Citation Nr: 21070903 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 12-01 293 DATE: November 26, 2021 ORDER Entitlement to service connection for extreme thirst to include as due to an unspecified undiagnosed illness is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. Extreme thirst is as likely as not attributable to service. CONCLUSION OF LAW The criteria for service connection for extreme thirst have been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2001 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. This appeal was most recently before the Board in August 2020. At that time, the Board remanded the claim for additional evidentiary development, specifically a nexus opinion. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the remand directives from August 2020 regarding the claim for service connection. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established for a Persian Gulf veteran who exhibited objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptoms illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense, of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a)(2), (5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Board acknowledges additional presumptive service connection for infectious diseases under 38 C.F.R. § 3.317(c) but finds that there is no lay or medical evidence that the Veteran has ever contracted the diseases listed under this provision. Thus, the applicability of these provisions is not reasonably raised. Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the case at hand, the Veteran is claiming service connection for extreme thirst, secondary to environmental exposures during his time in the Persian Gulf. He alleges that he first began to experience extreme thirst while serving in the Middle East. VA acknowledges that the Veteran served in the Southwest Asia Theater of Operations and is therefore, entitled to presumptions set forth for Persian Gulf Veterans under 38 U.S.C. § 1117. Upon the most recent remand in August 2020, the AOJ obtained two nexus opinions. In a March 2021 nexus opinion, the examiner found that the Veteran's extreme thirst was less likely than not incurred in or caused by service. In so finding, the examiner reasoned that the disability manifested by extreme thirst is a disease with a clear and specific etiology and diagnosis. The examiner also noted that a chronic diagnosis cannot be made due to no chronicity of care in the record. In May 2021, another VA examiner provided a positive nexus opinion, reasoning that the Veteran's disability manifested by extreme thirst is considered an undiagnosed illness. In so finding, the examiner noted that the Veteran's fluid intake was normal, and he did not have diabetes. The Board has been presented with positive and negative evidence as to the relation of the Veteran's extreme thirst to service. While the Board is mindful that the March 2021 VA examiner has opined that the Veteran's extreme thirst is less likely than not incurred in or was caused by service, the Board notes that the examiner's rationale was both internally inconsistent and based on an inaccurate factual premise. The examiner stated that the Veteran's thirst was related to a known diagnosis and etiology, which is not established by the record. Further, the examiner also stated that a chronic diagnosis could not be rendered based on extreme thirst. Based on these inconsistencies, the Board assigns the negative nexus opinion little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran has symptoms of extreme thirst. The Veteran is competent to describe experiencing extreme thirst since service. Notably, his symptoms have not been attributed to an etiology. The term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology. He reports that this symptom began in service, which pursuant to 38 C.F.R. § 3.317(a)(1)(i), suffices to meet the service connection criteria. In light of the above, the Board finds that the Veteran's signs and symptoms are thus medically unexplained and service connection for extreme thirst due to an undiagnosed illness is warranted. Accordingly, the claim is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.