Citation Nr: 21068784 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-33 393 DATE: November 12, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (also claimed as fatigue), to include as due to an undiagnosed illness and/or as secondary to a service-connected disability is remanded. Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness and/or as secondary to a service-connected disability is remanded. Entitlement to service connection for osteoarthritis, to include as secondary to prescribed equipment for the service-connected right knee disability is remanded. Entitlement to service connection for cervical myositis, to include as secondary to prescribed equipment for the service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from June 1983 to November 1983. Thereafter, he served on active duty from November 1989 to September 1992, to include service in the Persian Gulf War. These matters come before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to a May 2020 Board decision, the Board denied the claims for entitlement to service connection for chronic fatigue syndrome (also claimed as fatigue), to include as due to an undiagnosed illness, osteoarthritis, to include as secondary to prescribed equipment for the service-connected right knee disability, fibromyalgia, to include as due to an undiagnosed illness and/or as secondary to the service-connected right knee disability, and cervical myositis, to include as secondary to prescribed equipment for the service-connected right knee disability. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a July 2021 Order, the Court vacated the May 2020 Board decision to the extent it denied the above-mentioned claims and remanded the claims back to the Board for compliance with instructions pursuant to a July 2021 Joint Motion for Partial Remand (JMPR). The Board also notes that the May 2020 Board decision remanded several claims, to include service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, bipolar disorder (also claimed as mood disorder), depression (to include insomnia), bilateral neuropathy of the upper extremities, bilateral carpal tunnel syndrome, bilateral mild acute S1 radiculopathy, erectile dysfunction (claimed as secondary to medications prescribed for service-connected disabilities), diverticulitis (claimed as secondary to medications prescribed for service-connected disabilities), hypertension (claimed as secondary to medications prescribed for service-connected disabilities), and internal and external hemorrhoids (claimed as secondary to medications prescribed for service-connected disabilities and/or ulcers/gastritis). In addition, the Board remanded the claims for entitlement to increased disability ratings for the service-connected right knee meniscectomy with residuals of degenerative joint disease and the service-connected dermatitis with post-inflammatory hyperpigmentation. During the pendency of the remand, an August 2021 rating decision granted service connection for PTSD-insomnia, erectile dysfunction, left lower extremity radiculopathy (sciatic nerve), and right lower extremity radiculopathy (sciatic nerve). As that decision constitutes a grant of the claims for service connection for acquired psychiatric disorder, to include PTSD, anxiety disorder, bipolar disorder, and depression, bilateral mild acute S1 radiculopathy, and erectile dysfunction, the claims for service connection are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997), (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). Regarding the additional matters which were remanded by the Board in May 2020, to include the claims for service connection for bilateral neuropathy of the upper extremities, bilateral carpal tunnel syndrome, diverticulitis, hypertension, and internal and external hemorrhoids, as well as the claims for entitlement to increased disability ratings for the service-connected right knee meniscectomy with residuals of degenerative joint disease and service-connected dermatitis with post-inflammatory hyperpigmentation, the Veterans Appeals Control and Locator System (VACOLS) currently shows the claims remain in remand status and will be the subject of a later Board decision, if necessary. The parties to the JMPR agreed that the Board erred in its May 2020 decision when it failed to obtain all of the Veteran's service treatment records but relied on the silence in the Veteran's service treatment records to find that his service treatment records did not show that he was diagnosed with a chronic fatigue disability or musculoskeletal disability other than that attributed to a particular joint injury during service. Upon review of the record, the Board notes that the May 2020 decision also included remand instructions to obtain missing service treatment records. To that end, in January 2021, the RO submitted a Personnel Information Exchange System (PIES) request to the National Personnel Records Center (NPRC) to furnish the Veteran's complete medical/dental records and entire personnel file. Duplicate copies of the Veteran's service records were obtained. Thereafter, the RO sent the Veteran a letter in August 2021 notifying him that his service treatment records were requested but it did not appear that all of his service treatment records were obtained. In addition, the RO stated that the records could not be located and were therefore unavailable for review. The RO concluded that all efforts to obtain the records had been exhausted and further attempts to obtain the records would be futile. However, the RO did not document all efforts that it made to obtain the Veteran's service treatment records. In addition, it appears from the record that the RO merely initiated a single request to the NPRC in an attempt to obtain the Veteran's service treatment records pursuant to the May 2020 Board remand. Additional follow-ups were not conducted in an effort to determine whether any additional records could be located following the initial request. As such, remand is required to associate all missing service treatment records with the record in order to ensure that VA's duty to assist is satisfied. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010). The parties to the JMPR also agreed that the Board erred when it failed to make a finding as to whether fatigue alone, not chronic fatigue syndrome or fibromyalgia, is an undiagnosed illness for the purposes of 38 C.F.R. § 3.317, and as to whether the May 2014 VA examination is adequate regarding fatigue. The parties noted that the May 2014 VA examination noted fatigue but failed to determine whether this condition qualified as an undiagnosed illness. It is well established that when VA arranges for an examination/opinion in connection with a claim for benefits, it must ensure that the examination/opinion is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the Board notes that the July 2015 representative's brief indicated that the Veteran claimed his fibromyalgia was secondary to the pain he endures on a daily basis for his service-connected right knee condition. Regarding fatigue, the representative's brief indicated that the condition was "secondary to physical debilitating conditions." As such, the Board will broadly construe the claims for service connection as advancing secondary service connection as a theory of entitlement. Accordingly, remand is warranted to obtain an adequate VA examination. Finally, the parties to the JMPR agreed that the Board failed to adequately address aggravation in relation to the Veteran's claims for service connection for osteoarthritis and cervical myositis. The parties noted that the May 2014 VA examiner failed to address aggravation for cervical myositis. Regarding osteoarthritis, the examiner provided a positive nexus opinion that the condition was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. However, in his rationale, the examiner stated that "the hands osteoarthritis is related to the natural aging process," but provided that the "left knee and lumbar osteoarthritis are at least as likely secondary to the biomechanical effect of the constant use of Canadian crutches and the shifting of weight causing stress to the left knee and lumbar spine," but provided no explanation as to whether this applied to the osteoarthritis in the Veteran's hands. Further, aggravation was again not addressed by the examiner. In light of the above, the Board finds the May 2014 VA examinations are inadequate. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Accordingly, remand is warranted to obtain adequate VA examinations. See Barr, 21 Vet. App. at 312. Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Contact all pertinent records repositories to determine whether any portion of the Veteran's military personnel and service treatment records for his period of service from June 1983 to November 1983 and from November 1989 to September 1992 are available. All reasonable attempts should be made to obtain the records. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If any requested records are not available, or the search for any such records otherwise yields negative results, the RO must: (1) make a formal finding of unavailability and associate it with the claims file, and (2) send a notification letter of the unavailability of such records to the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 3. After records development is completed, schedule the Veteran for a VA Gulf War General Medical Examination to assess the Veteran's claimed conditions of: (i) fatigue, (ii) chronic fatigue syndrome, and (iii) fibromyalgia and obtain an opinion as to whether such are possibly related to service. Following review of the claims file and examination of the Veteran, the examiner should: (a.) Identify and characterize each of the Veteran's claimed disabilities as belonging to one of the four disability patterns: i. an undiagnosed illness, ii. a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, iii. a diagnosable chronic multi-symptom illness with a partially understood etiology and pathophysiology, or iv. a disease with a clear and specific etiology. (b.) For each claimed disability for which there is a diagnosis, the examiner must identify: i. the diagnosis, ii. whether the diagnosis has a conclusive, partially understood, or unknown etiology, and iii. whether the disease has a conclusive, partially understood, or unknown pathophysiology. (c.) If the examiner determines that any claimed disability has a conclusive etiology, please state what the etiology is and provide the reasoning for the conclusion. (d.) If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology OR a disease with a clear and specific etiology and diagnosis, then the examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the condition began in or is caused by service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia. Please explain why or why not, to include addressing the Veteran's contentions. (e.) If not related to service, to include service in the Persian Gulf War, is it at least as likely as not (50 percent probability or greater) that the claimed fatigue and/or fibromyalgia are caused by a service-connected disability? Please explain why or why not, to include addressing the Veteran's contentions. (f.) If not caused by a service-connected disability, is it at least as likely as not (50 percent probability or greater) that the Veteran's claimed fatigue and/or fibromyalgia are worsened beyond natural progression (aggravated) by a service-connected disability? Please explain why or why not, to include addressing the Veteran's contentions. 4. Schedule the Veteran for a VA arthritis examination to determine the nature of his osteoarthritis and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current osteoarthritis (to include osteoarthritis of the hands) arose during service or is otherwise related to service? Please explain why or why not, to include addressing the Veteran's contentions. (b.) If not related to service, is it at least as likely as not (50 percent probability or greater) that the osteoarthritis (to include osteoarthritis of the hands) is caused by the service-connected right knee disability, to include prescribed equipment for the right knee? Please explain why or why not, to include addressing the Veteran's contentions. (c.) If not caused by the service-connected right knee disability, is it at least as likely as not (50 percent probability or greater) that the Veteran's osteoarthritis (to include osteoarthritis of the hands) is worsened beyond natural progression (aggravated) by his service-connected right knee disability, to include prescribed equipment for the right knee? Please explain why or why not, to include addressing the Veteran's contentions. 5. Schedule the Veteran for a VA cervical spine examination to determine the nature of his cervical myositis and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current cervical spine disability (to include cervical myositis) arose during service or is otherwise related to service? Please explain why or why not, to include addressing the Veteran's contentions. (b.) If not related to service, is it at least as likely as not (50 percent probability or greater) that the cervical spine disability (to include cervical myositis) is caused by the service-connected right knee disability, to include prescribed equipment for the right knee? Please explain why or why not, to include addressing the Veteran's contentions. (c.) If not caused by the service-connected right knee disability, is it at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability (to include cervical myositis) is worsened beyond natural progression (aggravated) by his service-connected right knee disability, to include prescribed equipment for the right knee? Please explain why or why not, to include addressing the Veteran's contentions. A detailed rationale for the requested opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.