Citation Nr: 21040785 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-32 218 DATE: July 7, 2021 ORDER The claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. The claim of entitlement to service connection for vasomotor rhinitis is granted. REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as persistent depressive disorder and claimed as posttraumatic stress disorder (PTSD), anxiety, and insomnia, is remanded. The claim of entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness or as an unexplained chronic multi-symptom illness, is remanded. FINDINGS OF FACT 1. Probative evidence indicates that the Veteran's GERD had its onset during service and has continued since. 2. Probative evidence indicates that the Veteran's vasomotor rhinitis had its onset during service and has continued since. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for vasomotor rhinitis have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 19, 2002, to January 6, 2003, January 9, 2007, to June 16, 2007, July 5, 2009, to February 19, 2010, and February 5, 2011 to August 12, 2011. His 2007 service included support of Operation Iraqi Freedom. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) decision. In June 2021, the Veteran testified before the undersigned via a video teleconference hearing. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2020). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for GERD and service connection for vasomotor rhinitis. The Veteran contends that he has GERD and vasomotor rhinitis which had their onset during service. He has testified that he continues to suffer from these disabilities to the current day. Review of the record reflects that the Veteran is currently diagnosed with GERD and vasomotor rhinitis. See, e.g., VA examination reports in February 2019. Furthermore, the Veteran testified in 2021 that he first noted acid reflux and rhinitis while in Iraq and said that his symptoms continued to the present day. He primarily treated these conditions with over-the-counter medications during service and post service. Upon VA esophageal examination in February 2019, the Veteran related that approximately one month after entering Iraq, he began having acid reflux. Any type of food or water could induce this, but he did not report to sick call for the problem or seek medical care. He took Zantac with partial relief. Given the absence of any documentation of recurrent or persistent GERD symptoms from the time of deployment up to the present (approximately 11 years), the examiner opined that it was less likely than not that the Veteran's GERD was related to service in Southwest Asia. Upon VA sinusitis, rhinitis and other ear, nose, and throat disorders examination in February 2019, the Veteran stated that immediately after his tour in Iraq, he began having tearing, nasal congestion, and itchy eyes. These symptoms had continued up to the present day. He took over-the-counter medications for relief. The symptoms were not seasonal. Given the absence of any documentation of recurrent or persistent rhinitis symptoms from the time of deployment up to the present (approximately 11 years), the examiner opined that it was less likely than not that the Veteran's vasomotor rhinitis was related to service in Southwest Asia. Here, the Board finds the Veteran's assertions that GERD and rhinitis began during service and has continued since then to be credible. The Board acknowledges that the 2019 VA examiner opined that the Veteran's GERD and rhinitis were less likely than not caused by military service. However, upon review of the record and after resolving all doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's GERD and vasomotor rhinitis arose in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). For the above reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for GERD and vasomotor rhinitis is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). REASONS FOR REMAND Service connection for an acquired psychiatric disorder. It is claimed that service connection is warranted for an acquired psychiatric disorder, claimed as PTSD, anxiety, and insomnia. VA records dated in 2018 reflect diagnoses of anxiety and insomnia. In 2019, the Veteran was seen for depression and insomnia. VA records from 2018-2019 also reflect that the Veteran has been diagnosed with narcolepsy, periodic limb movement disorder, and rapid eye movement behaviour disorder. Upon VA mental health examination in February 2019, the examiner specifically noted that PTSD was not present, although it was acknowledged that the Veteran's in-service stressors were conceded. Persistent depressive disorder was diagnosed. The examiner opined that it was less likely than not depressive disorder was of service onset, to include combat exposure. For rationale, it was noted that the stated history correlated onset of mood symptoms with progression of sleep disorders. At the 2021 hearing, the Veteran testified as to stressors during service, to include being under mortar fire. He claimed anxiety and depression that was present during service and continued to the present day. Given that VA has conceded combat as an in-service stressor in this case and that the Veteran has endorsed multiple mental health symptoms, the claim must be remanded for a new VA examination and medical opinion to determine whether the Veteran has a diagnosed psychiatric disorder, to include depressive disorder and/or anxiety and/or PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Service connection for fibromyalgia. Pertinent laws and regulations as to this claim include the following: Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which 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 31, 2021; and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2020). A "qualifying chronic disability" means a chronic disability resulting from either (A) an undiagnosed illness; or (B) a "medically unexplained chronic multi-symptom illness" (MUCMI) such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2) (2020). Unlike an "undiagnosed illness," MUCMIs require a diagnosed illness without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs with features such as fatigue, pain, disability out of proportion to physical finding, and inconsistent demonstration of laboratory abnormalities. Id. Relevantly here, signs or symptoms of undiagnosed illness and/or MUCMIs include, but are not limited to fatigue, joint pain, muscle pain, neurological signs or symptoms, neuropsychological signs or symptoms, and sleep disturbances. 38 C.F.R. § 3.317(b) (2020). The Veteran reports that he has fibromyalgia. When examined by VA in February 2019, the Veteran reported pain in the wrists, elbows, and knees that began during his time in Iraq. The examiner concluded that the Veteran did not have a chronic disability pattern related to exposure to environmental hazards in Southwest Asia. Specifically, he did not meet the criteria for a diagnosis of fibromyalgia. The Veteran testified in 2010 that he continued to experience aches and pains in multiple joints, to include the back, shoulder, arms, and legs. The Board concludes that additional VA examination would be beneficial before addressing the claim of entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness or as an unexplained chronic multi-symptom illness. See Barr, supra. The Board does not find that the VA examiner in 2019 provided adequate reasons and bases for finding that a "chronic disability pattern" to meet the criteria for fibromyalgia was not indicated. It is noted that the Veteran has multi-joint pain, stomach issues, and diagnosed sleep disorders. Furthermore, he did not explain what criteria the Veteran needed to meet in or der to be diagnosed with fibromyalgia. 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. Then, arrange for the Veteran to undergo a VA examination by a VA psychologist or psychiatrist. The Veteran's claims file, including a copy of this Remand, should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the claimed psychiatric disorder since separation from service. Specifically address symptoms of sleep disturbances, irritability, exaggerated startle response, stressful memories of wartime experiences, and mild memory loss, as noted in the February 2019 VA examination report. (b) If the examiner concludes that a mental health diagnosis is not warranted, he/she is asked to explain why the identified symptoms do not warrant a diagnosis (c) Identify all currently diagnosed acquired psychiatric disorders, to include depressive disorder, anxiety, insomnia, and/or PTSD. **The examiner should note that VA has CONCEDED the Veteran's combat stressor. (d) For any currently diagnosed acquired psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset during active service or is related to any reported incident of service. In doing so, please address the Veteran's lay assertions and any other pertinent evidence regarding any conceded or verified stressor. Also address the VA examiner's 2019 opinion that the Veteran's current psychiatric manifestations are related to sleep disorders. A complete rationale should be provided for all opinions. 3. Then arrange for the Veteran to be examined by an appropriate specialist as to the claim for service connection for fibromyalgia. The Veteran's claims file, including a copy of this Remand, should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: Whether the Veteran's complaints of chronic fatigue, sleep disturbances, stomach issues, and joint and muscle pains are either the result of (A) an undiagnosed illness (or undiagnosed illnesses) or (B) a medically unexplained chronic multi-symptoms illness (MUCMI) (i.e., a diagnosed illness or diagnosed illnesses without conclusive pathophysiology or etiology). If the examiner cannot identify a known disease/diseases or disability/disabilities which causes these symptoms, the examiner should so state. The examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more). The examiner should also indicate whether the Veteran's symptoms and complaints represent a MUCMI defined by a cluster of signs or symptoms. If the Veteran's complaints are attributable to a known clinical diagnosis, the examiner should render an opinion as to whether such disability is at least as likely as not (e.g., a 50 percent or greater probability) etiologically related to active military service or events therein. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. Regarding the Veteran's joint and muscle pains, the examiner must address the February 2019 examination report wherein the Veteran reported multi-joint pain. Regarding the Veteran's sleep disorder, the examiner must address the 2018-2019 VA records which reflect diagnoses of narcolepsy, periodic limb movement disorder, and rapid eye movement behaviour disorder. Regarding the Veteran's stomach issues, the examiner must address the February 2019 diagnosis of GERD (now service-connected). (Continued on next page) 4. If upon completion of the above the issues remain denied, the app0eal 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.