Citation Nr: 21009810 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-15 541 DATE: February 23, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome has been withdrawn. REMANDED Entitlement to service connection for chronic sinusitis, to include as secondary to service-connected allergic rhinitis, is remanded. Entitlement to service connection for asthma, to include as secondary to service-connected allergic rhinitis, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected posttraumatic stress disorder (PTSD), and/or service-connected allergic rhinitis, is remanded. FINDING OF FACT During the April 2020 Board hearing, the Veteran expressed his desire to withdraw the appeal for his claim for entitlement to service connection for chronic fatigue syndrome. CONCLUSION OF LAW The criteria for withdrawal of entitlement service connection for chronic fatigue syndrome by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to May 1991, from July 1996 to March 1997, and December 2002 to November 2003, with additional reserves service. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an April 2020 hearing. Entitlement to service connection for chronic fatigue syndrome The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. “Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). During the April 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for chronic fatigue syndrome. At the start of the hearing, the undersigned VLJ asked the Veteran to confirm that he and wished to withdraw the claim for entitlement to service connection for chronic fatigue syndrome and that he would have to start the process with VA all over if he wanted to revisit the issue. The Veteran confirmed that he still wanted to withdraw. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for chronic sinusitis, to include as secondary to service-connected allergic rhinitis and or as a qualifying chronic disability, is remanded. 2. Entitlement to service connection for asthma, to include as secondary to service-connected allergic rhinitis or as a qualifying chronic disability, is remanded. 3. Entitlement to service connection for headaches, to include as secondary to service-connected PTSD, and/or service-connected allergic rhinitis, is remanded. First, remand is required for addendum VA medical opinions. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Chronic Sinusitis and Asthma The Veteran underwent a VA examination in June 2013, where the examiner noted diagnoses of chronic sinusitis and asthma. On a Gulf War General Medical Examination Disability Benefits Questionnaire (DBQ), the examiner did not endorse the chronic sinusitis or asthma as diagnosed illnesses with no etiology. However, the examiner failed to provide any other clear nexus opinions. The Veteran underwent another VA examination in February 2018 for the purposes of his claim for entitlement to service connection for allergic rhinitis. Although the examiner utilized the Sinusitis, Rhinitis, and Other Conditions of the Nose, Throat, Larynx, and Pharynx DBQ, as this examination was specifically for the rhinitis claim, the examiner did not address sinusitis. The only mention of the condition was in the analysis of an April 2017 CT scan which showed results more consistent with left maxillary sinus polyp versus sinusitis. Following the examination, the Veteran was granted service connection for allergic rhinitis. At his April 2020 Board hearing, the Veteran’s representative asserted that the respiratory symptoms may be secondary to the service-connected allergic rhinitis. There, the Veteran also asserted that while in Southwest Asia, he was exposed to oil field fires and burn pits. Additionally, in January 2018 the Veteran submitted a statement by his wife, who is a registered nurse, indicating that the Veteran suffered from respiratory symptoms while on active duty following his return from the Gulf War. These statements should be addressed on remand. Accordingly, remand is required for addendum VA medical opinions. Headaches The Veteran underwent a VA examination in June 2013, where the examiner noted a diagnosis of resolved headache without aura, and that the Veteran did not experience characteristic prostrating attacks. On a Gulf War General Medical Examination DBQ, the examiner did not endorse the headaches as a diagnosed illness with no etiology. However, the examiner failed to provide any other clear nexus opinion. In September 2014, the RO obtained a new VA medical opinion based on a review of the available records where the examiner provided a negative nexus opinion. There, the examiner explained that there is no evidence of any chronic headache pattern that is etiologically related to military service, including to related environmental exposure. The examiner noted that the Veteran had a 1999 sinusitis induced migraine unrelated to military service, and that there is no evidence of an unexplained chronic multi-symptom illness. Rather, the examiner explained that the headaches are a diagnoseable condition of sinusitis induced migraines with a clear and specific etiology. The examiner failed to provide any other supporting rationale. It appears that the examiner only addressed the February 1999 private treatment records (PTRs) where the Veteran’s private physician noted that a sinus infection may have stimulated a migraine headache. Since 1999, both PTRs and VA treatment records indicate that the Veteran has regularly complained of headaches. For example, May 2001 PTRs note that the Veteran was under heavy stress before experiencing recurrent migraines. April 2012 VA treatment records indicate muscle tension headaches. On May 2013 Vet Center records, the Veteran endorsed a problem with severe headaches. February 2015 VA treatment records indicate that the Veteran experiences headaches in the morning that resolve as the day progresses. On a February 2018 fibromyalgia DBQ, the Veteran reported headaches two to three times a month that last for eight to twelve hours, and he experiences them as a band like sensation. At his April 2020 Board hearing, the Veteran raised the theory that his headaches might be secondary to his service-connected PTSD as he notices an increase in migraines after a bad night’s sleep or an anxiety attack. As noted above, the Veteran is now service-connected for allergic rhinitis. Various records, including the February 1999 PTR, and the September 2014 VA medical opinion, indicate that the Veteran’s headaches might be related to the Veteran’s respiratory symptoms. These contentions should be addressed on remand. Accordingly, remand is required for an addendum VA medical opinion. Second, remand is required to obtain missing medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Several VA treatment records in May and June 2019, and February 2020 indicate that outside medical records were scanned into Vista imaging. The Board does not have access to Vista imaging, and these records will need to be added to the Veteran’s claims file separately. Accordingly, remand is required to obtain missing medical records. Finally, the Board notes that at the April 2020 Board hearing, the Veteran’s representative indicated that she was in the process of obtaining independent medical opinions for these claims, and the undersigned VLJ granted 60 days to submit them. Since then, neither the Veteran nor his representative have submitted private medical opinions. As these claims are being remanded for further development, if the Veteran or his representative have obtained these opinions, they should submit them for consideration. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically outside treatment records added to Vista Imaging. 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. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the chronic sinusitis from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the chronic sinusitis had onset in, or is otherwise related to, active service, to include environmental hazards from the Gulf War. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the chronic sinusitis is caused by the service-connected allergic rhinitis. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the chronic sinusitis is aggravated by the service-connected allergic rhinitis. (d) The examiner must address the following: 1) the July 2004 PTR noting frequent sinus infections; 2) the August 2011 and January 2018 statements from the Veteran’s wife, a registered nurse; 3) the April 2020 Board hearing testimony, including the notes of exposure to burning oil fields and burn pits while in Southwest Asia. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the asthma from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the asthma had onset in, or is otherwise related to, active service, to include environmental hazards from the Gulf War. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the asthma is caused by the service-connected allergic rhinitis. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the asthma is aggravated by the service-connected allergic rhinitis. (d) The examiner must address the following: 1) the August 2011 and January 2018 statements from the Veteran’s wife, a registered nurse; and 2) the April 2020 Board hearing testimony, including the notes of exposure to burning oil fields and burn pits while in Southwest Asia. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the headaches from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches had onset in, or are otherwise related to, active service, to include environmental hazards from the Gulf War. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused by the service-connected allergic rhinitis. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are aggravated by the service-connected allergic rhinitis. (d) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused by the chronic sinusitis. (e) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are aggravated by the chronic sinusitis. (f) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused by the service-connected PTSD. (g) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are aggravated by the service-connected PTSD. (h) The examiner must address the following: 1) the February 1999 PTRs indicating that the sinus infection may have stimulated a migraine headache; 2) the May 2001 PTR indicating that the Veteran was under heavy stress before recurrent migraines; 3) the September 2001 PTR indicating that the Veteran has experienced migraine headaches since he was 19 years old; 4) the August 2011 statement by the Veteran’s wife, a registered nurse; 5) the June 2013 and September 2014 VA examinations; 6) the May 2013 Vet Center records indicating severe headaches; 7) the February 2015 VA treatment record indicating morning headaches that resolve as the day progresses; 8) April 2012 VA treatment records indicating muscle tension headaches; 9) the February 2018 VA fibromyalgia examination discussing headaches; and 10) the April 2020 Board hearing testimony. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.