Citation Nr: 21068947 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-32 906 DATE: November 17, 2021 REMANDED Entitlement to service connection for a thyroid condition, to include multinodular goiter status post thyroidectomy, to include as due to a medically unexplained chronic multisymptom illness, is remanded. Entitlement to service connection for a stomach condition and nodules, to include as due to a medially unexplained chronic multisymptom illness, is remanded. Entitlement to service connection for a gallbladder condition, to include cholelithiasis status post cholecystectomy, to include as due to a medically unexplained chronic multisymptom illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to August 1992, including service in Southwest Asia during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript will be added to the record. Historically, the Veteran's claims for service connection for thyroid and gallbladder conditions were denied in an October 2016 rating decision on the basis of no nexus between the claimed conditions and service. In May 2017, VA treatment records were added to the file that indicate the Veteran has gastrointestinal symptoms, joint pain, and undiagnosed illness related to his chemical exposure in during the Persian Gulf War. See April 14, 2017 Addendum: Persian Gulf Exam and Depleted Uranium Worksheet, Nashville Valley HCS. In a July 2017 rating decision, the RO adjudicated the Veteran's claims for his thyroid and gallbladder as ones for whether new and material evidence had been received to reopen the claims. The Board, however, finds pursuant to 38 C.F.R. § 3.156 (b) that new and material evidence was received within one year of the October 2016 rating decision. In particular, the Persian Gulf Exam received in May 2017 speaks to the nexus element of his claims, which was the basis of the prior denial, as the Veteran has explained all three of his claimed conditions involve gastrointestinal symptoms and may be part of a disability pattern consistent with an undiagnosed illness. Accordingly, the October 2016 rating decision is not final, as this evidence was received within one year of its issuance. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Medically Unexplained Chronic Multisymptom Illnesses (MUCMIs) Under 38 C.F.R. § 3.317, symptoms due to an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), including chronic fatigue syndrome, may be service-connected on a presumptive basis if they manifest to a compensable degree after Persian Gulf War service in the Southwest Asia theater of operations, even if there is no other link to service. A 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). The United States Court of Appeals for Veterans Claims has clarified that an illness is considered a MUCMI where either its etiology or its pathophysiology is inconclusive, but not where both the etiology and the pathophysiology are partially understood. Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). Furthermore, the determination of whether a condition is a MUCMI should be based on an individual veteran's circumstances, rather than the illness as it is understood by the general public. Id. at 91. 1. Entitlement to service connection for a thyroid condition, to include multinodular goiter status post thyroidectomy, to include as due to a MUCMI, is remanded. The Veteran seeks service connection for a thyroid condition either as directly related to service, or as a part of a disability pattern consistent with a MUCMI. Initially, the Board notes the Veteran has not been provided a VA examination to investigate whether his thyroid condition is directly related to service, despite evidence that it may be. For example, the Veteran has a current diagnosis of multinodular goiter and presumed exposure to chemicals, including possible exposure to depleted uranium, during his service in the Persian Gulf. Additionally, the Veteran explained at his November 2021 hearing that he began experiencing fatigue that was eventually related to his thyroid condition approximately a year after his separation from service, has been on medication for his thyroid since service, and that two other individuals he served with have developed thyroid problems. The record also includes a November 2021 opinion from the Veteran's primary care physician that environmental exposures in the Persian Gulf "may" have resulted in the development of the Veteran's thyroid problems. Unfortunately, the primary care physician's use of the equivocal language "may" undermines the probative value of his medical opinion, such that it cannot serve as the basis for granting service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding equivocal language such as "may be" is the same as "may not be" and therefore cannot provide the requisite nexus for a grant of service connection). Nonetheless, this evidence indicates the Veteran's thyroid condition may be directly related to his service, such that a VA examination investigating this link is warranted. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the May 2018 Statement of the Case suggests the Veteran underwent a Gulf War general examination related to his thyroid condition in May 2017. However, there is no indication within the examination report that his thyroid condition was considered with his other claimed conditions in relation to whether his disability pattern is consistent with a MUCMI. The report only notes "stomach and duodenal conditions." Further, the examiner then provided the conclusory rationale: "Veteran's disability pattern/s are diseases with clear and specific etiology and diagnosis and are not related to any exposures during service." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). However, etiologies for the Veteran's claimed conditions are noticeably absent from the record, including the May 2017 examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). As such, the May 2017 examination is inadequate and the Veteran must be provided a Gulf War Protocol examination to determine if his claimed conditions constitute a MUCMI. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 2. Entitlement to service connection for a stomach condition and nodules, to include as due to a MUCMI, is remanded. The Veteran seeks service connection for a stomach condition and nodules as either directly related to service, as secondary to his thyroid condition, or as part of a disability pattern consistent with a MUCMI. First, the Veteran must be provided a VA examination on whether his stomach condition is directly related to service, as the record includes medical evidence received in May 2017 indicating his stomach condition may be directly related to chemical exposures in the Persian Gulf, yet there is insufficient medical evidence on the record to decide the claim. Moreover, the Veteran testified at his November 2021 hearing that he began having problems swallowing in the 1990s. The Veteran has not been provided a VA examination on whether his stomach condition is directly related to service. As such, a remand is warranted to provide the Veteran a VA examination investigating this link. McLendon, 20 Vet. App. 79 (2006). Second, as noted in relation to the Veteran's claim for a thyroid condition, the May 2017 Gulf War examination report inadequately addressed whether the Veteran's stomach condition is part of a disability pattern consistent with a MUCMI, stating the condition has a clear and specific etiology and diagnosis without evidence an etiology has been provided for the Veteran's stomach condition or consideration of the Veteran's other claimed conditions. As such, the Veteran must be provided a Gulf War Protocol examination to determine if his claimed conditions constitute a MUCMI. Barr, 21 Vet. App. at 311-12. Lastly, the Veteran has contended his stomach condition could also be due to his thyroid condition. The Veteran should be provided an examination investigating whether his stomach condition is proximately due to or aggravated by his thyroid condition. 3. Entitlement to service connection for a gallbladder condition, to include cholelithiasis status post cholecystectomy, to include as due to a MUCMI, is remanded. The Veteran seeks service connection for a gallbladder condition as either directly related to service, as secondary to his thyroid condition, or as part of a disability pattern consistent with a MUCMI. The Veteran was provided a VA examination on the etiology of his gallbladder condition in July 2017. The examiner found the Veteran to be diagnosed with a gallbladder condition, cholelithiasis; however, opined the condition was less likely than not related to the Veteran's service in the Persian Gulf. The examiner rationalized that the presence of gallstones (cholelithiasis) is common, occurring in approximately six percent of the U.S. male population, and that there is no medical evidence linking environmental exposures in Southwest Asia to the increased incidence of gallstones. However, the Veteran explained at his November 2021 hearing that his gallstones manifested with symptoms of indigestion in the 1990s, shortly after service, which he regulated with a liquid diet, and VA treatment records received in May 2017 indicate the Veteran has experienced gastrointestinal symptoms related to his chemical exposures while in the Persian Gulf. The Veteran must be provided a VA examination that considers these pieces of evidence. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (noting that the central issue in determining the probative value of a medical opinion is whether the examiner was informed of the relevant facts). Regarding the Veteran's gallbladder symptoms' relation to a disability pattern consistent with a MUCMI, the July 2017 examiner, like the May 2017 examiner, simply stated the Veteran's gallbladder condition "is a disease with a clear and specific etiology and diagnosis and is common in the general population" without identifying the condition's etiology. The July 2017 also did not consider his disability pattern as a whole, only his gallbladder condition. As such, the Veteran must be provided a Gulf War Protocol examination to determine if his claimed conditions constitute a MUCMI. Barr, 21 Vet. App. at 311-12. Lastly, the Veteran has contended his gallbladder condition could also be due to his thyroid condition. The Veteran should be provided an examination investigating whether his gallbladder condition is proximately due to or aggravated by his thyroid condition. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide information for his private providers and to complete the appropriate authorization and release forms for VA to attempt to obtain his records. All attempts to obtain records must be documented in the claims file. 2. Schedule the Veteran for a VA examination with an examiner with sufficient expertise to address the nature and etiology of the Veteran's thyroid condition, stomach condition, and gallbladder condition. The claims file and a copy of this remand must be made available to and reviewed by the examiner. Any indicated studies should be performed and reported in detail. The examiner must consider the Veteran's Persian Gulf exposures as recorded at his April 14, 2017 general Persian Gulf Exam and Depleted Uranium Worksheet, the contemporaneous April 14, 2017 indication the Veteran's gastrointestinal symptoms may be related to Persian Gulf exposures, and the Veteran's descriptions of symptoms as found in his two December 2017 Statements in Support of Claim and the November 2021 hearing transcript. Following a review of the relevant records and lay statements, the examiner is asked to opine on: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's thyroid condition is etiologically related to his military service, to include exposure to chemicals in the Persian Gulf. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's stomach condition is etiologically related to the Veteran's military service, to include exposure to chemicals in the Persian Gulf. (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gallbladder condition is etiologically related to the Veteran's military service, to include exposure to chemicals in the Persian Gulf. (d) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's stomach condition is (1) proximately due to or (2) aggravated by his thyroid condition. (e) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gallbladder condition is (1) proximately due to or (2) aggravated by his thyroid condition. The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner is advised that aggravation does not require that there be "permanent" worsening of the nonservice connected disability. As to a disability pattern consistent with a medically unexplained chronic multisymptom illness (MUCMI), please address the following: (f) State whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (g) Is the Veteran's disability pattern consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multisymptom illness (MUCMI) of unknown etiology or pathophysiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (4) a disease with a clear and specific etiology and diagnosis. An illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. It is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. The determination of whether a condition is a MUCMI must be based on an individual's circumstances rather than the illness as it is understood in the general public. Therefore, in answering this question, the rationale must be specific to this Veteran and address BOTH the etiology and the pathophysiology of this Veteran's illness. (h) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is (1) and undiagnosed illness, (2) a MUCMI, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. For any symptomatology that is due to an undiagnosed illness or MUCMI, the examiner should comment on the severity of such symptomatology and report signs and symptoms necessary for evaluating the illness under the rating criteria. In answering all questions, the examiner must articulate the reasons underpinning their conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support the opinion, and (2) explain how that evidence justifies the opinion. (Continued on the next page) 3. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.