Citation Nr: 21039761 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-59 661 DATE: July 1, 2021 ORDER Entitlement to service connection for short term memory loss is dismissed. Entitlement to service connection for shortness of breath is dismissed. Entitlement to service connection for fibromyalgia is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to service connection for chronic fatigue syndrome (CFS) is granted. REMANDED Entitlement to an initial rating greater than 10 percent and to a rating greater than 50 percent from October 2, 2017 for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. During the April 2021 hearing before the Board, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the claims for service connection for short term memory loss and shortness of breath. 2. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War and has a diagnosis of fibromyalgia. 3. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War and has a diagnosis of headaches. 4. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War and has a diagnosis of IBS. 5. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War and has a diagnosis of CFS. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for short term memory loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for service connection for shortness of breath have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. § 3.317. 4. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. § 3.317. 5. The criteria for service connection for IBS have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. § 3.317. 6. The criteria for service connection for CFS have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. § 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1984 to June 1985 and from November 1985 to September 1993, including service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Withdrawal 1. Entitlement to service connection for short term memory loss is dismissed. 2. Entitlement to service connection for shortness of breath is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, during the April 2021 Board hearing, the Veteran indicated on the record that he wanted to withdraw his claims for service connection for short term memory loss and shortness of breath. Hearing Transcript, 2. The undersigned VLJ notified him that the decision, when issued, would list those two issues as dismissed and that the issues would not receive further consideration. Id. The Veteran indicated that he understood. Id.; See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the claims for service connection for short term memory loss and shortness of breath are withdrawn and there remain no allegations of errors of fact or law for appellate consideration as to these issues. The Board does not have jurisdiction to review them and the claims are dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air 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 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness, and (2) a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. There must also be objective indications of chronic disability, which 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). A MUCMI is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) functional gastrointestinal disorders (excluding structural gastrointestinal disease). The term MUCMI 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a MUCMI that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). 3. Entitlement to service connection for fibromyalgia is granted. 4. Entitlement to service connection for headaches is granted. 5. Entitlement to service connection for IBS is granted. 6. Entitlement to service connection for CFS is granted. The Veteran seeks service connection for fibromyalgia, headaches, IBS, and CFS to include as an undiagnosed illness attributed his service in Southwest Asia. For the reasons set forth below, the Board finds that service connection for these disabilities is warranted. VA has conceded the Veteran's Gulf war service and presence in Southwest Asia. 38 C.F.R. § 3.317(d)(2). The question is whether the Veteran's disabilities manifested to a degree of 10 percent or greater at any time after his Gulf War service. May 2018 VA examination reports confirm diagnoses of fibromyalgia, headaches, and IBS. VA treatment records show the Veteran was diagnosed with CFS in October 2017. Regarding fibromyalgia, VA treatment records show that in June 2015, the Veteran had symptoms suggestive of fibromyalgia. VA diagnosed fibromyalgia in October 2015. Per a November 2015 VA examination, the Veteran required continuous medication for control of fibromyalgia symptoms, which is the criteria for the minimum 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025. Therefore, the Veteran's diagnosis of fibromyalgia manifested to a degree of 10 percent disabling during the pendency of the claim and prior to December 31, 2021. Regarding headaches, VA treatment records show a diagnosis of intermittent headaches in June 2015. Subsequently dated VA treatment records show continued complaints and treatment for persistent or frequent headaches. The November 2015 VA examination indicates that the Veteran had characteristic prostrating attacks of headache pain once in every two months. Thus, the Veteran's headaches manifested to a degree of at least 10 percent under 38 C.F.R. § 4.124a, DC 8100, during the pendency of the claim and prior to December 31, 2021. Regarding IBS, the November 2015 VA examination shows the Veteran had signs and symptoms attributable to an intestinal condition, to include alternating diarrhea and constipation, occasional episodes of bowel disturbance with abdominal distress, and frequent episodes of exacerbations or attacks of the intestinal condition. VA treatment records indicate IBS was an active problem in June 2016 and the May 2018 VA examination confirmed a diagnosis of IBS. Based on the evidence, the Veteran has had IBS manifesting to at least a degree of 10 percent under 38 C.F.R. § 4.114, DC 7319 during the pendency of the claim and prior to December 31, 2021. Finally, regarding CFS, VA treatment records dated October 19, 2017 show the Veteran had a diagnosis of CFS. The Board acknowledges that the May 2018 VA examination report shows the Veteran did not have and had not had a diagnosis of CFS; however, the examiner noted under the medical history section that the Veteran had been diagnosed with CFS in 2016. In the remarks, the examiner said he found no medical record evidence of a diagnosis of CFS. It does not appear that the examiner considered the October 2017 VA treatment record. Giving the Veteran the benefit of the doubt, based on the VA treatment record, the Board finds he has had a diagnosis of CFS during the pendency of the claim. While the symptoms and functional impairment attributable to the Veteran's CFS are not clearly delineated in the treatment records, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's CFS manifested to a compensable degree within the required period. In sum, the Veteran had the requisite service in the Southwest Asia Theater of Operations during the Persian Gulf War, and he now has current diagnoses of fibromyalgia, headaches, IBS, and CFS which manifested to a compensable degree prior to December 31, 2021. Therefore, absent evidence to the contrary, service connection for these disabilities is presumed. See 38 C.F.R. § 3.317. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 10 percent and to a rating greater than 50 percent from October 2, 2017 for service-connected PTSD is remanded. The Veteran seeks increased ratings for his service-connected PTSD. During the April 2021 hearing before the Board, he testified that available medical records and examination reports do not address all of his PTSD symptoms. Hearing Transcript, 4. Essentially, he contends that his PTSD symptoms are worse than currently documented in the medical records. Accordingly, a remand is warranted to schedule an examination to determine the current severity of the Veteran's PTSD. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss. During his April 2021 hearing before the Board, he testified that during his November 2015 VA examination, the examiner had him wear a hearing aid in one ear. Id. at 15. Given the Veteran's testimony, the Board finds it necessary to remand this matter for an adequate VA examination to determine the nature and etiology of the Veteran's reported hearing loss. 3. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, to include as related to his service in Southwest Asia and as secondary to service-connected disabilities. During his April 2021 Board hearing, he asserted that his sleep apnea could be due to weight gain from service-connected PTSD and fibromyalgia and medications prescribed to treat both disorders. Id. at 26. VA examinations were conducted in November 2015 and May 2018 and both examiners stated that sleep apnea is not related to Gulf War exposures. In May 2018, the examiner stated that the sleep apnea was due to the Veteran's obesity and found that obesity was not caused by fibromyalgia due to being unable to work out. The examiner did not opine as to whether the Veteran's sleep apnea is due to or has been aggravated by his service-connected PTSD and/or fibromyalgia or medications prescribed to treat both disabilities. Further, regarding obesity, VA's Office of General Counsel (OGC) has issued a precedential opinion determining that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). While obesity may serve as an "intermediate step," it is not recognized by VA as a disease or disability in and of itself for compensation purposes. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). This "intermediate step" equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the Veteran's sleep apnea may be service connected on a secondary basis. A determination of proximate cause is one of fact, for determination by adjudication personnel. On remand, addendum opinions must be obtained addressing whether the Veteran's sleep apnea is due to or has been aggravated by his service-connected PTSD and/or fibromyalgia or medications prescribed to treat either disability. The examiner must also address obesity, and (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing sleep apnea; and (3) whether sleep apnea would not have occurred but for obesity caused by the service-connected disability. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records dated since June 2018. 2. Schedule an examination to determine the current severity of the Veteran's service-connected PTSD. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. All signs and symptoms of PTSD must be fully documented. 3. Schedule the Veteran for an examination to determine the nature and etiology of his bilateral hearing loss. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. All appropriate testing must be conducted to determine whether the Veteran has a hearing loss disability. After completing testing, the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss is related to service. Provide a rationale to support the opinion(s). 4. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran's obstructive sleep apnea. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is due to service-connected disabilities, to include PTSD and fibromyalgia, and to include medications prescribed to treat his service-connected disabilities? The examiner should specifically address the medications prescribed to treat PTSD and fibromyalgia. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea has been aggravated by service-connected disabilities, to include PTSD and fibromyalgia and to include medications prescribed to treat his service-connected disabilities? The examiner should specifically address the medications prescribed to treat PTSD and fibromyalgia. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is due to his weight gain since his separation from active duty service? The examiner should provide an opinion regarding the cause of the sleep apnea disability, a list of risk factors the appellant has is not adequate. (Continued on the next page) (d) Has the Veteran's service-connected fibromyalgia (and prescribed medications) alone, or in concert with his service-connected PTSD or other service-connected disabilities (and prescribed medications), at least as likely as not (50 percent likely) caused his weight gain. While obesity may not be service-connected, VA's Office of General Counsel has issued a precedential opinion determining it may act as an intermediate step between a service-connected disability and a current disability. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Each opinion must be supported with rationale. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.