Citation Nr: 21007333 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-28 815A DATE: February 9, 2021 REMANDED Entitlement to service connection for neck injury C-1 to C-4 is remanded. Entitlement to service connection for right foot lis franc injury is remanded. Entitlement to service connection for left foot lis franc injury is remanded. Entitlement to service connection for lower back injury L-5 to S-1 is remanded. Entitlement to service connection for chronic fatigue is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to May 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in June 2020, and the transcript of that hearing is of record. 1. Entitlement to service connection for neck injury C-1 to C-4 is remanded. 2. Entitlement to service connection for lower back injury L-5 to S-1 is remanded. The Veteran testified that he injured his neck and lower back in service. He testified that he has long been receiving treatment for his neck and back conditions from Kaiser Permanente (although unclear as to when), from Denver Health Medical Center from around 2007/2008, and from Dr. Shemesh (Western Orthopaedics). However, the only records in the file are from Western Orthopaedics (Dr. G. Shemesh) from July 2012 to November 2013 (see July 2012 initial patient evaluation, showing that the Veteran first established care with Western Orthopaedics/Dr. Shemesh in July 2012), and from Denver Integrated Imaging from November 2013. Thus, the Board finds it necessary to remand for obtaining any and all outstanding private treatment records. 3. Entitlement to service connection for right foot lis franc injury is remanded. 4. Entitlement to service connection for left foot lis franc injury is remanded. The Veteran testified that he injured his feet when a 55-gallon barrel fell on one of his feet during his basic training, for which he was noted to have a hairline fracture. He further testified that he went home for a convalescent leave for 30 days subsequent to that injury and had ongoing feet issues, to include pain. He had additional Reserves service from 1993 to around 2001; however, it does not appear that the complete service records, to include throughout his alleged Reserves period, have been obtained. Thus, the Board finds it necessary to remand for obtaining the Veteran’s complete service records. 5. Entitlement to service connection for chronic fatigue is remanded. The Veteran testified that he first noticed feeling tired around 2004/2005, for which he sought treatment from Kaiser Permanente (from Dr. Miller and/or Dr. Martinez). While the Veteran underwent a VA examination for his alleged chronic fatigue condition, the examiner at the time concluded that the Veteran does not meet the criteria for the diagnosis of chronic fatigue syndrome, but instead, noted that he might have possible issues with other conditions, to include possible hypothyroidism (the examiner specifically noted the Veteran’s thyroid stimulating hormone as slightly elevated). The Veteran testified that the blood work/work up on thyroid/TSH done with Dr. Martinez and/or Dr. Miller came in negative (everything was within the normal limits), but the VA treatment records from January 2016 also show slightly elevated TSH. Moreover, when asked whether he had been told of any other possible diagnosis for his fatigue symptoms, or whether any potential thyroid issues were related to his military service, the Veteran answered he was not sure as all the testing done at Kaiser Permanente came in negative. However, no treatment records from Kaiser Permanente (other than a medical statement provided by Dr. Miller, submitted by the Veteran) have been obtained. As this appeal is being remanded anyway and as it is unclear as to the exact nature of the Veteran’s current disability and to the extent that this potential etiology has not been explored, the Board finds it necessary to obtain another medical etiology opinion to ascertain the current disability related to his fatigue symptoms and to obtain a medical nexus opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s service treatment records from when he served in the Reserves. The Veteran testified that he had additional Reserves service from 1993 to around 2001. 2. Ask the Veteran to complete a release authorizing VA to obtain his records for any private medical treatment: • All treatment records from Kaiser Permanente (to include from Dr. Miller and/or Dr. Martinez); • Any outstanding treatment records from Dr. Shemesh/Western Orthopaedics for treatment since November 2013; • Any outstanding treatment records from Denver Health Medical Center from 2007/2008; and • Any other private provider who has treated him since service for the claimed conditions. If any private records identified by the Veteran are not obtained, notify him and his representative of such and give them an opportunity to obtain the records themselves and submit them. 3. DO NOT PROCEED UNTIL THE ABOVE HAS BEEN COMPLETED TO THE EXTENT POSSIBLE. 4. Schedule another VA examination to clarify the nature and etiology of the Veteran’s claimed chronic fatigue condition. The examiner must note his or her review of the complete claims file, including this remand. The examiner must opine as to the following, with full supporting rationales: (a.) Opine whether the Veteran meets the criteria for diagnosis of chronic fatigue syndrome. (b.) If not, then opine whether the Veteran’s fatigue is due to 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness; or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis. (c.) If the examiner determines that the symptoms are either a diagnosable chronic multi-symptom illness with a partially explained etiology or has a clear and specific etiology and diagnosis, then the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the condition was incurred in or otherwise related to the Veteran’s active service. If the Veteran has a “qualifying chronic disability,” medical nexus opinion is not required. 38 C.F.R. § 3.317(a)(7). Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.