Citation Nr: 21074615 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-43 813 DATE: December 15, 2021 REMANDED Entitlement to an initial compensable disability evaluation for chronic fatigue with dizziness due to medically unexplained multi-symptom illness for the rating period prior to August 18, 2015 is remanded. Entitlement to an increased disability evaluation for headaches due to medically unexplained multi-symptom illness, initially rated as 10 percent disabling, is remanded. Entitlement to an effective date prior to December 18, 1997 for the grant of service connection for chronic fatigue with dizziness due to medically unexplained multi-symptom illness is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1990 to March 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO). By an August 2018 decision, the Board of Veterans' Appeals (Board), in pertinent part, dismissed a claim for an effective date earlier than December 18, 1997 for service connection for chronic fatigue; denied an initial compensable rating for chronic fatigue from December 18, 1997 and in excess of 60 percent from August 18, 2015; and denied an initial rating in excess of 10 percent for migraine headaches. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Court by a July 2019 Order granted the parties' Joint Motion for Partial Remand (Joint Motion) which vacated those parts of the Board's August 2018 decision which dismissed the earlier effective date claim for service connection for chronic fatigue, denied an initial compensable rating for chronic fatigue from December 18, 1997 and prior to August 18, 2015, and denied an initial rating in excess of 10 percent for headaches. The Joint Motion also found that the Board had committed error by not recognizing a claim for TDIU based on chronic fatigue as raised by the record. The Joint Motion left undisturbed the Board's denial of a higher rating than the 60 percent assigned for chronic fatigue from August 18, 2015. The issues on appeal, as listed hereinabove as the subject of remand, are thus as so described. The claim was remanded by the Board for further development in February 2020. A supplemental statement of the case was most recently issued in July 2021. 1. Entitlement to an initial compensable disability evaluation for chronic fatigue with dizziness due to medically unexplained multi-symptom illness for the rating period prior to August 18, 2015 is remanded. 2. Entitlement to an increased disability evaluation for headaches due to medically unexplained multi-symptom illness, initially rated as 10 percent disabling, is remanded. 3. Entitlement to an effective date prior to December 18, 1997 for the grant of service connection for chronic fatigue with dizziness due to medically unexplained multi-symptom illness is remanded. As discussed by the Board in the February 2020 remand, the Joint Motion found that the Board in its August 2018 decision had erred in not discussing the Veteran's statements over the claim period supporting impairment of functioning due to his chronic fatigue; had erred in not addressing whether a claim was raised of entitlement to TDIU based on chronic fatigue; had erred in not providing adequate reasons and bases for discounting the Veteran's and his spouse's statements supporting the presence of prostrating attacks of migraine or otherwise significant impairment due to headaches; and had erred in dismissing the earlier effective date claim for service connection for chronic fatigue when this was not properly withdrawn and dismissing it served to prejudice the Veteran, based on the possibility of non-finality of a prior, November 18, 1997 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for chronic fatigue. In the February 2020 remand, the Board noted that the Veteran was not service connected for chronic fatigue syndrome, but rather was service connected for "chronic fatigue with dizziness due to medically unexplained multi-symptom illness" by a January 2016 decision of the Appeals Management Center (AMC), when a non-compensable rating was assigned for the condition effective from December 18, 1997. As acknowledged in the February 2020 remand, the AMC appears to have assigned its characterization specifically to avoid the categorization of chronic fatigue syndrome because in an April 2012 examination a VA examiner explicitly and quite thoroughly ruled out the presence of chronic fatigue syndrome. The Board accordingly corrected the characterization of the disability as chronic fatigue with dizziness due to medically unexplained multi-symptom illness. The Board noted that, although the AMC granted service connection by a January 2016 decision for "chronic fatigue with dizziness as due to a medically unexplained multi-symptom illness" effective from December 18, 1997, the RO by its November 1997 decision had denied service connection for "chronic fatigue with flu like symptoms, chronic infections, chills, sore throat, to include due to undiagnosed illness." The Board pointed out that these symptom sets do not align, and that the Veteran was separately service connected for diarrhea due to undiagnosed illness by this November 1997 RO decision, whereas the Joint Motion mentions diarrhea as part of the symptoms of the Veteran's chronic fatigue which it found that the Board did not adequately consider when denying a compensable rating for chronic fatigue prior to August 18, 2015. Nevertheless, rating the chronic fatigue with dizziness due to medically unexplained multi-symptom illness including based on diarrhea and also separately rating diarrhea would constitute impermissible pyramiding, or assigning multiple ratings based on the same disability. 38 C.F.R. § 4.14 (2020). As pointed out in the February 2020 remand, the appealed issues are intertwined in that the Board is asked to rely, per the instructions in the Joint Motion, on the lay statements of the Veteran. However, these lay statements lack credibility. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this regard, the February 2020 remand noted that, at an April 2001 VA psychiatric examination, the examiner documented, upon careful review of the Veteran's record, the Veteran's markedly different and contradictory statements of history, symptoms, past diagnoses and past treatments, and even past in-service experiences, including having a history and symptoms of depression with suicidality versus having no history or symptoms of any mental difficulties, having witnessed or experienced bombings in Kuwait versus not experiencing these, hearing voices over many years versus not hearing voices, presenting with psychotic or depressive symptoms versus presenting with no psychiatric symptoms, having a diagnosed seizure disorder with prescribed medication for a seizure disorder versus not being so diagnosed, etcetera. The Board pointed out that the VA examiner concluded, "[o]n the basis of the differences of narration and recorded diagnoses, this examiner considers the Veteran's statements today as lacking in reliability for rating purposes." The Veteran's markedly contradictory statements of symptoms, history, diagnoses, experiences, etcetera was consistent with findings of some treating VA mental health professionals, such as one in January 2000 who assessed that the Veteran was "easily tearful and very manipulative." Other treatment records note the likelihood that the Veteran is malingering (identified as a differential diagnosis). The Board, in the February 2020 remand, found that the record establishes that the Veteran is unreliable in his self-reporting of symptoms and history of illness and treatment. Over the claim period, the Veteran submitted statements variously from his parents and a girlfriend and an acquaintance to support the presence of some symptoms. The Board pointed out that, since the record reflects that the Veteran has been monetarily dependent and dependent for housing on his parents, sibling, cousin, and likely others over the course of his adult life, with the Veteran indicating no record of substantially gainful employment following military service, such persons upon whom he has been dependent would be substantially motivated to help him secure some independence through VA benefits, and hence would be highly motivated to accept his self-reports of symptoms. In short, the Board found that the record presents reliable lay evidence supporting the Veteran's self-reported symptoms of illness, such as his reports of diarrhea, dizziness, weakness, fatigue, excess sleep, and migraine headaches; as noted, the April 2012 VA the examiner found that the Veteran met none of the diagnostic criteria for chronic fatigue syndrome. As noted in the February 2020 remand, the Board must address a Joint Motion for Remand which vacated the Board's past decision in August 2018 based on the Board's failure to adequately consider the Veteran's past statements in support of his claims, despite the fact that the Veteran's credibility is at issue; the Veteran's self-reports as to the presence and/or frequency of the Veteran's diarrhea, the presence and/or frequency of migraine headaches, the presence and/or frequency of fatigue or weakness, and the presence and/or frequency of dizziness cannot be solely relied upon. The February 2020 remand also stated that the retrospective examination was necessary to address the nature and severity and impact on work or work-like functioning over claim periods of both the Veteran's service-connected chronic fatigue with dizziness due to medically unexplained multi-symptom illness, and his service-connected headaches due to medically unexplained illness. Therefore, in the February 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a retrospective VA examination to address the nature and severity and impact on work or work-like functioning over claim periods of both the Veteran's service-connected chronic fatigue with dizziness due to medically unexplained multi-symptom illness, and his service-connected headaches due to medically unexplained illness. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). The examiner was requested to rely on objective findings, such as physical examinations, laboratory tests, and medical scans in providing a professional medical review of the Veteran's medical history, so that a determination can be made as to whether there are objective findings that support the Veteran's claims. The February 2020 remand specifically indicated that, if a VA examination could not be obtained, a records-based examination should be undertaken to seek to ascertain the extent of disability over the claim period based on independently reliable and objective findings, such as physical examinations, laboratory tests, and medical scans. In this regard, the Board notes that the AOJ attempted to schedule the Veteran for a VA examination, and made efforts to have the Veteran examined despite his incarceration. However, the Veteran, as he previously did in May 2018, refused to appear for a VA examination. The Veteran indicated to the AOJ in May 2021, July 2021, and August 2021 statements that he is unwilling to appear for a VA examination, and that he wants his claims decided based on the evidence of record and his prison medical treatment records. There is nothing in the Veteran's electronic claims file which demonstrates that the AOJ attempted to obtain the requested VA medical opinions following the Veteran's refusal failure to appear as scheduled for his VA examinations. Therefore, in order to ensure compliance with the directive in the February 2020 Board remand, the Veteran's claims must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). See also Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate). The Board notes that attempts to obtain the Veteran's prison treatment records were unsuccessful, as the Veteran failed to provide adequate information for VA to obtain such records. The Veteran was notified of the deficiencies on his authorization form on multiple occasions and thus far, has not taken appropriate corrective action. The Board reminds the Veteran that he has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). Nevertheless, the Board will request that the AOJ make another attempt to get these records so as to assist the VA examiners in providing their opinions. 4. Entitlement to TDIU is remanded. The Joint Motion, as previously discussed, found that the Veteran's assertions as to the severity of his disabilities amounted to an informal claim for TDIU. The Joint Motion found that the Board in its August 2018 decision had erred in not discussing the Veteran's statements over the claim period supporting impairment of functioning due to his chronic fatigue and that the Board erred in not addressing whether a claim was raised of entitlement to TDIU based on chronic fatigue. A TDIU claim is part and parcel of an increased rating claim being referred to the RO, and vice versa. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that additional development is required as to the Veteran's claims for increased disability ratings, the Board finds that a decision on the remaining issue of entitlement to TDIU must be deferred to allow the RO the opportunity to evaluate the Veteran's claimed disabilities on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The matters are REMANDED for the following action: 1. Complete any development necessary regarding the claim of entitlement to TDIU pursuant to Rice v. Shinseki. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. This should include any records associated with treatment obtained at the facility where the Veteran was incarcerated. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. After any additional records are associated with the claims file, the AOJ should obtain a retrospective professional medical review of the Veteran's claims file in an effort to address the nature and severity of his chronic fatigue with dizziness due to medically unexplained multi-symptom illness for the rating prior to August 18, 2015. This should be conducted as a records-based examination. The claims file should be reviewed. The examiner is to be advised that historically the Veteran has not been a reliable historian and there have been contradictions in his self-reports. The examiner should review past examination reports, and regarding such unreliability, the examiner should review the April 2001 VA psychiatric examination and the records review conducted in that examination. The examiner should note that the Veteran's service-connected chronic fatigue with dizziness due to medically unexplained multi-symptom illness is distinct from chronic fatigue syndrome, because service connection was established after VA examination in April 2012 explicitly ruled out the presence of chronic fatigue syndrome. (The examiner should review that chronic fatigue syndrome examination to inform this issue.) The examiner is asked to address retrospectively the nature, severity, and impact on work capacity, of the Veteran's chronic fatigue with dizziness due to medically unexplained multi-symptom illness prior to August 18, 2015, including any intervals of greater or lesser severity. The examiner should explain the objective evidence relied upon for any findings or conclusions. If any findings or conclusions are based on subjective statements of the Veteran or his spouse and family members or other laypersons, the examiner should explain what statements were relied upon and how the examiner assessed the reliability of the statements, including whether there was corroboration based on objective evidence. If any disability or symptoms of disability are not supported by objective findings, the examiner should so state. 4. After any additional records are associated with the claims file, the AOJ should obtain a retrospective professional medical review of the Veteran's claims file in an effort to address the current nature and severity of his service-connected headaches due to undiagnosed illness. This should be conducted as a records-based examination. The claims file should be reviewed. The examiner should review past examination reports. The examiner is asked to address retrospectively the nature, severity, and impact on work capacity of the Veteran's headaches due to medically unexplained illness during the appeal period, including any intervals of greater or lesser severity. This should include the frequency and duration of any completely prostrating headaches. The examiner should explain the objective evidence relied upon for any findings or conclusions. If any findings or conclusions are based on subjective statements of the Veteran or his spouse and family members or other laypersons, the examiner should explain what statements were relied upon and how the examiner assessed the reliability of the statements, including whether there was corroboration based on objective evidence. If any disability or symptoms of disability are not supported by objective findings, the examiner should so state. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the remanded claims. If the benefits sought by these claims remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The AOJ should also adjudicate the claim of entitlement to TDIU. The case should then be returned to the Board for further appellate consideration, if in order. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.