Citation Nr: 21029572 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-02 089 DATE: May 13, 2021 ORDER Service connection for a condition rushing blood sensation to the back of head and neck, as an undiagnosed illness, is granted. Service connection for a condition based on lack of energy, including as due to an undiagnosed illness, is denied. Service connection for a psychiatric major depressive disorder and general anxiety disorder is granted. REMANDED Service connection for a back condition, including muscle spasms with pain, as due to an undiagnosed illness. Service connection for memory loss as due to an undiagnosed illness. FINDINGS OF FACT 1. The Veteran has a condition of rushing blood sensation to the back of head and neck involving as an undiagnosed illness. 2. The Veteran does not have a condition manifested by lack of energy due to an undiagnosed illness that has manifested to a degree of at least 10 percent; rather the evidence indicates it is a symptom of his psychiatric condition. 3. The Veteran has major depressive disorder and general anxiety disorder due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a condition manifested by a rushing blood sensation to the back of head and neck, as an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for a condition based on lack of energy, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for major depressive disorder and general anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991. He also had service in the Reserve and a period of active duty for training from May 1981 to September 1981. The case is on appeal from a February 2015 rating decision. In November 2018, the Veteran testified at a Board hearing. The Board remanded this matter in June 2019. The remand included four other claims of service connection involving a bilateral hand condition; a bilateral hip condition; a bilateral foot condition; and a right leg, foot and toe condition. Upon remand, in a March 2021 rating decision, the RO granted service connection for these disabilities. Hence, those claims are resolved and are no longer on appeal before the Board. The claim of service connection for memory loss was previously within the scope of the claim of service connection for a psychiatric condition. Due to medical evidence developed upon remand, the Board finds that the memory loss claim should be bifurcated and considered separately in the remand section. Boyd v. McDonald, 27 Vet. App. 63, 69 (2014). SERVICE CONNECTION In this case, the Veteran contends that he has symptoms, but no diagnosis corresponding to the claimed conditions, even after undergoing an extensive work-up by his private (non-VA) primary doctor. Board Hr'g Tr.2, 4. He believes he may have a medical condition due to service in the Persian Gulf War. Board Hr'g Tr.3. His wife likewise wrote in a November 2018 letter that he had unexplained health issues even after consulting with his primary care provider numerous times over the prior 15+ years. The evidence establishes that the Veteran is a "Persian Gulf veteran" within the meaning of 38 C.F.R. § 3.317. His DD Form 214 confirms service in Southwest Asia from January 1991 to May 1991. Thus, the critical question is whether the claimed conditions are related to his service in Southwest Asia. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for certain disabilities occurring in Persian Gulf veterans. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Service connection may be established where a Persian Gulf veteran exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. "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. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and changes in the veteran's appearance, physical abilities, and mental or emotional attitude. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). 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. 38 C.F.R. § 3.317(a)(4). Service connection may not be established under 38 C.F.R. § 3.317 for a chronic disability: (i) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (ii) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (iii) if there is affirmative evidence that the disability is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Pain, such as muscle pain or joint pain, may also establish an undiagnosed illness that causes a qualifying chronic disability. Joyner, 766 F.3d at 1395. Presumptive service connection may also be established under 38 C.F.R. § 3.317 for certain infectious diseases, which are listed in 38 C.F.R. § 3.317(c). B. Discussion 1. Service connection for a condition of the back of head and neck, including rushing blood sensation, as due to an undiagnosed illness. The Veteran reports experiencing symptoms beginning since 2001 or 2003. See Board Hr'g Tr. 2; 9/24/2020 VA Hypertension Examination. The Veteran underwent a VA hypertension examination in September 2020. The VA examiner found no diagnosis to explain the Veteran's symptoms of a blood rushing sensation in the neck and back of the head. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner specified that the Veteran's condition of the back of head and neck, including rushing blood sensation, was an undiagnosed illness. In a separate opinion, the same 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 explained that no diagnosis was warranted for abnormal sensation in the back of the head and neck, and the Veteran's symptoms were not medically supported as the onset or the cause of his condition was unclear. Hence, the examiner reiterated, a nexus was not established. The Board finds that this examiner's opinion supports a grant of service connection. The examiner could not attribute the signs and symptoms to a known clinical diagnosis. The VA examiner specifically classified it as an undiagnosed illness. The VA examiner appeared to then give a contradictory opinion on the nexus question. However, there is no conflict as one opinion addressed whether it was an undiagnosed illness and the other address whether there was a nexus to service. Because the condition qualifies as an undiagnosed illness, service connection is warranted under § 3.317. A direct nexus is not needed. This part of the VA examiner's opinion is immaterial and does not weigh against the claim. In fact, a close reading of the negative opinion tends to buttress the positive opinion as it again indicates that the cause of the condition was unclear. The evidence does not otherwise show that the Veteran's signs and symptoms are attributable to a known clinical diagnosis by history, physical examination, or laboratory testing. The Veteran's signs and symptoms have existed from at least 2003. Thus, they are considered chronic under the regulatory definition. Moreover, the signs and symptoms have manifested to a degree of at least 10 percent. There is no specific diagnostic code (DC) for this condition. However, at his Board hearing, he described it as what an aneurysm might feel like. Board Hr'g Tr. 5. To the extent it involves a sensation in the head, even though not pain, it could be considered analogous to migraine headaches, under DC 8100, which provides for a 10 percent rating with characteristic prostrating attacks averaging one in 2 months over last several months. Based on the Veteran's descriptions of the condition, for the purposes of the service connection analysis, it appears to meet these requirements at a minimum and by analogy. As there is no affirmative evidence to the contrary, see 38 C.F.R. § 3.317(a)(7)(i)-(iii), the Veteran's signs and symptoms are considered an undiagnosed illness and service connection is warranted for a condition of rushing blood sensation to the back of head and neck. 2. Service connection for a condition based on lack of energy, including as due to an undiagnosed illness. The Veteran reports experiencing symptoms beginning from 2001 to 2006. See 2/26/2021 VA Chronic Fatigue Syndrome (CFS) Examination ("he noticed issues with fatigue about 15-20 years ago"). A VA examiner in September 2020 found that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. Nonetheless, the examiner found that the Veteran's lack of energy was an undiagnosed illness. The examiner also 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 then opined that there was no diagnosis warranted for chronic pain fatigue as the symptoms were subjective only and there was insufficient documentation to render a positive opinion. The examiner stated that there was no evidence of chronicity of care, and a nexus had not been established In February 2021, a different VA examiner likewise found that the Veteran did not have a diagnosis of chronic fatigue syndrome. The examiner found that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome at that time as there was no objective evidence to support a diagnosis of chronic fatigue syndrome. The examiner found that the Veteran had symptoms of fatigue which were due to poor sleep cycles and work schedule. The examiner noted that insomnia, poor sleep cycle, and long work hours have not been excluded. At present, these VA examinations show that service connection is not warranted for the fatigue. First, the Veteran is not diagnosed with chronic fatigue syndrome. Both VA examiners concurred that he did not have chronic fatigue syndrome. Hence, service connection on a presumptive basis for that condition under § 3.317 is not warranted. See 38 C.F.R. § 3.317(a)(2)(i)(B)(1). The September 2020 VA examiner found that the Veteran's lack of energy was an undiagnosed illness whereas the February 2021 VA examiner found it was due to poor sleep cycles and work schedule. The February 2021 examiner noted that insomnia, poor sleep cycle, and long work hours have not been excluded. This latter opinion tends to undermine the September 2020 VA examiner's opinion that it is an undiagnosed illness as the February 2021 VA examiner's opinion appears to have more comprehensively evaluated the Veteran's medical history. Conversely, the February 2021 VA examiner's statement also calls into question the completeness of that examiner's opinion as it indicates that further evaluation is needed. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Ultimately, remand to follow-up on the February 2021 VA examiner's assessment is not needed. Even if the condition is considered an undiagnosed illness consistent with the September 2020 VA examiner's opinion, it has not manifested to a degree of at least 10 percent. The disease is most analogous to CFS, DC 6354, of 38 C.F.R. § 4.88b. That code provides a 10 percent rating for symptoms that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. For the purpose of evaluating this disability, incapacitation exists only when a licensed physician prescribes bed rest and treatment. 38 C.F.R. § 4.88b. Here, there is no indication of bed rest prescribed by a physician. There is no other more analogous DC. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Hence, it cannot be found that the disease manifested to at least a degree of 10 percent. However, to the extent the February 2021 VA examiner found the Veteran's symptoms were consistent with poor sleep cycle, the Board herein grants service connection for a psychiatric condition. The evidence, such as a February 2021 VA examination, show that the psychiatric condition involves symptoms of sleep disturbance. Hence, the Veteran's complaints of lack of energy are contemplated by the grant of service connection for a psychiatric condition. To conclude, the preponderance of the evidence is against the claim of service connection for a condition manifested by lack of energy, the benefit-of-the-doubt doctrine is not applicable, and therefore, service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for a psychiatric condition, including difficulty in concentrating, short-temperedness and moodiness, as due to an undiagnosed illness. The Veteran has been diagnosed with major depressive disorder and general anxiety disorder, as most recently confirmed by a February 2021 VA examiner. A VA examiner in July 2020 opined that the Veteran's condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, that, upon review of the medical records, the Veteran did not report mental health issues before service. Rather, the Veteran stated he began having symptoms of depression and anxiety with inconsistent panic that generalized after discharge. These diagnoses, according to the examiner, were at least as likely as not incurred in or caused by the conditions and hardships of deployment to a combat-like zone. The examiner found the diagnoses to be well-explained from the hardships and incidents occurring in Southwest Asia. In a January 2021 addendum, the VA examiner confirmed that the length of the Veteran's service did not change the diagnosis. In February 2021, a different VA examiner opined that the condition was not a condition of an unknown etiology due to environmental exposure in Southwest Asia. The examiner explained that the Veteran was diagnosed with depression and anxiety in 2019, and his service records did not show a mental health diagnosis or treatment for a mental health condition in service. The examiner found that the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for a mental health condition. The Board finds on the basis of this evidence that the Veteran has a psychiatric condition due to service, particularly when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The July 2020 VA examiner found the Veteran's condition related to service. The examiner confirmed this opinion in the January 2021 addendum. The February 2021 VA examiner's opinion noted the lack of a documented diagnosis or treatment during service, which is correct and appears to undermine the July 2020 VA examiner's positive opinion. In context, however, the February 2021 VA examiner was not giving an opinion as to the nexus question. The February 2021 VA examiner was only answering whether the condition was a condition of unknown etiology. Hence, that VA examiner's opinion does not contradict or otherwise undermine the July 2020 VA examiner's opinion. As such, service connection is warranted for major depressive disorder and general anxiety disorder. REASONS FOR REMAND 1. Service connection for a back condition, including muscle spasms with pain, as due to an undiagnosed illness. The evidence reflects a current diagnosis in the back. Specifically, he was diagnosed by a private provider in October 2012 with degenerative disc disease L5-S1 with disc herniation and foraminal narrowing causing low back and right leg symptoms. A VA examiner in November 2014 confirmed this diagnosis along with lumbar strain and degenerative joint disease (DJD). The examiner found that the claimed muscle spasms had resolved. The Veteran does not contend that symptoms began in service or proximate in time to service. At his Board hearing, he specifically testified "I don't recall any you know debilitating -- immediate debilitating events, you know, such as that." Board Hr'g Tr. 7. The central question is whether his condition is related to environmental exposures in Southwest Asia. The November 2014 VA examiner opined that DJD is a naturally occurring disease process documented in medical literature that occurs in the general population and would not have been caused by any exposure to Gulf War contaminants. The VA examiner observed that currently there is no medical link associated with the development of DJD with service in Southwest Asia. The examiner also found that the Veteran's muscle and back spasms had resolved, so did not give an opinion as to that symptom. The Board previously remanded this claim in June 2019 as there were outstanding private (non-VA) treatment records that might be relevant. Upon remand, the private treatment records were obtained. The Board's prior remand concluded that, at that time, the November 2014 VA examiner's opinion appeared probative to answer the complex medical questions at issue in this claim. The Board remanded only due to the missing VA medical records. Nonetheless, the RO upon remand obtained a new VA examination. This examination was conducted in September 2020, and the examiner diagnosed "back condition, including muscle spasms with pain." The examiner noted the Veteran's report of experiencing stiffness and pain in his back with occasional muscle spasms. The examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's back condition, including muscle spasms with pain, was considered a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The examiner also opined that the condition was less likely than not related to service as the examiner was unable to opine "without speculation that the Veterans and wife's statement aren't true." The examiner found that there was insufficient documentation to render a positive opinion and no evidence of chronicity of care, so a nexus was not established. The Board finds that this VA examiner's opinion is essentially nonprobative. First, the examiner found that the Veteran had a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology involving "back condition, including muscle spasms with pain." But, the examiner did not take into account the prior diagnoses of DJD and DDD L5-S1 with disc herniation and foraminal narrowing causing low back. This undermines the probative value of the opinion as it indicates the examiner based on the opinion on an incomplete medical history. Nonetheless, the VA examiner also reviewed x-rays from September 2020, which were unremarkable with no degenerative changes seen. A new VA examination is needed because the November 2014 VA examination found that the back spasms had resolved. The September 2020 VA examiner found that had stiffness and pain in his back with occasional muscle spasms. Based on the phrasing by the September 2020 examiner, it appears the noted symptoms were ongoing at the time of the examination. Furthermore, it is not clear why the diagnostic studies conducted by the September 2020 VA examiner were negative when the October 2012 and November 2014 studies were positive. Hence, overall, the evidence shows current diagnoses of DDD and DJD, plus symptoms of stiffness and pain in his back with muscle spasms. The September 2020 VA examiner found the Veteran's symptoms consistent with an undiagnosed illness, but did not accurately review the file. The November 2012 VA examiner found that the Veteran's DJD was not consistent with any exposure event in Southwest Asia, but did not address back spasms because the examiner found that those symptoms had resolved. Therefore, neither VA examination is entirely adequate to answer all the medical questions raised by the claim. As such, remand for a new VA examination is needed. 2. Service connection for memory loss as due to an undiagnosed illness. This issue is remanded as there was not substantial compliance with the Board's prior remand. Specifically, the Board remanded to obtain a VA examination to address whether his symptoms represented an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), either singly or in combination, due to his Persian Gulf service. Upon remand, a VA Mental Disorders examination was conducted in July 2020. With regard to memory loss, the VA examiner specifically and repeatedly stated that the evaluation for memory loss was outside the scope of normally performed examinations in the current environment. The examiner stated that an appropriate referral would be to Neuropsychology. The examiner noted that she had not been trained or certified to use the standard screening tool for memory impairment. Hence, the examiner stated, the etiology of memory loss could not be made. Where a medical professional admits that he or she lacks the expertise necessary to provide the opinion requested by the Board, the opinion itself creates the appearance of irregularity in the process resulting in the selection of that medical professional that prevents the presumption of competence from attaching, and the Board must therefore address the medical professional's competence before relying on his or her opinion. Wise v. Shinseki, 26 Vet. App. 517, 527 (2014). Here, the July 2020 VA examiner's opinion is not competent and did not give an opinion on memory loss. A different VA examiner in January 2021 performed a VA Mental Disorders examination, but did not refer to, identify, or address the complaints of memory loss. A third VA examiner in February 2021 found that the Veteran had mild memory loss as a symptom of his psychiatric condition, which the Board grants herein above. The Board finds, however, that the February 2021 VA examination does not fully resolves this issue. Both the July 2020 and February 2021 VA examiners were psychologists. The February 2021 examiner did not explain why she was competent to address memory loss where the July 2020 VA examiner had already stated that a specialist examination was needed. It could be due to the lack of training identified by the July 2020 VA examiner, but this is not made clear. Nor did the February 2021 VA examiner explain why an evaluation by a neuropsychologist was not necessary where the July 2020 VA examiner had already asserted that such was necessary. Hence, remand for an evaluation by a neuropsychologist is necessary. See Jones, 23 Vet. App. at 390. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his low back condition. The examiner is asked to address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent in the low back. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, does the Veteran nevertheless have any symptoms in the low back, to include muscle spasms, causing a functional impairment? Please provide a medical statement explaining whether the Veteran's disability pattern is: (a.) an undiagnosed illness (b.) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (c.) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (d.) a disease with a clear and specific etiology and diagnosis (e.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (f.) If no, is it at least as likely as not that any diagnosed disorderor functional impairment associated with the low backhad its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician qualified in neuropsychology or other related field to determine the nature and etiology of his claimed memory loss. The examiner is asked to address each of the following: (a.) Does the Veteran have a memory loss? In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If so, is his memory loss a symptom of his psychiatric condition? If not a symptom of his psychiatric condition, please provide a medical statement explaining whether the Veteran's disability pattern is: (a.) an undiagnosed illness (b.) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (c.) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (d.) a disease with a clear and specific etiology and diagnosis (Continued on the next page) (e.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (f.) If no, is it at least as likely as not that any memory loss condition had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.