Citation Nr: 21031943 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-20 931 DATE: May 25, 2021 REMANDED Entitlement to service connection for chronic constipation is remanded. Entitlement to service connection for hypothyroidism is remanded. REASONS FOR REMAND The Veteran served as a member of the United States Army, with active duty service from October 2003 to October 2004 and then from December 2008 to December 2010, which includes service in Southwest Asia. The Veteran also had additional Reserve service in the Military. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). In January 2020, the Veteran appeared and testified before the undersigned Veterans Law Judge in a Video Conference Hearing. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. The matter was previously before the Board in April 2020 and remanded for further development including scheduling the Veteran for VA examinations in accordance with the provisions of McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter has returned to the Board for further appellate review. During the pendency of this appeal, in a November 2020 rating decision, service connection for pes planus was granted with an evaluation of 50 percent effective May 14, 2014. The Veteran has not in response, separately appeal either the rating or effective date assigned for her pes planus. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As such, the claim for service connection for pes planus is no longer on appeal to the Board. 1. Entitlement to service connection for chronic constipation is remanded. Service connection may be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). The term Persian Gulf War veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Veteran was afforded a VA examination in February 2021 pursuant to the Board's remand directives. The examiner remarked that the Veteran's chronic constipation is "a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology." See February 2021 C&P Examination. This statement indicates that the Veteran may be entitled to presumptive service connection for her chronic constipation under the provisions of 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Military records note that the Veteran was ordered to serve active duty in support of Operation Enduring Freedom in an imminent danger area of Afghanistan from October 2003 to July 2004. See Certificate of Release or Discharge from Active Duty, See Also DPRIS Response. Unfortunately, service in Afghanistan is not considered service in Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317(a). See Cox v. McDonald, 28 Vet. App. 318 (2016). During Board Hearing, the Veteran testified that she experienced the onset of chronic constipation during service in Kuwait. See January 2020 Hearing Transcript. However, it is not clear from the record whether the Veteran served in in Kuwait to satisfy the provisions of 38 C.F.R. § 3.317 (e)(2). Thus, remand is necessary for clarification from the Veteran; to obtain any outstanding personnel records indicative of her service in Kuwait; and to conduct any other necessary development to determine whether the 38 C.F.R. § 3.317 provisions apply to the Veteran. 2. Entitlement to service connection for hypothyroidism is remanded. The June 2020 and February 2021 VA examiners opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiners based their opinions largely on the lack of a thyroid condition in service and the fact that the Veteran was not diagnosed with hypothyroidism until 5 years post service. The February 2021 examiner further noted that in the face of Veteran's current euthyroid state, she continues to be morbidly obese which would give credence to a more genetic basis for obesity and not due to hypothyroidism. See June 2020 and February 2021 C&P Examinations. In February 2021 the Veteran's private neuropsychologist, F. W. N., Ph.D. opined that it is more likely than not that the Veteran's hypothyroidism is due to her service-connected post-traumatic stress disorder (PTSD). His rationale was that PTSD and other psychological trauma-based diagnoses have physical and psychological components, and that many peer-reviewed scientific studies have associated mental disorders including PTSD to thyroid dysfunction. See February 2021 Medical Treatment Record - Non-Government Facility. The Board finds that the medical opinions of record are inconsistent as to whether the Veteran's hypothyroidism is related to service to include as secondary to her service-connected PTSD. Thus, remand is required to obtain an addendum medical opinion that reconciles the conflicting medical findings related to the Veteran's hypothyroidism. The matters are REMANDED for the following action: 1. Request the Veteran to clarify any service in Kuwait. 2. Complete any necessary development to determine if the Veteran's service in Kuwait can be confirmed, to include referral to the appropriate research entity. Then complete a memorandum delineating all steps taken to assist the Veteran and then affirming or denying that the Veteran served in Kuwait or other parts in the Southwest Asia theater of operations. Upload the memorandum to the claims file. 3. Obtain an addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's hypothyroidism. The need for another VA examination is left up to the discretion of the examiner. The examiner must opine as to: (a). whether the Veteran's hypothyroidism is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. (b). whether the Veteran's hypothyroidism is at least as likely as not (50 percent or greater probability) CAUSED or AGGRAVATED by the service-connected PTSD. The examiner is asked to review the claims file to become familiar with the pertinent medical history. The examiner is asked to review and reconcile the conflicting opinions from the June 2020, February 2021 VA examination reports and the February 2021 Private nexus opinion. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. 3. After completion of the above and any other development deemed necessary, review the expanded record, and adjudicate the issues on appeal. If the claims remain denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.