Citation Nr: 21009237 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-51 308 DATE: February 22, 2021 REMANDED Entitlement to service connection for a neurological disorder manifested by bilateral hand tremors is remanded. Entitlement to service connection for a respiratory disorder, claimed as shortness of breath, is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran had active service from July 1989 to July 1992, with additional Reserves service. The Veteran’s personnel records show he was stationed in Saudi Arabia from September 1990 to April 1991. As such, he served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues of entitlement to service connection for headaches, a gastrointestinal disability, and a respiratory disability, were remanded for further development in June 2019. In this decision, the Board also denied the claim for service connection for a neurological disorder manifested by bilateral hand tremors. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) and vacated the portion of the June 2019 Board decision that denied service connection for a neurological disorder manifested by bilateral hand tremors. Upon review, the Board finds that additional development is needed prior to adjudication of the claims. Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran served in Southwest Asia during the Persian Gulf War. Service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome (CFS), or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. IBS is deemed a functional gastrointestinal disorder. 38 C.F.R. § 3.317(a)(2)(i)(B)(3). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). 1. Entitlement to service connection for a neurological disorder manifested by bilateral hand tremors is remanded. The Veteran claimed entitlement to service connection for a neurological disorder manifested by bilateral hand tremors, as due to service in the Southwest Asia theater of operations during the Persian Gulf War. He claims he was exposed to neurotoxins (PB nerve agent pills, vaccinations including anthrax and botulinum, pesticides, chemical nerve agents) while stationed in Saudi Arabia. The Board denied the claim on the basis that there was no diagnosis of a disability manifested by tremors. However, in the Joint Motion, the parties agreed that although the Board acknowledged 38 C.F.R. § 3.317 in addressing the claim, its analysis improperly focused on a lack of diagnosed disability rather than the noted neurological signs and symptoms experienced by the Veteran, such as shaking hands and tremors. See, e.g., March 2014 VA examination report. The parties also agreed that the Board failed to address potentially favorable evidence of record, a May 2005 private treatment record noting the Veteran’s report of a problem with his nerves and tremors and that he served in Desert Storm and dated his symptoms to his period of service and wondering if he could have Gulf War Syndrome. Finally, the parties agreed that on remand, given the evidence of record, the Board shall also address whether his tremors are signs of a psychological disorder. See May 2020 Joint Motion. The March 2014 VA examiner noted the complaints of tremors in both hands since 1992 but found no evidence of active tremors at that time. Neurological testing was normal. However, the March 2014 VA examination was inadequate as it failed to address whether the bilateral hand tremors could be an undiagnosed illness under 38 C.F.R. § 3.317 which provides that a qualifying chronic disability can include an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) which “cannot be attributed to any known clinical diagnosis.” 38 C.F.R. § 3.317(a)(1)(ii). Further, signs or symptoms of the undiagnosed illness may specifically include “neurological signs or symptoms” and “neuropsychological signs or symptoms.” 38 C.F.R. § 3.317(b)(6)-(7). Therefore, an additional VA examination is necessary. In addition, remand is necessary for the examiner to address whether the Veteran’s bilateral hand tremors are symptoms of a psychological disorder. See, e.g., May 2005 private treatment records (noting the reported problem with nerves and tremor and current medications include Xanax); March 2017 private disability benefits questionnaire (DBQ) (noting the reported history of hand tremors, nervousness, anxiety, and panic attacks with use of Zoloft); June 2017 medical opinion letter from Dr. S.Y. (initials used to protect privacy) (noting the reported history of nervous tremors since Gulf War service with reported exposure to environmental hazards including pesticides and oil well fires). 2. Entitlement to service connection for a respiratory disorder is remanded. The Veteran claims entitlement to service connection for a respiratory disorder, a headache disorder and a gastrointestinal disability, as due to service in the Southwest Asia theater of operations during the Persian Gulf War. He claims he was exposed to neurotoxins (PB nerve agent pills, vaccinations including anthrax and botulinum, pesticides, chemical nerve agents) while stationed in Saudi Arabia. As previously noted, the Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). On respiratory examination in March 2014, PFTs and chest imaging studies revealed no abnormalities. A respiratory condition was not diagnosed. In a subsequent addendum opinion report, the VA examiner reiterated that clinical testing was inconsistent with a respiratory disorder. The examiner also noted that the Veteran owned a hydraulic company where he was exposed to different mists, oils, solvents, and dust. The examiner acknowledged a history of asthma and seasonal allergies for which he was treated with allergy shots. The examiner opined that the Veteran’s shortness of breath was most likely due to asthma. However, the examiner did not offer an opinion regarding the etiology of the Veteran’s asthma. In a March 2017 DBQ examination report Dr. S.Y. noted a diagnosis of bronchospasm and shortness of breath since the 1990s. Thereafter, in a medical statement in June 2017, Dr. S.Y. reiterated the Veteran’s reported history of breathing difficulties since returning from the Gulf War, along with his claimed exposure to anthrax vaccination, nerve agent prophylactic pills, pesticides, oil well fires and smoke, along with other unknown environmental exposures. However, the Board accorded Dr. S.Y.’s statements little probative value as they appeared to be simply a transcription of the reported medical history. The Board remanded the claim for an additional VA examination and medical opinion to determine whether the Veteran currently has a respiratory disorder, to include asthma, as due to service, to include his claimed exposure to neurotoxins during his Southwest Asia service. Following remand, the Veteran was afforded another VA examination in January 2020. The examiner noted the diagnosis of asthma in 2006 and the reported history of symptoms beginning in 1992-1993. The examiner opined that his respiratory symptoms including shortness of breath can be attributed to a known clinical diagnosis to include asthma. The examiner stated that asthma is a known and diagnosable illness with a clear etiology. It is a condition in which the airways narrow and swell and produce extra mucus and can be triggered by airborne pollutants such as pollen, dust mites, mold spores and smoke. Symptoms include shortness of breath, chest tightness or pain, coughing and wheezing. She opined that the Veteran’s asthma is less likely than not due to a specific exposure event experienced by the Veteran during Southwest Asia service since it was not diagnosed until 2006, more than thirteen years after service. She also observed that the Veteran had a history of cigarette smoking and owned a hydraulics company where he was exposed to different mists, oils, and dust. She stated that an “interplay of all these factors at least as likely as not attributed (sic) to his claimed respiratory condition.” See January 2020 VA examination report. The January 2020 examiner’s opinion is vague and not supported by adequate medical rationale. She appeared to rely on the fact that the Veteran’s separation examination was normal and he was not diagnosed with asthma until 2006, thirteen years after service, but did not discuss the significance of this gap in time, nor did she discuss the alleged environmental exposures in service including smoke from oil well fires. In discussing the etiology of asthma she noted that airborne pollutants such as smoke can be causative. She also stated that his history of smoking and environmental exposures at the hydraulics company likely contributed to his respiratory disorder, but did not quantify it or discuss whether these factors were outweighed by his environmental exposures during Southwest Asia service. Therefore, the Board determines that an additional VA examination and medical opinion are needed to address the nature and etiology of any respiratory disorder that may be present. 3. Entitlement to service connection for a gastrointestinal disorder is remanded. Pertaining to the Veteran’s gastrointestinal complaints, on VA examination in March 2014, the Veteran reported intermittent loose bowel movements. Physical examination failed to show dehydration due to diarrhea and was otherwise essentially normal. The examiner noted loose stools by history and indicated that the records did not reveal any gastrointestinal episodes or treatment during Southwest Asia active duty service. In a subsequent addendum opinion report, the VA examiner determined that the Veteran’s chronic diarrhea, by history, was most likely due to food intolerance or food allergies, noting the Veteran suffered from seasonal allergies, and determined that his GERD symptoms were likely multifactorial. The examiner failed to address the relationship, if any, between the gastrointestinal conditions and the Veteran’s service. In an October 2016 medical opinion statement Dr. S.Y. indicated that the Veteran had intestinal conditions. In an accompanying DBQ examination report Dr. S.Y. noted IBS and GERD since returning from Desert Storm. Dr. S.Y. provided no explanation in support of the reported conclusion, rather, Dr. S.Y. appeared to have transcribed the Veteran’s reported history. The Board concluded that remand was required for an additional VA examination and opinion because the medical evidence was insufficient to decide the claim. See June 2019 Board decision. Following remand, an additional VA examination was conducted in January 2020. The examiner noted the diagnoses of IBS and GERD in 2000 and the reported history of onset around 1991 while stationed in Saudi Arabia. The examiner stated that his gastrointestinal complaints can be attributed to known clinical diagnoses including GERD. The examiner opined that his IBS and GERD are less likely than not related to military service, including environmental exposures in Southwest Asia, explaining that his separation examination was normal, and he was not diagnosed until 2000, eight years after separation from service. See January 2020 VA examination report. Again, the examiner did not explain the significance of the gap in time between separation from service and diagnosis, nor did she address whether the alleged environmental exposures in service, including airborne pollutants such as smoke and pesticides, could have caused his gastrointestinal disorders. As such, another VA examination is needed. 4. Entitlement to service connection for headaches is remanded. Concerning the Veteran’s headache disorder, a VA examiner in March 2014 noted the Veteran’s report of intermittent headaches since 1995, for which he took over-the-counter medication with good relief. The examiner noted that service treatment records did not reveal any treatment for headaches during his active duty in Southwest Asia and his examination was normal. The examiner noted unspecified headaches by history. The examiner did not offer an opinion regarding the etiology of the Veteran’s headaches. In an October 2016 medical opinion statement Dr. S.Y. opined that the Veteran had a history of headaches. In an accompanying DBQ examination report Dr. S.Y. noted migraine headaches since returning from Desert Storm. However, for the same reasons outlined above, Dr. S.Y.’s medical statements were assigned little probative value. As there was no competent medical evidence addressing the etiology of the Veteran’s claimed headache disorder, the Board remanded the claim for an additional VA examination to determine whether the Veteran’s headache disorder had onset in service or was related to any aspect of his service. See June 2019 Board decision. Following remand, a VA examination was conducted in connection with the claim for service connection for headaches in January 2020. The examiner noted the reported history of headaches since 1992-1993 with alleged Southwest Asia hazardous exposures including insecticides, oil well fires and anthrax injections. The Veteran reported symptoms including left-sided head pain, light and sound sensitivity and nausea and vomiting with bad headache episodes. The examiner found that the examination was unremarkable and there was no objective documentation of treatment with medications for headaches in the claims file, only subjective complaints and the Veteran’s reported history. The examiner stated that the Veteran did not have a clinically diagnosed headache disorder. See January 2020 VA examination report. On remand, the examiner was instructed that if the Veteran’s claimed headache disorder cannot be attributed to a known clinical diagnosis, the examiner must indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s symptoms are the result of an undiagnosed illness or medically unexplained chronic multisymptom illness etiologically related to service in Southwest Asia, to include Persian Gulf exposures. The examiner was also instructed that even if the previously diagnosed migraine headaches have resolved, an opinion is still required regarding the etiology of the diagnosed disability. See June 2019 Board decision, citing McClain v. Nicholson, 21 Vet. App. 319 (2007). A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also notes that although the examiner stated that there was no objective medical evidence of a headache disability, the Veteran is competent to report readily observable symptoms such as head pain and light and sound sensitivity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, an additional VA examination is needed to ascertain the nature and etiology of any current headache disorder that may be present. As a final matter, the Board notes that the Veteran’s representative has requested that VA provide the curriculum vitae and other information about the qualifications of the January 2020 examiner demonstrating that she was competent to provide an adequate examination of the Veteran’s claimed conditions. See January 2021 appellate brief. As a general matter, when there is a challenge to the competence of a VA examiner, VA has an obligation to provide the requested information as to competence. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA’s duty to assist). Accordingly, the Veteran should be provided with the qualifications of the January 2020 VA examiner. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current neurological disorder manifested by bilateral hand tremors that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any neurological disorders manifested by bilateral hand tremors that have been present during the appeal period. If any previously diagnosed neurological disorder is not found on examination, the examiner should address whether the disorder was misdiagnosed or has resolved. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology or environmental exposures therein. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should provide opinions, with complete rationales, to each of the following questions for each disability/symptom: (a.) Is the disability pattern consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology. (b.) The term medically unexplained chronic multisymptom illness means 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. Examples include, but are not limited to, the following: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders. (c.) The response to this question should include a discussion of the pathophysiology and etiology of the Veteran’s claimed disability and/or reported symptomology. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (d.) If the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that said disability incurred in, or is otherwise related to service. The Veteran has reported environmental exposures during service in the Persian Gulf including smoke from oil well fires, pesticides, and neurotoxins. The examiner should specifically address the May 2005 private treatment record noting the report of problems with nerves and tremors and raising the possibility of Gulf War Syndrome. The examiner should also opine whether the Veteran’s bilateral hand tremors are signs of a psychological disorder. See, e.g., May 2013 Original Claim for chronic multi-symptom illness related to environmental hazard in Gulf War; August 2016 Statement of the Case describing tremors as a central nervous system disease; July 2014 Statement in Support of Claim stating claim is for nervous system problems; March 2017 Disability Benefits Questionnaire (noting movement disorders including tremors, nervousness, anxiety; detailing history of switching to Zoloft due to shakiness and anxiety; noting that shaky hands make tasks at work difficult and panic attacks may cause him to miss work); May 2005 private treatment record (noting the Veteran takes Xanax due to problems w/nerves and tremors); June 2008 Progress Note diagnosing anxiety; July 2008 Cardiology Note follow-up recognizing Xanax once per day. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should also be afforded a VA examination to determine the nature and etiology of any respiratory disorder, gastrointestinal disorder, and headaches that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The examiner should elicit a full history of the Veteran’s relevant symptoms. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should address whether the Veteran has a current diagnosis associated with a respiratory disorder, gastrointestinal disorder, or headaches. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or is otherwise related to his military service, to include any symptomatology and environmental exposures therein. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should provide opinions, with complete rationales, to each of the following questions for each disability/symptom: (a.) Is the disability pattern consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology. (b.) The term medically unexplained chronic multisymptom illness means 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. Examples include, but are not limited to, the following: chronic fatigue syndrome; fibromyalgia; and functional gastrointestinal disorders. (c.) The response to this question should include a discussion of the pathophysiology and etiology of the Veteran’s claimed disability and/or reported symptomology. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. (d.) If the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that said disability incurred in, or is otherwise related to service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) In providing the above opinions, the examiner should be mindful that even if the previously diagnosed asthma, GERD, IBS, and migraines have resolved, an opinion is still required regarding the etiology of the diagnosed disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   4. Finally, information regarding the qualifications of the January 2020 examiner should be provided the Veteran, consistent with Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019) (en banc). All efforts to obtain such records should be documented in the claims folder. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, Associate 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.