Citation Nr: 21011167 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-14 297 DATE: March 1, 2021 ORDER Entitlement to a disability of the upper extremities manifested by symptoms including neuralgia, numbness, and tingling to include as due to service in Southwest Asia during the Persian Gulf War is granted. Entitlement to service connection for a hernia and residuals thereof to include as due to service in Southwest Asia during the Persian Gulf War is granted. REMANDED Entitlement to temporary total disability ratings for periods of convalescence following a hernia surgery is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran served in Southwest Asia during the Persian Gulf War and participated in combat during his service. 2. The evidence shows that the Veteran has a current disability of inconclusive etiology and pathophysiology affecting the upper extremities, which has manifested to a compensable degree with symptoms including neuralgia, numbness, and tingling persisting for over six months during the period on appeal. 3. The preponderance of the evidence shows that the Veteran’s hernia first manifested during his active duty military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the upper extremities manifested with symptoms including neuralgia, numbness, and tingling to include as due to service in Southwest Asia during the Persian Gulf War are met. 38 U.S.C. §§ 1110, 1117, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for a hernia and residuals thereof to include as due to service in the Southwest Asia during the Persian Gulf War are met. 38 U.S.C. §§ 1110, 1117, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to August 1991, January 2003 to December 2004, and January 2007 to June 2008. His service includes service in the Army Reserve and National Guard, service in Southwest Asia (e.g. Saudi Arabia and Kuwait) during the Persian Gulf War, and participation in combat. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in September 2017 and May 2019 for additional evidentiary development including obtaining additional relevant treatment records and VA examinations to assist the Board in identifying the etiology of the Veteran’s disabilities. The Veteran testified at a May 2017 hearing before a former Veterans Law Judge. The Board offered the Veteran another opportunity for a hearing, but the Veteran did not a request a second hearing. See January 2021 letter from VA to the Veteran. The Veteran’s representative acknowledged that the Veteran was unable to attend the additional VA examinations the Board requested in the remand order, but neither the Veteran nor his representative have offered a statement of good cause for not attending. See April 2020 Appellant’s Post-Remand Brief. As they have not indicated the Veteran is willing and able to attend an examination, the Board will proceed to adjudicate the Veteran’s claims based on the evidence of record. See 38 C.F.R. § 3.655. Moreover, the Veteran’s VA treatment providers have been unable to identify etiologies and pathophysiologies for the Veteran’s disabilities, and the Board finds additional development in this case is unnecessary as the evidence supports a grant of the service connection benefits the Veteran requests. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, VA has found that some of the Veteran’s service records are missing through no fault of the Veteran’s and that additional efforts to locate the records would be futile. See December 2017 letter from VA to the Veteran; November 2017 VA Memorandum. In circumstances where the Veteran’s service treatment records are destroyed or lost through no fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a compensable degree of 10 percent or more not later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 C.F.R. § 3.317(e)(2). A ‘qualifying chronic disability’ means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A qualifying chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. See 38 C.F.R. § 3.317(a)(2-5). The United States Court of Appeals for Veterans Claims (CAVC) has issued a panel decision, which addressed the meaning of “medically unexplained multi-symptom illness” (MUCMI) in the context of 38 C.F.R. § 3.317. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). CAVC clarified that an illness is a MUCMI where either the etiology or the pathophysiology of the illness is inconclusive and is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. CAVC also noted that the determination of whether a condition is a MUCMI must be based on an individual veteran’s circumstances rather than the illness as it is understood in the general public. In the May 2019 remand order, the Board found the Veteran’s service records established he served in combat, and the Board considered his combat status in finding that he sustained injuries (e.g. a fall and stress from heavy lifting), which he indicates are the cause of his disabilities. See 38 U.S.C. § 1154. The Board also found that the Veteran is competent to report his observable symptoms of the claimed disabilities (e.g. pain, numbness, tingling, and observable signs of a hernia). The Board finds that the Veteran has further demonstrated his competence to report his hernia symptoms as he reported the signs and symptoms to his VA treatment providers, who confirmed they were consistent with a recurrence of a hernia and residuals thereof. See May 2016 Nursing Note from Phoenix VA Medical Center, Southeast Community-Based Outpatient Clinic. The Board finds the Veteran’s statements about the continuity of relevant symptoms beginning during his time of active duty and continuing through the present to be credible in the context of the totality of the evidence. See, e.g. letter from the Veteran received in October 2009. As noted in the Board’s May 2019 remand order, the Veteran reported many of the relevant symptoms within one year of his separation from active duty, and his hernia surgery was performed approximately one year after his separation. See June 2009 Pre-Operative E & M note from Phoenix VA Medical Center; March 2009 Southeast Clinic Note from the MESA VA Outpatient Clinic (noting the Veteran had “chronic” upper extremity numbness). After reviewing the totality of the evidence, the Board finds that it supports a grant of service connection for the claimed disabilities of the upper extremities and hernia residuals. In reaching this decision, the Board considered the heighted duty to apply the benefit of the doubt considering the Veteran’s missing service records. The Board also considered the Veteran’s status as a combat veteran and his competent and credible lay statements, notably in regard to the hernia claim. As noted, his hernia surgery was performed approximately one year after his separation. As to the upper extremities, the Board has further considered the provisions for service connection for MUCMIs for Persian Gulf War Veterans. The Board finds that the evidence shows the Veteran’s neuralgia, numbness, and tingling symptoms have inconclusive etiologies, and the evidence shows these symptoms have been chronic and persistent with objective manifestations for over six months during the period at issue. See, e.g., January 2018 VA examination (noting the Veteran had some muscle atrophy of the upper extremities). For all of these reasons, the Veteran’s claims for service connection are granted. REASONS FOR REMAND The AOJ denied the Veteran’s claim for temporary total disability ratings for periods of convalescence following hernia surgery on the basis that the hernia was not a service-connected disability. As the Board has granted the Veteran service connection for the hernia and residuals thereof, the AOJ should readjudicate the issue of entitlement to temporary total ratings after assigning disability ratings and effective dates for the hernia disability in the first instance. The matters are REMANDED for the following action: The AOJ should assign disability ratings and effective dates for the Veteran’s service-connected hernia and residuals thereof and readjudicate the claim for temporary total evaluations based on residuals of a hernia surgery. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.