Citation Nr: 21069846 Decision Date: 11/20/21 Archive Date: 11/20/21 DOCKET NO. 08-22 958 DATE: November 20, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities, is granted. REMANDED Service connection for chronic fatigue syndrome (CFS) is remanded. FINDING OF FACT The competent and probative evidence tends to show that the Veteran's GERD is proximately due to or aggravated by her service-connected disabilities. CONCLUSION OF LAW The criteria for secondary service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1985 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in February 2017; a transcript is of record. This matter was subsequently remanded by the Board in October 2019 to comply with a Court Joint Motion for Partial Remand (JMPR). In the April 2019 Order, the Court remanded the issues for further actions in accordance with its instructions. These matters were most recently remanded by the Board in December 2020. They have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives concerning the issue of service connection for GERD. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with an examination. Service connection for CFS is addressed in the Remand below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for GERD. The Veteran asserts service connection for GERD. The Veteran has a current diagnosis of GERD to include as reported in the August 2021 VA examination. As such, the first element of service connection has been met. The Board previously found the August 2020 opinion insufficiently addressed the Veteran's lay contentions, but found it had probative value as to whether GERD was a diagnosed illness with no etiology or whether it was an undiagnosed illness or diagnosed medically unexplained chronic multisystem illness (MUCMI). The 2021 examiner stated that her reports of abuse in service affect her mental state. The Veteran is currently service connected for PTSD. The aggravation of her mental state could affect her gastrointestinal status. The examiner stated her GERD would progress even with medication and counseling due to the aggravation of her mental status. The examiner also provided a negative direct nexus opinion. The Board finds the secondary nexus opinion to have probative value. In this regard, the examiner accounted for the Veteran's service-connected PTSD and how it would further aggravate her GERD. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that her GERD is proximately due or aggravated by her service-connected PTSD. 38 U.S.C. § 5107(b). There is no negative secondary service connection opinion that has probative value. Therefore, the Board finds that service connection for GERD is warranted. 38 C.F.R. § 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for CFS is remanded. The Veteran asserts service connection for CFS. The Veteran's daughter submitted a lay statement describing the Veteran's symptoms. She explained the Veteran has memory problems, vertigo or dizziness, difficulty focusing, severe headaches, muscle and joint aches, lack of motivation, and excessive sleepiness. See 9/21/2021, Buddy/Lay Statement. The Board finds the Veteran's daughter competent and credible to describe the Veteran's symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the statements are competent and credible to describe the symptoms, she is not competent to determine that the symptoms are manifestations of CFS as it requires specialized knowledge of the multiple body systems. The Board previously remanded this claim to obtain an examination performed by a neurologist or rheumatologist to determine whether the Veteran has a diagnosis of CFS and whether any such disability is related to her active service. The 2021 examiner found the Veteran did not have a CFS diagnosis. It was reported that clinical conditions that may produce similar symptoms had not been excluded. It does not appear that all necessary tests and/or studies were performed as previously directed by the Board. Her symptoms attributable to CFS were debilitating fatigue, generalized muscle aches or weakness, and neuropsychologic symptoms. The examiner explained that she did not have a diagnosis because she only met three of the diagnostic criteria and not the required six of the criteria. The examiner did not address the other symptoms the Veteran has to include extreme fatigue, headaches, and sleep disturbances, to include as reported by the Veteran's daughter. Additionally, the examiner also stated the Veteran's fatigue was due to her service-connected acquired psychiatric disorder. However, it is unclear if the examiner had found that the Veteran had CFS or fatigue. Another portion of the report stated she did not have CFS and there were no reports of fatigue. In light of the contradictory nature of the examination and opinion, as well as the Veteran's daughter's' competent and credible lay statements, the Board finds an additional examination is warranted. Also, there is no indication that the examiner was a neurologist or rheumatologist. This matters is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 2. After completing the development requested above, schedule the Veteran for an examination with an appropriate clinician (for example: a neurologist or rheumatologist) for the Veteran's claimed CFS. The examiner must conduct all tests and studies deemed appropriate. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of her symptomatology, and undertake any indicated studies. The examiner is to review the Veteran's records and address the following: Please state whether the symptoms of chronic fatigue disorder 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? Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of her service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? **In answering this question, the examiner should address the medical and lay evidence of record, to include the Veteran's lay statements. The examiner is to address the lay evidence from the Veteran's daughter. She explained the Veteran has memory problems, vertigo or dizziness, difficulty focusing, severe headaches, muscle and joint aches, lack of motivation, and excessive sleepiness. See 9/21/2021, Buddy/Lay Statement.** In providing a comprehensive rationale for any conclusion, please acknowledge and include discussion of her credible lay statements. (b.) If any of the above symptoms are not attributable to a known clinical diagnosis, then is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. For the chronic fatigue syndrome, if this disorder is not shown to be related to service to include directly or as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, then address whether: (c.) Is her fatigue at least as likely as not (probability of approximately 50 percent) a distinctive disorder that is 1) proximately due to OR 2) aggravated by any service-connected disability? Inform the examiner above that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page) If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.