Citation Nr: 21030422 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-19 578 DATE: May 18, 2021 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a right arm disorder is remanded. Entitlement to service connection for a left arm disorder is remanded. Entitlement to service connection for a recurrent sinus disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to December 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by a VA Regional Office (RO). In April 2020, this matter was previously before the Board, where it was remanded for additional development. Specifically, the Board requested that the RO investigate the location of the Army's 12th Aviation Brigade in 1990 and 1991. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board's prior remand, the RO granted service connection for posttraumatic stress disorder (PTSD) with a disability rating of 100 percent effective May 19, 2011. This award is considered to be a full grant of the benefit sought as it covers the entire period on appeal and is the highest schedular evaluation allowed under the law for PTSD. 38 CFR §§ 4.125, 4.126, 4.130. Therefore, this claim will not be further addressed by the Board in this decision. Additionally, the Veteran's claim for a total disability rating based on individual unemployability (TDIU) is found to be moot and will not be further addressed in this decision. Here, the Veteran is only service connected for one disability: PTSD. Thus, during the entire period on appeal, the TDIU claim is rendered moot because there is no possibility that a separate TDIU award would impact entitlement to any other benefit, such as special monthly compensation (SMC) as the claims on appeal only seek service connection and not an increased rating. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). Although the Board regrets the additional delay, remand is again needed for the remaining claims on appeal before they may be considered. 1. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. 2. Entitlement to service connection for a respiratory disorder is remanded. 3. Entitlement to service connection for a right arm disorder is remanded. 4. Entitlement to service connection for a left arm disorder is remanded. 5. Entitlement to service connection for a recurrent sinus disorder is remanded. The service connection claims in this matter hinge upon a finding of whether or not the Veteran had service in "Southwest Asia" within the statutory definition of that term. Notably, although the Veteran's military personnel records (to include his DD-214) do not place him in Southwest Asia, he is in receipt of a Military commendation for services as a courier, providing support and morale to the 12th Aviation Brigade in that region. For his part, the Veteran asserts he supported the 12th Aviation Brigade in Dhahran, Saudi Arabia during Operation Desert Shield. At the outset, the Board notes that extensive development on this issue has been completed as directed by the Board's prior April 2020 remand and his service in Southwest Asia has since been conceded by RO. In fact, evidence of record shows that the Military Records Research Center of the Army has confirmed the claimed "stressor" event by the Veteran that a friend in Saudi Arabia was killed while he was assigned to the 12th Aviation Command in Saudi Arabia. The Veteran is also in receipt of a service personnel record dated December 1991 indicating that he was recommended for a commendation medal for, among other things, services as a courier providing support and morale to the 12th Aviation Brigade in Dhahran, Saudi Arabia. Additionally, the record contains a buddy statement from September 2011 by a fellow servicemember, himself a member of the 1st Battalion, 187th Infantry Regiment of the 101st Airborne Division stationed in Saudi Arabia during Operation Desert Shield from September 1990 to April 1991, who reported seeing the Veteran "on occasion" describing the Veteran as "a courier at that time". Lastly, a March 2021 rating decision by the RO granted service connection upon confirmation of the Veteran's stressor for PTSD and assigned a 100 percent rating effective from the date of the claim. As such, the Board sees no reason to contradict these findings based on the extensive research and evidence of record. Therefore, the Veteran's service in the Southwest Asia Theatre of operations during the Persian Gulf War is conceded. Hence, he is entitled to the presumptions applicable to claims by Persian Gulf veterans. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). In June 2016, the Veteran was afforded several medical opinions and VA examinations for his claimed conditions. The examiner opined that the Veteran's various claimed conditions were not related to service nor were they related to service in Southwest Asia. However, the examiner never opined as to the etiology or pathophysiology of the Veteran's sinusitis, chronic fatigue syndrome, undiagnosed respiratory condition, and bilateral elbow conditions now diagnosed as epicondylitis in relation to any environmental hazard exposure in Southwest Asia. Nor did the examiner opine as to whether these conditions may be considered a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). The examiner's sparse rationale focused on a combination of there being no diagnosis for some of the claimed conditions, a lack of evidence in the Veteran's service treatment records (STRs), and the absence of post service treatment records to support chronicity. For instance, the examiner opined that "there is no current diagnosis of a respiratory condition and thus no medical opinion to opine". This rationale was repeated again for the Veteran's claimed chronic fatigue syndrome. The rationale for the remaining conditions of sinusitis/rhinitis and bilateral epicondylitis were based entirely on the lack of documentation in the claims file with no reference to reported lay statements, potential MUCMI consideration, or reports of exposure to environmental hazards. In short, the examiner's medical opinion appears to be conclusory in nature without adequate supporting rationale and without evidence that the examiner fully considered the Veteran's lay statements, to include testimony made during the April 2014 hearing about the onset of symptoms shortly after deployment with exposure to environmental hazards. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). As such, the Board finds the June 2016 examiner's opinions to be inadequate for adjudicative purposes. Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Therefore, the Veteran's claims must once again be remanded for further development. Additionally, since the Veteran's service in the Southwest Asia theatre of operations has been conceded, there has been no adequate medical opinion of record that has considered whether the Veteran's claimed conditions are a manifestation of an undiagnosed illness or a MUCMI under 38 C.F.R. § 3.317. Therefore, while these issues are remanded as noted above, the RO should also ask the VA examiner to provide an opinion as to the presumptions afforded to veterans who served in Southwest Asia as noted in 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his sinusitis/rhinitis, chronic fatigue syndrome, bilateral epicondylitis, and respiratory condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. For each claimed condition: sinusitis/rhinitis, chronic fatigue syndrome, bilateral epicondylitis, and a respiratory condition, the examiner(s) is(are) asked to provide the responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both 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 form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each 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. E) 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 diagnosed condition was incurred in, or is otherwise related to, his active service in Southwest Asia to include reported exposure to environmental hazards namely pit fires, oil fires, and sand particles. A complete rationale must be provided for all opinions expressed. 2. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated, with consideration of all evidence of record. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.