Citation Nr: 21067702 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-47 013 DATE: November 5, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU rating) is granted. REMANDED Entitlement to service connection for multiple sclerosis, to include as due to an undiagnosed illness and/or medically unexplained chronic multisymptom illness (MUCMI) as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for Sjogren's syndrome, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for arthritis, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for insomnia (sleep disorder), to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for intestinal problems, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran's service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1990 to January 1992. She also served on active duty for training from June 1982 to August 1982. For her meritorious service, the Veteran was awarded (among other decorations) an Army Service Ribbon, Bronze Service Star, and Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009, February 2012, and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. The claim of entitlement to service connection for multiple sclerosis was originally characterized as a claim that required the submission of new and material evidence before the claim could be considered on the merits. The Board finds, however, that new and material evidence has been submitted within one year of the March 2009 rating decision that originally denied the claim. Specifically, records received from the Social Security Administration in January 2010 indicated that the Veteran had been granted disability benefits based in part upon her having multiple sclerosis. This evidence is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Accordingly, this claim has been recharacterized as a service connection claim. Entitlement to a TDIU rating. A TDIU rating may be granted when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Initially, the Board concludes that the Veteran has met the schedular criteria for a TDIU rating throughout this appeal period. Specifically, she has been granted service connection for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling; and fibromyalgia, evaluated as 40 percent disabling. The combined disability evaluation for these disabilities is 70 percent. The remaining issue is whether the Veteran is able to secure or follow substantially gainful employment as a result of her service-connected disabilities. Based upon a longitudinal review of the record, the Board concludes that the Veteran's service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation. At her July 2021 Board hearing, the Veteran testified that her PTSD symptoms, including fatigue, irritability, anger, hypervigilance, and inability to interact with coworkers, prevent her from maintaining employment. She also testified that she has not been employed for the past ten years. An August 2017 letter from the Veteran's VA treating physician noted that her PTSD greatly impairs her ability to interact with others and to participate in gainful employment. The VA physician indicated that the Veteran's general quality of life is greatly impaired, and opined that the Veteran was totally and permanently disabled from any kind of gainful employment. SSA records indicate that the Veteran has been receiving disability benefits, with a primary diagnosis of anxiety disorder, since September 2008. Resolving all doubt in favor of the Veteran, when the effects of the Veteran's service-connected disabilities are combined, the Board concludes substantially gainful employment cannot be retained, and entitlement to a TDIU rating is warranted throughout this appeal period. REASONS FOR REMAND 1. Entitlement to service connection for multiple sclerosis, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 2. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 3. Entitlement to service connection for Sjogren's syndrome, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 4. Entitlement to service connection for arthritis, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 5. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 6. Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 7. Entitlement to service connection for insomnia (sleep disorder), to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. 8. Entitlement to service connection for intestinal problems, to include as due to an undiagnosed illness and/or MUCMI as a result of exposure to environmental hazards during the Persian Gulf War, and to include as secondary to service-connected disabilities. The Veteran contends that she has multiple sclerosis, chronic fatigue, Sjogren's syndrome, arthritis, memory loss, migraine headaches, and insomnia, as a result of her service exposure to environmental hazards during the Persian Gulf War. Alternatively, she contends that these conditions are secondary to her service-connected PTSD and fibromyalgia. Regrettably, the Board concludes that it cannot make a fully informed decision in this matter without additional development. In support of her claim, the Veteran submitted a letter from M.S., M.D., received in June 2011, noting that the Veteran's multiple sclerosis, Reiter's disease, reactive arthritis, erythema nodosum, Sjogren's syndrome, arteritis, chronic fatigue syndrome, and fibromyalgia are all auto-immune diseases or secondary to auto-immune disease. Dr. S. then opined that the Veteran's environmental exposures during the Persian Gulf War could have been the stressor or triggers that caused the activation of her previously dormant auto-immune diseases. Although speculative, the Board finds that the VA's duty to assist has been triggered by this opinion, and a remand for VA medical opinions addressing the issues on appeal are warranted. The Board also notes that the evidence of record does not adequately address whether the Veteran's claimed disabilities, including chronic fatigue, arthritis, memory loss, migraine headaches, insomnia, and intestinal problems, are attributable to a known clinical diagnosis or whether it is an objective indication of a chronic disability (a disability that existed 6 months or more) resulting from an undiagnosed illness related to the Veteran's service in the Persian Gulf. Under these circumstances, the Board concludes that new examinations should be scheduled to ascertain the nature of the Veteran's present disabilities, and also obtain medical opinions addressing whether any condition identified is related to the Veteran's military service, including whether each is due to an undiagnosed illness or other qualifying chronic disability from Persian Gulf War service and/or secondary to service-connected disabilities. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated her for her claimed disabilities since her discharge from the service. The Board is particularly interested in records dated prior to July 2009 and since October 2015. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of her claimed multiple sclerosis, Sjogren's syndrome, chronic fatigue, arthritis, memory loss, migraine headaches, insomnia, and intestinal problems. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability, considering the Veteran's claims of multiple sclerosis, Sjogren's syndrome, chronic fatigue, arthritis, memory loss, migraine headaches, insomnia, and intestinal problems. "Objective indications" of a qualifying chronic disability include both 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). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for her symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, her active service? G) The examiner should also address if any of the Veteran's claimed symptoms of multiple sclerosis, Sjogren's syndrome, chronic fatigue, arthritis, memory loss, migraine headaches, insomnia, and intestinal problems are at least as likely as not proximately due to or aggravated beyond its natural progression by her service-connected disabilities. (Continued on next page) A complete rationale must be provided for all opinions expressed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, Counsel 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.