Citation Nr: 21027814 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-05 861 DATE: May 6, 2021 REMANDED Entitlement to an initial disability rating in excess of 60 percent for a bilateral hearing loss disability is remanded. Entitlement to service connection for a disability manifested by symptoms of fatigue, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness is remanded. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness is remanded. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness is remanded. Entitlement to service connection for headaches, to include as due to an undiagnosed illness or a medically unexplained multisymptom illness is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1972 and from September 1976 to March 1992, to include service in the Southwest Asia theater of operations. His awards and decorations include the Combat Infantryman's Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2012 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified before the undersigned at a video conference hearing. A copy of the hearing transcript has been uploaded to the Board's Veteran's Appeals Co-Locator System (VACOLS). These matters were previously remanded by the Board in October 2018 to obtain outstanding VA treatment records and provide the Veteran VA examinations. The case has been returned to the Board. However, as addressed below, the Board finds that another remand is necessary to ensure compliance with the Board's October 2018 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that, with regard to the Veteran's claim for an increased rating for bilateral hearing loss, the record reflects that the Veteran received VA audiological evaluations in February 2014, July 2017, May 2018, and March 2021. While the VA treatment records referencing these evaluations are associated with the claims file, the audiograms themselves are not. The Board notes that the VA treatments records show that the actual results of the audiometric evaluation were noted to be "viewable via the TOOLS menu of CPRS, under Audiology > Audiogram Display." Therefore, the Board finds that the RO must procure the audiograms from the February 2014, July 2017, May 2018, and in March 2021 VA audiometric evaluation located under the tools menu. Furthermore, upon review of the October 2019 VA opinions, the Board finds that the requested opinions do not comply with the Board's prior remand directives and, upon remand, new medical opinions should be obtained. With regard to headaches, in the October 2018 remand, the Board indicated that service records dated in September 1970 and April 1971 note complaints of headaches associated with a viral syndrome and the Veteran received a diagnosis of non-specific headaches during a March 2012 examination. The Board requested a direct service connection opinion addressing this evidence. In October 2019, a VA examiner opined that it was less likely than not that the Veteran's headache condition is related to a specific exposure event experienced during service in Southwest Asia, indicating that the Veteran did not have a diagnosis of a headache condition because the claims file was silent for such a diagnosis. However, in making this finding, there is no indication that the examiner considered the September 1970 and April 1971 STRs or the March 2012 diagnosis of non-specific headaches. Additionally, regarding a gastrointestinal disorder, the Board indicated that an opinion was needed to clarify whether the Veteran has a confirmed diagnosis of IBS or any other gastrointestinal disability that is related to, or had its onset during, his period of military service. In answering this question, the examiner was asked to reconcile the conflicting evidence of record, notably a December 2011 VA treatment report reflecting that one of the Veteran's "Problems" was listed as "Diarrhea and constipation which is part of the Persian Gulf syndrome--irritable bowel" and a March 2012 VA examiner's opinion that the Veteran did not have a diagnosis consistent with Gulf War Syndrome. The October 2019 examiner opined that it was less likely than not that the Veteran's intestinal condition is related to a specific exposure event experienced during service in Southwest Asia, indicating that the Veteran did not have a diagnosis of an intestinal condition. The examiner indicated that the Veteran had reported diarrhea and constipation in 2012 that resolved. However, the examiner did not address the December 2011 VA treatment report or the findings of the March 2012 VA examination report as requested in the prior Board remand. Finally, with regard to a disability manifested by fatigue, the Board found that an examination was necessary to clarify whether the Veteran has a confirmed diagnosis of chronic fatigue syndrome (CFS) or any other disability manifested by fatigue and sleep problems other than CFS. The Board instructed that the examiner should reconcile the conflicting evidence of record, notably a December 2011 VA treatment record reflecting that one of the Veteran's "Problems" was "Chronic fatigue, Persian Gulf syndrome" with a March 2012 CFS DBQ containing the examiner's opinion that his complaints of fatigue did not rise to the level of a diagnosis of CFS. The October 2019 VA examiner, again providing a negative nexus opinion, indicated that the Veteran did not have a complaint, diagnosis or evaluation for Chronic Fatigue Syndrome, and the claims file is silent for a diagnosis of CFS. However, there is no indication that the examiner considered the evidence noted in the prior Board remand. Further, the October 2019 VA examiner provided a negative service connection opinion for a sleep disorder, indicating that the Veteran did not have a diagnosis of a sleep apnea condition. In this regard, the Board notes that the record reflects that the Veteran received a diagnosis of obstructive sleep apnea in March 2020. Thus, upon remand, the examiner should also address the significance of this diagnosis as it relates to the Veteran's claim for symptoms of fatigue as well as offer an opinion regarding the nature and etiology of the Veteran's sleep disorder. In light of the foregoing and to ensure compliance with the Board's October 2018 directives, the Board finds that another remand is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA audiogram reports from February 2014, July 2017, May 2018, and March 2021 that are specifically located under the tools menu noted on the VA treatment records from these audiometric evaluations. The RO must contact the appropriate VA medical center to obtain the audiograms. 2. Obtain an addendum opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's claimed headaches, gastrointestinal disorder, and fatigue. If necessary, the Veteran should be scheduled for an appropriate VA examination to complete the requested opinions. The claims file should be made available to the examiner. The examiner is asked to: (a.) Opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that that the Veteran's headaches are etiologically related to military service. In rendering this opinion, the examiner is asked to specifically consider the September 1970 and April 1971 STRs noting headaches and the findings and diagnosis noted in the March 2012 VA examination report. (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed gastrointestinal symptoms, sleep disturbances, and fatigue are due to a (1) a diagnosable chronic multisymptom illness with a partially explained etiology, or (2) a disease with a clear and specific diagnosis. If it is the latter, the examiner must provide the diagnosis of the disability(ies). (c.) If the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's claimed gastrointestinal disorder, fatigue and sleep-related problems are causally related to his active service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia during the Persian Gulf War. (d.) If the examiner determines that the Veteran's disability pattern is neither a diagnosable chronic multisymptom illness with a partially explained etiology nor a disease with a clear and specific etiology, then the examiner should opine as to whether the Veteran's claimed gastrointestinal, fatigue and sleep-related problems are due to objective indications of a qualifying chronic disability to include (1) an undiagnosed illness, or (2) medically unexplained chronic multisystem illness. For purposes of this opinion, the examiner should consider the following: "Medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or cause 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. "Objective indications of 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 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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. (e.) If no disability, undiagnosed illness, or medically unexplained chronic multisymptom illness is identified, an explanation should be provided. In rendering the requested opinions regarding the Veteran's claimed gastrointestinal disorder, fatigue and sleep-related problems, the examiner should consider all of the evidence of record, specifically addressing the findings and diagnoses of the March 2012 VA examinations, the Veteran's recent diagnosis of obstructive sleep apnea, and the December 2011 VA treatment report reflecting "Chronic fatigue, Persian Gulf syndrome" and "Diarrhea and constipation which is part of the Persian Gulf syndrome--irritable bowel". A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, Associate 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.