Citation Nr: 21007273 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 11-12 675 DATE: February 9, 2021 REMANDED Entitlement to service connection for chronic fatigue, severe muscle and joint pains, and neurological symptoms, claimed as due to an undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for a bilateral wrist disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to August 1999, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Board remanded the issues on appeal to afford the Veteran his requested Board hearing, which was held in December 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2017 and May 2018, the Board remanded the matter for additional development and it now returns for further appellate review. The Board notes that, in October 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as his Board hearing was previously held in December 2016 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019). 1. Entitlement to service connection for chronic fatigue, severe muscle and joint pains, and neurological symptoms, claimed as due to an undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117. As noted in the April 2017 remand, the Veteran contends that he has chronic fatigue, muscle and joint pains, and neurological symptoms due to an undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117. At such time, the matter was remanded in order to afford him a VA examination so as to determine the nature and etiology of such reported symptoms. In June 2017, a VA examiner reviewed the record and opined that the Veteran’s reported symptoms were related to diagnoses of Parkinson’s disease and/or stiff man syndrome, which are conditions with a clear and specific diagnosis and etiology, that were unrelated to his military service, to include his alleged exposure to chemicals coincident with his service in Southwest Asia. However, as the Veteran was not examined as directed by the April 2017 remand and the examiner relied upon a lack of medical evidence in the Veteran’s service treatment records (STRs) to render her unfavorable opinion when such reflected complaints of relevant symptoms in April 1982, April 1990, and March 1999, the Board again remanded the case in May 2018 for compliance with the prior remand orders. Pursuant to the May 2018 remand, the Veteran was afforded a VA examination in March 2019. At such time, the examiner found that the Veteran did not have a diagnosis of chronic fatigue syndrome and noted that his current fatigue was most likely due to his hypothyroidism and sleep apnea. She further found that his joint pain was most likely due to his osteoarthritis. However, she did not provide an opinion as to whether such diagnosed disorders were related to his military service. She also did not state whether the Veteran’s other symptoms of tremors, muscle weakness, dysphagia, and abdominal pains were attributed to a known clinical diagnosis, to include Parkinson’s disease and/or stiff man syndrome, as requested in the prior remand. Thus, the Board finds that another remand is necessary to obtain an addendum opinion that addresses such concerns. The Board further observes, that subsequent to the most recent remand, the Veteran has advanced new theories of entitlement. Specifically, he now alleges that his claimed disorder is related to exposure to toxins, to include Agent Orange, coincident with his service at Fort McClellan, Alabama, and/or chemicals coincident with the duties related to his military occupational specialty of chemical operations. In this regard, in December 2019, private opinions were received indicating that the Veteran had a diagnosis of Hashimoto’s disease with thyroid dysfunction, and such disorder, as well as his Parkinson’s disease, were more likely than not a result of his exposure to toxins during his military service. However, the toxins were not specified and the physicians did not provide a rationale for their opinions. Further, in May 2020, it was documented that the Department of Defense had not identified Fort McClellan as a location where Agent Orange was used, tested, or stored. There was also no evidence associating Agent Orange with the U.S. Army Chemical School or Chemical-Biological-Radiological (CBR) Agency located at Fort McClellan. It was also noted that the use of Agent Orange by the U.S. military was terminated in early 1971, which was 10 years before the Veteran’s claimed exposure in the 1980’s and 1990’s, and that all evidence showed that any herbicide use the Veteran observed, or was associated with, was the commercial variety, not Agent Orange. Nonetheless, a VA website regarding the presence of various chemicals and toxins at Fort McClellan (https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp) indicates that some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/ Radiological Agency, Army Military Police School and Women’s Army Corps, among others, may have been exposed to one or more of several hazardous materials, likely at low levels, during their service at Fort McClellan. Potential exposures could have included, but are not limited to, the following: • Radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base. • Chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base. • Airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town. The website further advises that, although exposures to high levels of these compounds have been shown to cause a variety of adverse health effects in humans and laboratory animals, there is no evidence of exposures of this magnitude having occurred at Fort McClellan. It was also noted that, from 1929 to 1971, an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston. PCBs from the plant entered into the environment, and the surrounding community was exposed. Since the 1990s, several investigations have been conducted to characterize the exposure of Anniston residents to PCBs from the Monsanto plant. In 2015, the Agency for Toxic Substances and Disease Registry (ATSDR) published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility.” However, VA’s Compensation Service, National Archives and records Administration, and Armed Forces Pest Management Board determined that herbicide agents, to include Agent Orange, were not present at Fort McClellan. Thus, in obtaining the foregoing opinion on remand, the examiner should also consider whether the Veteran’s claimed disorder is related to his in-service exposure to toxins at Fort McClellan and/or chemicals coincident with the duties related to his military occupational specialty of chemical operations. 2. Entitlement to service connection for a bilateral wrist disorder. In the May 2018 remand, the Board observed that, while a June 2017 VA examiner found that the Veteran’s bilateral wrist disorder was attributed to a known clinical diagnosis of carpal tunnel syndrome (CTS) with a clear and specific diagnosis and etiology, she opined that such was less likely not related to his military service, to include his in-service car accident, as such is caused by repetitive motion and his STRs were negative for any complaints or symptoms referable to such disorder. However, as she relied solely on the fact that the Veteran’s STRs were negative for such disorder, the Board remanded the case to obtain an addendum opinion. Thereafter, an addendum opinion was obtained in March 2019. At such time, the examiner opined that the Veteran’s bilateral wrist disorder, diagnosed as CTS, was less likely as not related to the Veteran’s military service, to include his in-service car accident, and must be due to some other etiology outside of military. However, her rationale was again based solely on the fact that his STRs were negative for complaints or symptoms associated with CTS. Thus, the Board finds that another remand is warranted to obtain an addendum opinion that addresses such matter. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the June 2017/March 2019 examiner in order to obtain an opinion to determine the current nature and etiology of any disability associated with his chronic fatigue, muscle and joint pains, neurological symptoms, dysphagia, and abdominal pains. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) The examiner should specifically state whether the Veteran’s symptoms of (1) chronic fatigue, (2) muscle and joint pains, (3) tremors, (4) muscle weakness, (5) dysphagia, and (6) abdominal pains are attributed to a known clinical diagnosis, to include Parkinson’s disease, stiff man syndrome, and/or Hashimoto’s disease with thyroid dysfunction. (B) If a disorder associated with the Veteran’s symptoms of chronic fatigue, muscle and joint pains, tremors, muscle weakness, dysphagia, and abdominal pains is established, the examiner should render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is related to the Veteran’s military service, to include his in-service car accident; the relevant complaints documented in April 1982 (swollen or painful joints, cramps in the legs, and paralysis), April 1990 (discomfort above the waist that started on exertion), and March 1999 STRs (swollen or painful joints, cramps in the legs, shortness of breath, and arthritis, rheumatism, or bursitis, with a clinical evaluation showing an abnormal neurologic examination); his exposure to chemicals coincident with the duties related to his military occupational specialty of chemical operations; and/or his alleged exposure to chemicals in Southwest Asia during the Persian Gulf War; and/or his exposure to toxins detailed above while stationed at Fort McClellan, Alabama. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any of the currently diagnosed disorders, to include Parkinson’s disease, stiff man syndrome, and/or Hashimoto’s disease with thyroid dysfunction that are related to the aforementioned symptoms. (C) If any symptoms of chronic fatigue, muscle and joint pains, tremors, muscle weakness, dysphagia, and abdominal pains have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) The examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s symptoms of chronic fatigue, muscle and joint pains, tremors, muscle weakness, dysphagia, and abdominal pains represent a “medically unexplained chronic multi-symptom illness.” Such is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. A rationale for any opinion offered should be provided. 3. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the June 2017/March 2019 examiner in order to obtain an opinion addressing the etiology of the Veteran’s bilateral wrist disorder, diagnosed as CTS. Following a full review of the record, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral wrist disorder, diagnosed as bilateral CTS, is related to the Veteran’s military service, to include his in-service car accident. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to a diagnosis of CTS or complaints thereof. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.