Citation Nr: 21027266 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-45 461 DATE: May 5, 2021 REMANDED Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Entitlement to service connection for bilateral arm disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Entitlement to service connection for bilateral leg disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Entitlement to service connection for bilateral hip disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1979 to June 1982, and from February 1984 to August 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board on appeal of a November 2013 rating decision. This case was previously before the Board in May 2020, where the issues on appeal were remanded for further evidentiary development. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Here, in the December 2020 VA examination, it was shown that the Veteran had migraines including migraine variants diagnosis since 2008. The Veteran reported having headaches that began in the early 1990s, with no prior injury or head injury. He explained that he gets migraines weekly that lasts for days on occasion. The Veteran underwent a CT scan of the brain in 2008, but the results of the test were normal. At the conclusion of the examination, the examiner opined that the Veteran's migraine headaches were less likely than not incurred in or caused by service. The examiner reasoned that the Veteran had several notes throughout his claims file regarding migraines or headaches, yet the earliest mention of the condition was in 2008. The examiner continued that it was unknown of how the headaches started or what possibly caused them. However, the Veteran left service in 1991 and due to the lapse in medical documents that mentioned the condition, there was no evidence that the Veteran's migraines or headaches were related to service. No nexus was created. The Board finds the opinion to be inadequate and thus of little probative value. The examiner indicated that the Veteran's migraine headaches were of unknown etiology but did not discuss whether it was part of an undiagnosed illness or MUCMI. The Board notes that the examiner was directed to render an opinion to include whether the Veteran's condition was an undiagnosed illness or part of a MUCMI. As the examiner failed to render an adequate opinion, remand is necessary to obtain an addendum opinion from an appropriate clinician. 2. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Here, in the December 2020 VA examination, the Veteran reported fatigue, body aches, and tired easily which caused difficulty sleeping. The Veteran explained that fatigue and tiredness caused difficulty even showering and getting dressed. On examination, the examiner marked "no" when asked if other clinical conditions might produce similar symptoms been excluded by history, physical examination, and/or laboratory tests. As a reason, the examiner remarked that the Veteran had not been diagnosed with CFS. Additionally, the examiner marked "no" to any findings, signs, or symptoms of CFS, including headaches, debilitating fatigue, and sleep disturbance, among other factors. However, as discussed above, the Veteran reported being fatigued and tired which caused sleep disturbance and difficulty performing activities of daily living, such as showering and getting dressed. Moreover, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that according to the documentation the Veteran had never been diagnosed with CFS. He concluded that due to no diagnosis and no evidence of it during service, no nexus was created. The Board finds the examination and subsequent opinion to be inadequate; thus, of little probative value. The examiner did not take the Veteran's competent lay statements into account when rendering the opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate where the examiner fails to properly account for competent lay evidence). Moreover, the Board notes that the Veteran is competent to report on lay observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Additionally, the examiner failed to opine on the etiology of the Veteran's claimed fatigue condition, as directed under the Board's May 2020 remand. As such, a remand to determine the etiology of the Veteran's fatigue condition is warranted. 3. Entitlement to service connection for bilateral leg disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Regarding the Veteran's bilateral leg disability, the Board's May 2020 remand directed the AOJ to provide the Veteran with a VA examination to determine the etiology of any bilateral leg condition. However, the Veteran underwent a hip examination, but no bilateral leg condition was identified or examined. Importantly, as a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 4. Entitlement to service connection for bilateral arm disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. 5. Entitlement to service connection for bilateral hip disability, to include as due to an undiagnosed illness or a symptom of a medically unexplained chronic multi-symptom illness (MUCMI) is remanded. Lastly, the Veteran underwent VA examinations in December 2020, to determine the etiology of any bilateral arm and/or hip disability. The Veteran reported bilateral hip pain that had worsened since onset. He reported difficulty sitting for long periods, getting up and down from a chair, as well as difficulty walking and putting on pants. Regarding the elbows, the Veteran reported bilateral elbow pain without any injury. Furthermore, the Veteran reported bilateral shoulder pain that has worsened over time. The examiner diagnosed the Veteran with a bilateral hip strain, shoulder strain and bilateral elbow strain. The examiner opined that the Veteran's bilateral shoulder, elbow, and hip condition were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no mention of any hip condition throughout the Veteran's claims file. The examiner added that although the Veteran did show restriction in the movement of both hips during the examination, there is a known etiology. Regarding the shoulders/elbows, the examiner reasoned that there was one note in 2006 of bilateral elbow pain, but no other mention throughout the claims file. He concluded that due to the lapse in condition until 2006, there was no evidence the Veteran's elbow condition is due to service. The Board finds the opinions to be inadequate and thus of little probative value. First, the examiner failed to provide an opinion regarding the Veteran's bilateral shoulder condition. Second, the examiner indicated that the Veteran's hip condition had a known etiology but failed to explain the etiology of the Veteran's hip condition. The Board notes that in the May 2020 remand directives asked the examiner whether the etiology and pathophysiology of the condition was understood as to the Veteran. Moreover, the Veteran had complained of joint and muscle pain in his VA treatment records, where he was assessed with polyarthralgia. Additionally, in a March 1994 record, the Veteran indicated medical problems of the back, neck, shoulder aches, headaches, leg/arm aches and stomach problems. See VA treatment records; see also March 1994 VA treatment record. Given the foregoing, the Board finds that a remand is necessary to obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran's conditions. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for examinations to determine the nature and etiology of: (a) migraine headaches; (b) fatigue condition; (c) bilateral elbow/shoulder condition; (d) bilateral leg condition; and (e) bilateral hip condition. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the following: (a.) Is the etiology of the Veteran's migraine headaches (1) inconclusive, (2) partially understood, or (3) fully understood? (b.) Is the etiology of the Veteran's fatigue condition (1) inconclusive, (2) partially understood, or (3) fully understood? (c.) Is the etiology of the Veteran's bilateral arm condition (shoulders/elbow) (1) inconclusive, (2) partially understood, or (3) fully understood? (d.) Is the etiology of the Veteran's bilateral leg condition (1) inconclusive, (2) partially understood, or (3) fully understood? (e.) Is the etiology of the Veteran's bilateral hip condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (f.) Is the pathophysiology of the Veteran's migraine headaches (1) inconclusive, (2) partially understood, or (3) fully understood? (g.) Is the pathophysiology of the Veteran's fatigue condition (1) inconclusive, (2) partially understood, or (3) fully understood? (h.) Is the pathophysiology of the Veteran's bilateral arm condition (1) inconclusive, (2) partially understood, or (3) fully understood? (i.) Is the pathophysiology of the Veteran's bilateral leg condition (1) inconclusive, (2) partially understood, or (3) fully understood? (j.) Is the pathophysiology of the Veteran's bilateral hip condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (k.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's (a) migraine headaches; (b) fatigue condition; (c) bilateral arm condition; (d) bilateral leg condition; (e) bilateral hip condition was incurred in, or is otherwise related to, his active service? 3. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) 4. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 5. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.