Citation Nr: 21013944 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-07 596 DATE: March 10, 2021 ORDER Entitlement to service connection for fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems, as due to an undiagnosed illness or medically unexplained chronic multi- symptom illness, is denied. Entitlement to a 10 percent evaluation under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities is denied. REMANDED Entitlement to service connection for a left foot and/or ankle condition, identified as left ankle tendonitis and/or pes planus, is remanded. Entitlement to service connection for a respiratory condition, identified as chronic bronchitis, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a sleep disorder, identified as sleep apnea, is remanded. Entitlement to a disability evaluation in excess of 20 percent for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran’s symptomatology, including fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems, is accounted for by diagnosable conditions of posttraumatic stress disorder (PTSD), sleep apnea, gastroesophageal reflux disease (GERD), left shoulder tendonitis with neurological manifestations in the left arm, left ankle tendonitis, pes planus, chronic bronchitis, migraine headaches, and lumbosacral strain, and there is no significant evidence of a chronic multi-symptom illness associated with service in Southwest Asia. 2. The Veteran is in receipt of a 70 percent rating for PTSD, a 30 percent rating for left shoulder nerve impingement, a 20 percent disability rating for left shoulder strain, a 10 percent disability rating for GERD, and a 10 percent rating for tinnitus, for a combined rating of 90 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems, as due to an undiagnosed illness or medically unexplained chronic multi- symptom illness, have not been met. 38 U.S.C. §§ 1117, 5107; 38 C.F.R. §§ 3.102, 3.317. 2. The criteria for entitlement to a 10 percent evaluation under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities have not been met. 38 U.S.C. §§ 5107; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to July 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in July 2018, at which time they were remanded for further development. The have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems, as due to an undiagnosed illness or medically unexplained chronic multi- symptom illness Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi- symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional GI disorders (excluding structural GI diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A “medically unexplained chronic multi-symptom 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.” Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). The Veteran in this matter is a Persian Gulf War Veteran. He avers that he is beset by a range of symptoms, including fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems associated with a chronic multi-symptom illness. However, a review of the evidence of record convinces the Board that although the Veteran suffers from a panoply of symptoms affecting multiple systems and areas of his body, these symptoms are accounted for by firm medical diagnoses furnished by treating and examining providers, and as such, there is no basis for finding present a chronic multi-symptom illness. The Veteran has identified fatigue, digestive issues, muscle pain affecting various regions of the body, headaches, and respiratory problems as symptoms attributable to a chronic multi-symptom illness associated with Southwest Asia service, but the record shows active diagnoses of PTSD with associated sleep disturbance, obstructive sleep apnea, GERD, left shoulder tendonitis with neurological manifestations in the left arm, left ankle tendonitis, pes planus, chronic bronchitis, sinusitis and allergic rhinitis, migraine headaches, and lumbosacral strain. These diagnoses account for most of the Veteran’s complaints with respect to chronic multi-symptom illness, including his complaints of whole-body muscle pain, fatigue, respiratory symptoms, and headaches. Moreover, a VA examiner with whom the Veteran met in July 2007 concluded that, based on an in-person examination and review of the medical record, the Veteran “does not have a disability picture suggestive of symptoms with no identifiable etiology.” The Board affords this assessment great probative weight, because it was furnished by a qualified medical professional who benefitted from a thorough review of the record and examination of the Veteran and is in general accord with the other objective evidence of record. The Board further notes that the Veteran is service-connected for his PTSD, GERD, and left shoulder disabilities, and his other diagnoses for which he has made claims are addressed in the remand portion of the decision for consideration of service connection on a direct or secondary basis. In sum, the record indicates that the symptoms the Veteran has attributed to a chronic multi-symptom illness are accounted for by firm diagnoses, and there remain no unexplained symptoms possibly associated with such a condition. Thus, there is no basis for an award of service connection based on undiagnosed symptoms, and the appeal must be denied. 2. Entitlement to a 10 percent evaluation under 38 C.F.R. § 3.324 based on multiple noncompensable service-connected disabilities The Veteran seeks a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324. Those provisions allow for a 10 percent evaluation based on symptoms associated with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities is of compensable degree according to the schedular criteria. However, a review of the record shows the Veteran is currently service-connected for a number of disabilities and is receiving compensation, with a combined rating of 90 percent. Because the Veteran is already in receipt of a compensable evaluation, the provisions of 38 C.F.R. § 3.324 are not applicable in his case. Accordingly, the claim for compensation pursuant to the provisions of 38 C.F.R. § 3.324 must be denied as a matter of law. REASONS FOR REMAND 1. The claims for entitlement to service connection for a left foot and/or ankle condition, a respiratory condition, a headache condition, a sleep condition, and to an increased evaluation for service-connected left shoulder strain are remanded. The remaining claims on appeal must be remanded for further development before they can be finally adjudicated. With respect to the Veteran’s left foot and ankle, service records reflect an in-service left foot injury, and the Veteran has complained of ongoing pain since service. A July 2020 VA examiner diagnosed the Veteran with left ankle tendonitis and left pes planus. The Veteran has theorized his claim as one for service connection for disability of the left foot and/or ankle, and the record is as yet bare of an opinion with respect to the etiology of the Veteran’s current left foot problems, to include whether they are a manifestation of pes planus. On remand, a new VA examination must be conducted, and an expert medical opinion obtained, and if it is found that the Veteran’s current disability is related to pes planus, and if pes planus is found to have been present in service, the examiner should indicate whether pes planus clearly and unmistakably predated entry into service, and if so, whether there was it was clearly and unmistakably not aggravated beyond its normal course of progression by any aspect of active duty service. With respect to a respiratory condition, the record reflects current diagnoses of sinusitis, allergic rhinitis, and chronic bronchitis. However, the VA examiner with whom the Veteran met in July 2020 indicated there was no respiratory disorder present. On remand, a new VA examination must be conducted, and clarity obtained as to the presence and etiology of any diagnosed respiratory conditions, including any episodic conditions that may not be present at the time of examination. As for the claimed headache condition, the Veteran has a current diagnosis of migraine headaches. While the VA examiner with whom he met in July 2020 indicated that the Veteran’s headaches were not a component of a chronic multi-symptom illness associated with Southwest Asia service, the record remains bare of an opinion as to the etiology of diagnosed migraine headaches in this case. As for the Veteran’s claimed sleep disorder, the remains a degree of opacity as to the provenance of the Veteran’s sleep problems. Whereas a VA examiner with whom the Veteran met in July 2020 opined, in a December 2020 addendum opinion, that the Veteran “is experiencing an increase in [PTSD] symptoms to include difficulty with sleep,” and that “[t]he new diagnosis of insomnia is a progression of the PTSD,” the record also reflects a diagnosis of obstructive sleep apnea (OSA), and longstanding notations in treatment records of sleep problems and fatigue. On remand, a VA examination should be conducted and an expert medical opinion obtained as to the presence and etiology of a sleep disorder, including the presence of sleep-related symptoms severable from those associated with PTSD. Finally, the Veteran’s claim for increase for his left shoulder must be remanded in order to afford him an adequate VA examination. The examiner with whom he met in July 2020 acknowledged that the Veteran would be expected to experience functional loss with repeated use of the shoulder over time, but failed to estimate the degree of loss in terms of range of motion. On remand, the examiner should furnish an estimate as to the degree of loss the Veteran experiences during flareups and with repeated use over time, even if doing so requires the examiner to engage in a degree of speculation. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, secure any outstanding and relevant VA and/or private medical records. 2. Then, schedule the Veteran for a VA examination to explore the presence and etiology of his claimed disorder of the left foot and/or ankle. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please identify all current diagnoses of the left foot and ankle, to include pes planus and left ankle tendonitis. For each diagnosed disorder, please state whether, on an at least as likely as not basis (50 percent or greater probability,) the identified condition began in active service or is related to active service. If the Veteran is diagnosed with pes planus of the left foot, the examiner should state whether that condition clearly and unmistakably predated entry into active duty service, and if so, whether it was clearly and unmistakably aggravated by active duty service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Schedule the Veteran for a VA examination to explore the presence and etiology of his claimed respiratory disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please identify all current respiratory conditions present to include allergic rhinitis, sinusitis, or chronic bronchitis. For all diagnosed conditions, state whether it is at least as likely as not (50 percent or greater probability,) that the condition began in service or is related to service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a VA examination to explore the presence and etiology of his claimed headache disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please identify whether the Veteran has a current headache condition, to include migraines. For all diagnosed conditions, state whether it is at least as likely as not (50 percent or greater probability,) that the condition began in service or is related to service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale 5. Schedule the Veteran for a VA examination to explore the presence and etiology of his obstructive sleep apnea. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.     Please identify all current sleep disorders. For all diagnosed conditions, state whether it is at least as likely as not (50 percent or greater probability,) that the condition began in service or is related to service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 6. Schedule the Veteran for a VA examination to assess the severity of the service-connected left shoulder disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.   The examiner is asked to describe the current nature and severity of the Veteran’s left shoulder disability. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided.   In particular, the examiner is directed to estimate the degree of functional loss during flareups and with repeated use over time, as represented by lost range of motion. The examiner must elicit from the Veteran such information as is necessary to make such a determination. It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. 7. Readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.