(es). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; 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. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id. Objective indications of a chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic 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; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In April 2021, the Veteran was afforded a Fibromyalgia Disability Benefits Questionnaire. The examination report states that the Veteran does not have a current diagnosis of fibromyalgia as there is no pathology. The medical history states that the Veteran reported his disability began in the mid-1990s with left arm pain, arm tingling, loss of grip strength, and weakness. When asked whether the Veteran's disability pattern is an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner explained that there is no pathology to render a diagnosis. The Veteran was provided an April 2021 Chronic Fatigue Syndrome (CFS) Disability Benefits Questionnaire. The examination report states that the Veteran does not have chronic fatigue syndrome. Concerning medical history, the Veteran provided that his claimed fibromyalgia began in the mid-1990s when he noticed he lacked motivation. He also experienced headaches and body aches. He currently has depression. When asked whether the Veteran's disability pattern is an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner explained that there is no diagnosis and no pathology. When asked if it is determined that the Veteran's disability pattern for fibromyalgia or chronic fatigue syndrome are diagnosable chronic multi-symptom illnesses with a partially explained etiology, or diseases with a clear and specific etiology and diagnosis, to opine whether the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia, the examiner stated there is no diagnosis and no pathology. The Veteran was also afforded a Gulf War General Medical Examination (Including Burn Pits) Disability Benefits Questionnaire in April 2021. The examination report states that respiratory, musculoskeletal, fibromyalgia, and chronic fatigue syndrome are identified as systems/areas that the Veteran has claimed as secondary to Southwest Asia exposure or that could represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The examination report states that there are no diagnosed illnesses for which no etiology has been established. Further, there are no additional signs and/or symptoms not addressed through completion of Disability Benefit Questionnaires identified in the above sections regarding signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The examination report concludes that there are no diagnoses relating to the Veteran's claimed COPD, fibromyalgia, chronic fatigue syndrome, and respiratory condition as there are no findings, signs and or symptoms to support such diagnoses. An April 2021 medical opinion states that the Veteran was last examined for his claimed disabilities in 2014. At that time, he was not diagnosed with fibromyalgia, chronic fatigue syndrome, or Gulf War syndrome. The Veteran does not have a current diagnosis of fibromyalgia, chronic fatigue syndrome, or Gulf War syndrome. The Veteran has untreated obstructive sleep apnea and mental health issues that could account for the overlapping symptoms that he is claiming. He also has neuropathic pain, low back pain, obesity, and other conditions that could cause his symptoms. The April 2021 medical opinion provides that the Veteran's examinations from 2014 are too distant in time and his symptoms are too complex and numerous to determine from the available records to address the questions posed by the December 2020 remand. Further, it does not appear that the Veteran has been evaluated by any medical provider for his fibromyalgia, chronic fatigue syndrome, or Gulf symptoms. The questions posed in the December 2020 remand could be answered by having the Veteran referred to the War Related Illness and Injury Study Center and/or provide the Veteran new examinations with evaluation of each claimed disability according to the medical opinion. The Board finds that the above medical opinions addressing the Veteran's reported symptoms are inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The above medical opinions do not consider whether the Veteran's symptoms are manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness. As such, a remand is warranted to obtain addendum medical opinions concerning the nature and etiology of the Veteran's symptoms. 3. Entitlement to service connection for a respiratory disability, including emphysema and COPD is remanded. The Veteran's claim for service connection was remanded by the Board in December 2020, in part, to obtain a medical opinion to determine whether the Veteran's respiratory disability is related to his active service, to include environmental exposures while he served in Southwest Asia. Pursuant to the Board's remand, the Veteran was afforded an April 2021 Respiratory Conditions (other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire. The examination report states that the Veteran does not have and has never been diagnosed with a respiratory disability. The medical history section of the examination report indicates that the Veteran reported that his respiratory disability began with labored breathing with or without exertion. He became lightheaded and weak. He advised that he was treated in 2009 or 2010 by civilian physicians and was diagnosed with emphysema/COPD. He has current symptoms of fatigue and labored breathing with or without exertion. When asked whether the Veteran's claimed emphysema, COPD, or respiratory disability is/are an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner explained that there is no pathology to render a diagnosis. When asked if it is determined that the Veteran's disability pattern for emphysema, COPD, and a respiratory disability are diagnosable chronic multi-symptom illnesses with a partially explained etiology, or diseases with a clear and specific etiology and diagnosis, to opine whether the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia, the examiner stated there is no diagnosis and no pathology. The Board notes that a September 2017 CT scan of his chest showed that the Veteran has a complex nodule in the right lung lobe and solid nodule in the left lung lobe. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). The above medical opinions do not address the nature and etiology of this respiratory disability. Accordingly, there has not been substantial compliance with the Board's November 2020 remand, and an addendum medical opinion must be obtained concerning the nature and etiology of the Veteran's respiratory disability. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 2. After the above development is completed, obtain an addendum medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed fibromyalgia and chronic fatigue syndrome. The clinician must review the Veteran's claims file. The examiner must: (a.) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms of fatigue, poor sleep/feeling tired, not feeling refreshed after sleeping, lack of motivation, left arm muscle pain and numbness, right arm pain, low back pain, bilateral knee pain, right shoulder pain, bilateral ankle pain, chest pain, shortness of breath, dyspnea on exertion, headaches, diarrhea, abdominal pain, and intermittent vomiting constitute an undiagnosed illness(es) or a medically unexplained chronic multisymptom illness(es), including chronic fatigue syndrome and/or fibromyalgia. Please note: "A medically unexplained chronic multisymptom illness" means an 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. In rendering the opinion, the examiner should consider the following: A March 1991 service treatment record states that the Veteran was exposed to hazardous fluorocarbons during operations in Al-Wafra and Al-Burquan oil fields in Kuwait. The Veteran's service treatment records contain notations for multiple musculoskeletal complaints including right shoulder pain, right knee pain, lower back pain, and bilateral ankle pain. See service treatment records dated 3/27/1985(back pain); 8/26/1985 (lower back pain); 11/24/1987 (steady anterior ankle pain bilaterally); 2/15/1989 (thoracic paraspinal muscle strain vs. spasm); 11/22/1989 (right arm tingles, right arm and shoulder pain); 2/21/1990 (painful swelling of right knee and ankle joints); 3/30/1990 (low back sprain); 3/10/1992 (Report of Medical History, complaints of cramps in legs, recurrent back pain); and 5/28/1992 (right knee pain); and The Veteran's service treatment records document complaints of headaches, chest pain, and dizziness. See service treatment records dated 6/13/1986 (mid-sternal chest pain and dizziness, costochondritis); 8/25/1986 (headaches); 1/27/92 (headache, chest pain; adjustment disorder with anxiety and somatic symptoms); 3/10/1992 (Report of Medical History, complaints of frequent or severe headaches, pain or pressure in chest). If ANY of the Veteran's symptoms are not due to an undiagnosed illness or medically unexplained chronic multisymptom illness, the examiner should explain whether it/they are attributable to a known clinical diagnosis(es). The complete rationale for all opinions expressed must be set forth by the clinician. 3. Obtain an addendum medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's respiratory disability. The clinician must review the Veteran's claims file. The examiner must: (a.) Opine whether the Veteran's respiratory disability, including a complex nodule in the right lung lobe and solid nodule in the left lung lobe, is at least as likely as not (50 percent probability or greater) related to service, including environmental exposures while serving in Southwest Asia. See September 2017 CT scan of the Veteran's chest. In rendering the opinion, the examiner should consider the following: The Veteran's service treatment records contain notations of bronchitis in February 1991 and February 1992. A March 1991 service treatment record states that the Veteran was exposed to hazardous fluorocarbons during operations in Al-Wafra and Al-Burquan oil fields in Kuwait. The complete rationale for all opinions expressed must be set forth by the clinician. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.