Citation Nr: 21030695 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-45 295 DATE: May 19, 2021 REMANDED The claim of entitlement to service connection for multiple sclerosis (MS), manifested by bowel problems, lack of stamina, grain lesions, electrical shocks in the lower extremities, and heat intolerance, is remanded. The claim of entitlement to service connection for chronic fatigue is remanded. The claim of entitlement to service connection for Grave's disease is remanded. The claim of entitlement to service connection for chronic headaches, to include as secondary to MS and/or Grave's disease, is remanded. The clam of entitlement to service connection for permanent eye damage, to include as secondary to MS, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to April 1991 and had subsequently dated service in the Army National Guard until discharge in May 1995. In February 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Veteran claims that service connection is warranted for MS, chronic fatigue, Grave's disease, headaches, and for permanent eye damage as secondary to MS. The Veteran testified that he first experienced symptomatology which was ultimately diagnosed as MS and Grave's disease while in service. His headaches also began during service. The evidence of record includes a May 1991 report of medical history. This examination was apparently conducted at the time of enlistment into the National Guard. At that time, the Veteran said that his history included a head injury. Specifically, it was noted that in 1979, he had been treated after a fall where he hit his head on the ground. Nothing was found at the time, and he said that he had no problems since. Of record is an October 2009 private report which reflects a diagnosis of MS. Private records in 2009 and 2012 include reports of headaches, though often associated with an upper respiratory infection. Additionally, there is an August 2013 private report noting MS, as well as mild fatigue. VA records dated in 2019 specifically reflect that the Veteran did not have headaches, although as noted below, chronic migraines were noted at a subsequent VA examination. In February 2020, the issues were remanded for additional evidentiary development and pursuant to that remand, the Veteran was provided with VA examinations in March 2020 to address the etiologies of his claimed disorders, to include MS, chronic fatigue, Grave's disease, headaches, and permanent eye damage. Unfortunately, as noted by the Board in an additional July 2020 remand decision, several of the examinations obtained were inadequate. Specifically, the VA examiner failed to adequately discuss the lay statements provided by the Veteran regarding the onset of his claimed conditions and his reports of continuity of symptomatology. At the hearing and at the examinations, the Veteran stated that he first experienced symptomatology which was ultimately diagnosed as MS, Grave's disease, and chronic headaches while in service. In the July 2020 remand, the Board determined that additional examinations had to be obtained regarding these issues. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). The requested VA examinations were conducted in February 2021. Regrettably, the VA examination reports appear cursory and without rationale to support any of the opinions reached. Moreover, as to the etiology of headaches, the examiner provided an opinion that no such chronic disorder was noted during service, and then later reported that headaches clearly and unmistakably preexisted service. This conflicting statement calls into question the entire report as current review reflects, that for the most part, the only rationale provided for the examiner's opinions as any of the claimed disorders was that "there [was] not enough evidence" to support a finding that the conditions were related to service. Also, there was no significant discussion of the Veteran's lay reports of in-service symptoms. Therefore, in addition to being inadequate, the examinations were not in substantial compliance with the Board's remand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Thus, regrettably, this appeal must again be remanded. The matters are REMANDED for the following action: 1. Obtain all updated relevant treatment records (private and VA) and associate them with the claims file. 2. After the development in (1) above is completed, the Veteran should be afforded an examination by a VA neurologist (who has not previously examined the Veteran, if possible) to determine the nature and etiology of his MS. If an in-person examination poses a hardship for the Veteran a telehealth examination may be scheduled. The claim file must be reviewed by the examiner and the examination report should state a review of the file was conducted. After an examination of the Veteran and after obtaining a full history of the symptomatology, the examiner should answer the following questions. In so doing, the examiner must consider the Veteran's reports of inception of symptomatology in service. (Note: the failure of the March 2020 and February 2021 VA examiners to discuss the Veteran's lay reports of in-service symptoms resulted in finding that the reports were inadequate. Moreover, the 2021 examination report included conflicting opinions and/or did not provide rationales for any conclusions reached. (a) Is it as least as likely as not (50% probability or greater) that the Veteran's MS is causally or etiologically related to active service? (b) If it is found that MS is directly related to service, the examiner should also state whether it is at least as likely as not that any of the claimed conditions, if present, were aggravated by MS. 3. After the development in (1) above, schedule the Veteran for an appropriate VA examination to determine the nature and etiologies of his Grave's disease and chronic headaches. If an in-person examination is a hardship to the Veteran, telehealth examinations may be scheduled. The claim file must be reviewed by the examiners. After an examination of the Veteran to include obtaining a full history of the disability(ies), the examiner should provide the following opinions: (a) whether it is at least as likely as not (50% probability or greater) that the diagnosed Grave's disease was caused or aggravated by service or the diagnosed MS? (b)whether it is at least as likely as not (50% probability or greater) that the Veteran has chronic headaches, and, if so, whether such were caused by or aggravated by service, the diagnosed Grave's disease or MS? As before, it is reiterated that in responding to the above questions, the examiner must consider the Veteran's testimony at the hearing that he first experienced symptomatology which was later diagnosed as MS, Grave's disease, and chronic headaches, while in service. Moreover, all opinions provided should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). (Continued on next page) 4. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hal Smith, 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.