Citation Nr: 21069926 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-48 701 DATE: November 22, 2021 REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for a chronic disability manifested by joint pain is remanded. Entitlement to service connection for chronic headaches is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a skin disability is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from September 1998 to September 2001 to include service in Southwest Asia during the Persian Gulf war. The Veteran also had a period of service with a Reserve Component. In May 2019, the Veteran had a hearing before the undersigned. A transcript of that hearing has been associated with the claims file. In October 2019, the Board of Veterans' Appeal (Board) remanded the appeal. In a December 2020 decision, the Board granted service connection for sleep apnea and denied service connection for fibromyalgia, CFS, joint pain, chronic headaches, GERD, and for a skin disability. The Veteran appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the December 2020 Board decision to the extent that it denied service connection for fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability. The Board notes the Veteran had been in receipt of a total disability rating based on individual unemployability (TDIU) since May 2019. Entitlement to service connection for sleep apnea and denied service connection for fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability are remanded. The JMPR vacated and remanded the December 2020 Board decision to the extent that it denied service connection for fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability because, in substance, the following reasons: i. there were no direct service connection opinions as to the Veteran's claims of service connection for headaches, a skin disability, and GERD; ii. the Board failed to address why the Veteran should not be entitled to a direct service connection opinion for his CFS and joint pain; iii. the Board adjudicated the appeal without a medical opinion addressing the question of whether a direct nexus exists between the Veteran's fibromyalgia, CFS, joint pain, chronic headaches, GERD, and skin disability and his military service including his anthrax vaccine and his fall from a tank; and iv. the May 2016 Gulf War VA examination was not adequate because the examiner did not address appellant's statements that he had had stomach trouble, including a burning sensation that goes to his throat since 2000, and that he was not overweigh when he was in the military. Given, the above, the Board finds that a Remand is required to provide the Veteran with a VA examination to obtain adequate etiology opinions for the claimed disorders in order to address the above concerns raised in the JMPR. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). When obtaining the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held that in appeals, like the current appeal, the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans served in the Persian Gulf since August 2, 1990. Similarly, when again adjudicating the appeal the RO should be mindful of the fact that the JMPR specifically directed VA to consider the following evidence: i. on his July 2001 service separation examination the Veteran discussed having migraines, fatigue and joint pain as well as pain in his muscles and joints since receiving his anthrax vaccination; ii. on his July 2001 service separation examination the Veteran described having constant migraine headaches since suffering a fall from a tank in service as well as fatigue on a day to day basis; iii. the appellant has stated that his skin rashes began shortly after receiving his anthrax shot and his stomach trouble began when he was in the military; and iv. the Veteran has submitted several letters from family and fellow veterans with whom he served indicating that he has continued to suffer from fatigue, joint pain, headaches, skin rashes, and gastrointestinal problems since his service. While the appeal is in Remand status, any outstanding VA and private treatment records should also be obtained and associate with the record to include all records on file with the Social Security Administration's (SSA) recent grant of the Veteran's disability benefits. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. Associate with the claims file all records on file with the SSA's recent grant of the Veteran's disability benefits. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 4. To comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claims of service connection for fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability to include as due to undiagnosed illness under 38C.F.R. § 3.317. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for the disabilities claimed as fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability. If the Veteran does not meet the criteria for a diagnosis of fibromyalgia, CFS, joint pain, chronic headaches, GERD, and/or a skin disability, the examiner must say so. b. As the diagnosed disabilities, including fibromyalgia, CFS, joint pain, chronic headaches, GERD, and a skin disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during including due to the following as required by the JMPR: (i) his presumptive toxin exposure because of his service in Iraq during the Persian Gulf War,(ii) his anthrax vaccination, and/or (iii) the fall from a tank. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the claimed disorders manifested in the first post-service year. d. If a nexus to his service cannot be established for the disabilities claimed as fibromyalgia, CFS, joint pain, chronic headaches, GERD, and/or a skin disability, please provide an opinion as to whether the disability pattern is consistent with any of the following: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. e. If, after reviewing the claims file, you determine that the Veteran's disability patterns are consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. To comply with the JMPR, in providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records to include, among other things, the following: i. the July 2001 service separation examination on which the Veteran discussed having migraines, fatigue and joint pain, as well as pain in his muscles and joints since receiving his anthrax vaccination; and ii. the July 2001 service separation examination on which the Veteran described having constant migraine headaches since suffering a fall from a tank in service as well as fatigue on a day to day bases. To comply with the JMPR, in providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran and others regarding observable adverse symptomatology to include, among other things, the following: i. as to GERD, the Veteran's statement that he had had stomach trouble, including a burning sensation that goes to his throat since 2000; ii. as to GERD, the appellant's claim that he was not overweigh when he was in the military; iii. as to GERD, the Veteran's statement that his stomach trouble began when he was in the military; iv. as to a skin disability, the appellant's statements that his skin rashes began shortly after receiving his anthrax shot; and v. as to all the claimed disorders, the several letters from family and fellow veterans with whom the appellant served indicating that he has continued to suffer from fatigue, joint pain, headaches, skin rashes, and gastrointestinal problems since his service. To comply with the JMPR, in providing answers to the above questions the examiner should specifically consider, as to fibromyalgia, CFS, joint pain, chronic headaches, GERD, and skin disability, the Veteran's claims that they are due to his in-service anthrax vaccine and/or a fall from a tank. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.