Citation Nr: 21010526 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-22 854 DATE: February 25, 2021 REMANDED Entitlement to service connection for allergic rhinitis due to a chronic qualifying disability, to include due to Gulf War environmental and chemical exposures is remanded. Entitlement to service connection for cervical strain due to a chronic qualifying disability, to include secondary to service-connected thoracic and lumbar strain degenerative arthritis is remanded. Entitlement to service connection for chronic fatigue syndrome as due to a chronic qualifying disability to include due to Gulf War environmental and chemical exposures and/or secondary to service-connected major depressive disorder, PTSD and alcohol abuse/dependence is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1988 to August 1988, and from September 1990 to June 1991. In August 2018, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for allergic rhinitis due to a chronic qualifying disability, to include secondary to Gulf War environmental and chemical exposures The September 2017 VA examiner provided a negative nexus opinion citing an examination from 1991 reporting a five-year history of sinuses and hay fever. Based on this statement the examiner concluded that allergic rhinitis is pre-existing and thus less likely as not related to any in-service disease, event or injury. Another opinion obtained in July 2020 also provided a negative nexus opinion citing to the 1991 treatment record reporting a history of sinus and hay fever and concluding that allergic rhinitis is a preexisting condition. The presumption of soundness states that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (outlining the presumption of soundness). However, if, a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but she may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). “Clear and unmistakable” is defined in applicable regulations to mean “obvious or manifest.” 38 C.F.R. § 3.304 (b). This term has been further defined by the Court as meaning that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board finds that the April 1990 and March 1991 treatment notes indicating a history of allergies is insufficient to rebut the presumption of soundness. The service treatment records do not contain an enlistment examination noting a diagnosis of allergic rhinitis and both the Veteran and his spouse contend that the Veteran did not have allergies prior to service. As such, the presumption of soundness attaches. The medical opinions of record provided opinions based on allergic rhinitis preexisting service. As the cited evidence is insufficient to overcome the presumption of soundness, the examiner’s opinions are based on an inaccurate premise and have no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, a remand is necessary to obtain an addendum opinion. 2. Entitlement to service connection for cervical strain due to a chronic qualifying disability The December 2017 examiner opined that the Veteran’s degenerative changes are less likely as not related to service as medical literature reports that bad posture and aging are the main causes noting that lay statements do not override medical diagnoses or evidence. Another opinion obtained in October 2019 concluded that there is insufficient evidence that the cervical spine condition and radiculopathy of the upper extremities incurred in or are related to service. The examiner noted the Veteran’s statement that his neck pain began in service but cited to a lack of medical records in service and for several years after service to support the negative nexus. The Board finds both opinions of record are inadequate for adjudication. The December 2017 examiner generally concluded that medical research does not support a nexus but failed to discuss how the literature applied to the Veteran’s specific circumstances and the facts of the case and the October 2019 examiner relied on the absence of evidence without explaining the significance of such. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). As such, the examiners failed to provide a medical examination report containing clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Veteran’s representative submitted articles suggesting a link between arthritis and military service. See Appellate Brief January 2020. Therefore, a remand for a medical opinion is necessary. 3. Entitlement to service connection for chronic fatigue syndrome The December 2017 examiner concluded that the Veteran does not have a diagnosis of chronic fatigue syndrome stating that he is diagnosed with obstructive sleep apnea, which literature reports may cause daytime fatigue and drowsiness. In October 2019 the examiner again found no diagnosis of chronic fatigue syndrome and reported that the Veteran developed severe fatigue soon after his deployment which became chronic, but the service treatment records are silent for complaints in service. The examiner noted complaints of fatigue in 1995 and that he was diagnosed with sleep apnea in 2004, depression around 2009 and PTSD in 2010. The examiner concluded that fatigue is a symptom of depression, sleep apnea and PTSD as well as his psychotropic medications. The Board finds the medical opinions of record inadequate. Both examiners concluded fatigue is a symptom of sleep apnea and/or PTSD; however, as pointed out by the October 2019 examiner the Veteran’s complaints of severe fatigue predated these diagnoses by several years. Furthermore, in a separate opinion for sleep apnea, the October 2019 examiner opined that there is no evidence of sleep apnea during active duty or within a year from separation; thus, confounding the conclusion that chronic fatigue that developed soon after the Veteran’s deployment is a symptom of sleep apnea. As such, the Board finds the medical opinions of record lack probative value and a remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, it must provide an adequate one). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s allergic rhinitis is related to his active service, or is caused by or aggravated by military service, to include due to chemical and/or environmental exposures while serving in Southwest Asia. The examiner should consider and address the following: 1) the Veteran’s assertion that his allergies developed while deployed in Saudi Arabia and has continued ever since; 2) the contention that the Veteran was exposed to chemical and environmental irritants during Desert Storm; and 3) the service treatment records reflecting complaints of hay fever in April 1990, sinus, hay fever and asthma in March, May, September and October 1991. The examiner is advised that treatment notes indicating a history of allergies is insufficient to establish that rhinitis is a preexisting condition. 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. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s cervical strain, degenerative arthritis and bilateral radiculopathy of the upper extremities (herein referred to cervical spine condition) is related to active service or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that cervical spine condition is proximately due to or the result of the Veteran’s service-connected thoracic and lumbar strain degenerative arthritis? (c.) If the answer to (b) is negative, is it at least as likely as not that the cervical spine condition is aggravated (i.e., permanently or temporarily worsened) by the service-connected thoracic and lumbar strain degenerative arthritis? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. 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. The examiner should consider and address the following: 1) the Veteran’s assertion that his neck pain developed after his low back injury during deployment; 2) the service treatment records reflecting a complaint of stiff neck in April 1988; and 3) the medical articles indicating an increased prevalence of arthritis in Veterans. See Appellate Brief December 2020. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Clarify whether the Veteran’s fatigue is distinct and separate from depression, PTSD and/or obstructive sleep apnea. The examiner should consider and address the following: 1) the Veteran’s assertion that severe fatigue began after his deployment in 1991; 2) the July 1995 medical report for fatigue; 3) the medical records indicating that the diagnoses of depression, PTSD, and obstructive sleep apnea occurred several years after the Veteran’s complaints of fatigue; and 4) the CDC article concerning fatigue and conditions with similar symptoms. See Appellate Brief December 2020. (b.) Determine whether fatigue belongs to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. (c.) Is it at least as likely as not (a 50 percent or greater probability) that fatigue is related to active service or is caused by or aggravated by military service, to include due to chemical and/or environmental exposures while serving in Southwest Asia. (d.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that fatigue is proximately due to or the result of the Veteran’s service-connected major depressive disorder, PTSD and alcohol abuse/dependence, to include treatment for this condition? (e.) If the answer to (d) is negative, is it at least as likely as not that the fatigue is aggravated (i.e., permanently or temporarily worsened) by the major depressive disorder, PTSD and alcohol abuse/dependence, to include treatment for this condition? (f.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. 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. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.