Citation Nr: 21071807 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-31 265 DATE: December 1, 2021 REMANDED Entitlement to service connection for fibromyalgia (claimed as muscle pain and joint pain), including as due to an undiagnosed illness and/or medically unexplained chronic multi-symptom illness (MUCMI), and/or as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for chronic fatigue syndrome, including as due to an undiagnosed illness and/or MUCMI, and/or as secondary to service-connected PTSD is remanded. Entitlement to service connection for obstructive sleep apnea, including as due to an undiagnosed illness and/or MUCMI, and/or as secondary to service-connected PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1987 to September 1988 and from December 1990 to May 1991, to include participation in Operation Desert Shield/Operation Desert Storm. Evidence associated with the claims file also indicates that the Veteran served in the Reserve. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board previously remanded this matter in October 2018 and May 2021. As a preliminary matter, the Board notes that evidence associated with the claims file indicates that the Veteran served in the Reserve outside his periods of active duty service. See September 2011 VA Form 21-4138 (statement by the Veteran's fellow servicemember, K.J.J., reflecting that she served alongside the Veteran in the Reserve). Although there are service medical records and service personnel records associated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA. The Veteran's Reserve service medical records, if outstanding, should also be obtained. Furthermore, as the Board acknowledges the possibility that the Veteran's Reserve medical records could indicate treatment for and/or complaints of symptoms related to the disabilities on appeal, the Board finds that medical opinions as to whether the Veteran's fibromyalgia, chronic fatigue syndrome, and obstructive sleep apnea are causally related to his ACDUTRA should be obtained on remand. Additionally, the Board notes that, in his June 2016 VA Form 9, the Veteran asserted that all of his medical conditions are secondary to his service-connected PTSD. Even though the Board acknowledges receipt of opinions of record regarding a causal relationship between obstructive sleep apnea and PTSD, no such opinions have been obtained evaluating this theory of entitlement for the Veteran's fibromyalgia or chronic fatigue syndrome. Thus, the Board requests that the RO obtain new opinions on remand regarding whether the Veteran's fibromyalgia and/or chronic fatigue syndrome is/are causally linked to his service-connected PTSD. 1. Fibromyalgia As previously noted in the Board's May 2021 Decision, the November 2019 VA examiner found that the Veteran had received treatment by a private medical provider for his fibromyalgia. Consequently, the November 2019 examiner could not review all pertinent relevant treatment of medical records and therefore the Board finds the November 2019 opinion inadequate to determine the nature and etiology of the Veteran's fibromyalgia. In its May 2021 decision, the Board requested that the RO request from the Veteran information so that it could obtain his private records. However, the RO, in its Subsequent Development Letter, requested information from the Veteran regarding his private providers for a stomach condition, a disorder which is not on appeal before the Board. See May 2021 Subsequent Development Letter. The Board recognizes how this could confuse the Veteran so as to not respond to said Subsequent Development Letter. Accordingly, the Board requests that the RO attempt again to obtain the Veteran's private medical records related to his fibromyalgia. After obtaining the Veteran's private medical records, the Board requests a new opinion to determine the nature and etiology of the Veteran's fibromyalgia. 2. Chronic Fatigue Syndrome The Board acknowledges receipt of the November 2019 medical opinion concluding that the Veteran's chronic fatigue syndrome was less likely than not due to his active duty service; however, as noted above, the Veteran has asserted that his chronic fatigue syndrome is etiologically related to his service-connected PTSD and the Board acknowledges the possibility that the Veteran's chronic fatigue syndrome could be related to a period of ACDUTRA. Further, the November 2019 examiner did not determine the most likely cause of the Veteran's chronic condition. Thus, the Board requests an addendum opinion to determine the nature and etiology of the Veteran's chronic fatigue syndrome on remand. 3. Obstructive Sleep Apnea As noted above, the Board has received various medical opinions regarding the nature and etiology of the Veteran's obstructive sleep apnea, the most recent being from August 2021. However, the Board finds the August 2021 opinion to be inadequate, as the examiner only cited to one study mentioned in the Veteran's representative's August 2020 Appellate Brief. There is another study mentioned in the August 2020 Appellate Brief that the August 2021 examiner did not consider or address. Therefore, as the examiner did not review all pertinent, relevant evidence associated with the claims file, the Board finds the August 2021 opinion to be incomplete. Furthermore, when addressing aggravation, the examiner discussed the Veteran's difficulties with treatment for obstructive sleep apnea, but not as to why his service-connected PTSD could not aggravate his condition. Therefore, the Board finds the examiner's aggravation rationale to be inadequate and requests an addendum opinion as to the nature and etiology of the Veteran's obstructive sleep apnea. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of Reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran's Reserve service should also be obtained and associated with the claims file. 2. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical records related to his fibromyalgia, chronic fatigue syndrome, and obstructive sleep apnea. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. After completing the foregoing development, forward the claims file, including a copy of this remand, to an appropriate clinician who has not previously provided an opinion in this matter to determine the nature and etiology of the Veteran's fibromyalgia. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's fibromyalgia manifested during, or is the result of, his active duty service and/or ACDUTRA, including as a result of exposure to burning oil wells, bromide pills, vaccinations, and depleted uranium along with other environmental hazards during Persian Gulf War service. If there is no diagnosed disability that the Veteran's fibromyalgia symptoms can be attributed to, the examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI related to the Veteran's Persian Gulf War service. The examiner is advised that an illness is a MUCMI when either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multi-symptom illness is not a MUCMI where both the etiology and pathophysiology of the illness are partially understood. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's fibromyalgia was either (i) caused or (ii) aggravated by his service-connected PTSD. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's service personnel records; and (iii) The competent lay statements of record, including from the Veteran, the Veteran's wife, and K.J.J., indicating the Veteran's first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's fibromyalgia and/or fibromyalgia symptoms is/are less likely than not due to active duty service and/or ACDUTRA, and/or is/are less likely than not caused and/or aggravated by his service-connected PTSD, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should explain the specific etiology of the Veteran's fibromyalgia. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Forward the claims file, including a copy of this remand, to an appropriate clinician who has not previously provided an opinion in this matter to determine the nature and etiology of the Veteran's chronic fatigue syndrome. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's chronic fatigue syndrome manifested during, or is the result of, his active duty service and/or ACDUTRA, including as a result of exposure to burning oil wells, bromide pills, vaccinations, and depleted uranium along with other environmental hazards during Persian Gulf War service. If there is no diagnosed disability that the Veteran's chronic fatigue symptoms can be attributed to, the examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI related to the Veteran's Persian Gulf War service. The examiner is advised that an illness is a MUCMI when either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multi-symptom illness is not a MUCMI where both the etiology and pathophysiology of the illness are partially understood. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's chronic fatigue syndrome was either (i) caused or (ii) aggravated by his service-connected PTSD. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's service personnel records; and (iii) The competent lay statements of record, including from the Veteran, the Veteran's wife, and K.J.J., indicating the Veteran's first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's chronic fatigue syndrome and/or chronic fatigue symptoms is/are less likely than not due to active duty service and/or ACDUTRA, and/or is/are less likely than not caused and/or aggravated by his service-connected PTSD, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should explain the specific etiology of the Veteran's chronic fatigue syndrome. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 5. Forward the claims file, including a copy of this remand, to an appropriate clinician who has not previously provided an opinion in this matter to determine the nature and etiology of the Veteran's obstructive sleep apnea. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's obstructive sleep apnea manifested during, or is the result of, his active duty service and/or ACDUTRA, including as a result of exposure to burning oil wells, bromide pills, vaccinations, and depleted uranium along with other environmental hazards during Persian Gulf War service. If there is no diagnosed disability that the Veteran's sleep symptoms can be attributed to, the examiner should opine as to whether it is at least as likely as not (probability of about 50 percent) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI related to the Veteran's Persian Gulf War service. The examiner is advised that an illness is a MUCMI when either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multi-symptom illness is not a MUCMI where both the etiology and pathophysiology of the illness are partially understood. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's obstructive sleep apnea was either (i) caused or (ii) aggravated by his service-connected PTSD. NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's service personnel records; (iii) The competent lay statements of record, including from the Veteran, the Veteran's wife, and K.J.J., indicating the Veteran's first-hand in-service experiences and the onset and continuity of his symptomatology; (iv) Sharafkhaneh, A.; Giray, N.; Richardson, P. et al., Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort. SLEEP 2005; 28(11): 1405-1411 (as cited to in the August 2020 Appellate Brief); and (v) Madigan Army Medical Center, Sleep Disorders and associated Medical Co-Morbidities (2019) (as cited to in the August 2020 Appellate Brief). If the clinician determines that the Veteran's obstructive sleep apnea and/or obstructive sleep apnea symptoms is/are less likely than not due to active duty service and/or ACDUTRA, and/or is/are less likely than not caused and/or aggravated by his service-connected PTSD, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should explain the specific etiology of the Veteran's obstructive sleep apnea. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.