Citation Nr: 21041598 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-65 812 DATE: July 9, 2021 ORDER The appeal for an increased rating for allergic rhinitis has been withdrawn. The appeal for an increased rating for fibromyalgia has been withdrawn. Effective December 09, 2010, an increased initial rating of 30 percent (but no higher) is granted for service-connected irritable bowel syndrome. Service connection is granted for an undiagnosed illness manifested by chronic dermatitis due to service in the Persian Gulf. Service connection is granted for a sleep disorder. Service connection is granted for an undiagnosed illness (manifested by heart palpitations and irregular heartbeat) due to service in the Persian Gulf. Service connection is granted for headaches. Service connection is granted for an acquired psychiatric disorder (to include major depression, anxiety, and stress). REMANDED Service connection for a tumor of the right pelvic bone is remanded. Service connection for blurred vision is remanded. Service connection for neuropathy (including as secondary to a tumor of the right pelvic bone) is remanded. Service connection for vertigo is remanded. FINDINGS OF FACT 1. At her June 2021 Board hearing, the Veteran and her representative indicated she wished to withdraw her appeal for an increased rating for allergic rhinitis. 2. At her June 2021 Board hearing, the Veteran and her representative indicated she wished to withdraw her appeal for an increased rating for fibromyalgia. 3. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that the symptoms associated with her irritable bowel syndrome (including chronic severe pain, bloating, constipation) have been severe for the entire appeal period (beginning on December 09, 2010, which is the date of her initial claim) despite her attempts to treat these symptoms with change in diet, medications, and supplements. These symptoms more closely approximate the rating criteria for a 30 percent rating. 4. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War Era; the Veteran has a chronic dermatitis condition that is at least as likely as not a manifestation of an undiagnosed illness or chronic multi-symptom illness due to her Persian Gulf service. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that her skin condition began in service and has persisted since that time. See March 1994 service treatment record and June 2021 Board hearing testimony. 5. Affording the Veteran the benefit of doubt, the evidence is at least evenly balanced for and against ("equipoise") finding that her currently diagnosed sleep disorder (mild obstructive sleep apnea and chronic sleep maintenance insomnia) began in service and has persisted since that time. See March 2015 private treatment record. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that the symptoms associated with her sleep disorder began during active duty service and have persisted since that time, thus establishing a causal connection to service. The Board acknowledges that a March 2011 VA examination attributed the Veteran's sleep disorder to her major depressive disorder, but that examiner did not take into account or address the mild sleep apnea diagnosis; therefore, the opinion is not based on an accurate factual premise and the Board cannot assign significant probative value to that opinion. 6. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War Era. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that she has had observable symptoms of intermittent heart palpitations since serving in Bahrain. The evidence also shows that these symptoms have not been attributable to any known diagnosis. Affording the Veteran the benefit of doubt, the evidence is at least evenly balanced for and against (in "relative equipoise") finding that the Veteran's observable symptoms of heart palpitations and irregular heartbeat are at least as likely as not a manifestation of an undiagnosed illness or chronic multi-symptom illness due to her Persian Gulf service. 7. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that her headaches (a condition which is observable by a lay person) and associated symptoms began during active duty service and have persisted since that time, thus establishing a causal connection between the headaches and military service. See May 1993 service treatment record and June 2021 Board hearing testimony. 8. The Veteran is currently diagnosed with major depressive disorder, generalized anxiety disorder, and attention deficit hyperactivity disorder. See March 2011 VA examination and July 2020 private treatment record. The March 2011 VA examiner provided a positive causal link opinion ("nexus") that the Veteran's acquired psychiatric disorder is at least as likely as not caused or aggravated by service and provided an adequate rationale to support this opinion. Further, at her June 2021 Board hearing, the Veteran provided competent and credible testimony that symptoms associated with her current psychiatric disorder began during service and have persisted since that time. Therefore, service connection for an acquired psychiatric disorder is warranted. CONCLUSIONS OF LAW 1. The criteria have been met for withdrawal of the appeal for an increased rating for allergic rhinitis by the appellant (or her authorized representative). 38 U.S.C. § 7105; 38 C.F.R. § 20.205 19.55. 2. The criteria have been met for withdrawal of the appeal for an increased rating for fibromyalgia by the appellant (or her authorized representative). 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. Effective December 09, 2010, the criteria have been met for an increased initial rating of 30 percent (but no higher) for service-connected irritable bowel syndrome. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 7319. 4. The criteria have been met for service connection for an undiagnosed illness manifested by chronic dermatitis. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1155, 5107(b); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317. 5. The criteria have been met for service connection for a sleep disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria have been met for service connection for an undiagnosed illness manifested by heart palpitations & irregular heartbeat. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1155, 5107(b); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317. 7. The criteria have been met for service connection for headaches. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 8. The criteria have been met for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to December 1997, with service in Bahrain between 1992 to 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from June, July, and September 2012 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In June 2021, a Board hearing was held before the undersigned Veterans Law Judge. Increased Rating 1. The appeals for increased ratings for allergic rhinitis and fibromyalgia are 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. The withdrawal of an appeal must be either in writing or on the record at a hearing. Id. Withdrawal can be by the Veteran or by his representative. Id. At the June 2021 Board hearing, the Veteran and her representative indicated they wished to withdraw the appeals for increased ratings for allergic rhinitis and fibromyalgia. Accordingly, the Board finds these appeals are withdrawn and dismissals are warranted. 2. Effective December 09, 2010, an increased initial rating of 30 percent (but no higher) for service-connected irritable bowel syndrome is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal an increased initial rating for service-connected irritable bowel syndrome is granted. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. To prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(d)(2). Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, 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. See 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf veterans under 38 C.F.R. § 3.317, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. Id. The term "objective indications of chronic disability" includes 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). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest). Under 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). In making all determinations, the Board must fully consider the lay assertions of record. A veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 3. Service connection for an undiagnosed illness manifested by chronic dermatitis is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for an undiagnosed illness manifested by chronic dermatitis is granted. 4. Service connection for a sleep disorder is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service-connected for a sleep disorder is granted. 5. Service connection for an undiagnosed illness (manifested by observable symptoms of heart palpitations and irregular heartbeat) is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for an undiagnosed illness (manifested by observable symptoms of heart palpitations and irregular heartbeat) is granted. 6. Service connection for headaches is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for headaches is granted. 7. Service connection for an acquired psychiatric disorder is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND 8. Service connection for a tumor of the right pelvic bone is remanded. At her June 2021 Board hearing, the Veteran provided competent and credible testimony that while service in Bahrain, she routinely went to burn pits to dispose of documents and, further, that she was provided no protective gear to wear during this task. To date, no VA examination has been afforded the Veteran that takes this information into account and the Board finds that the nature of the disability, along with testimony about exposure to burn pits and potential associated toxins, establishes an indication of a potential causal link (nexus) to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an "indication" of a potential causal link (nexus) to service). Therefore, a remand is needed in order to obtain an adequate VA examination. 9. Service connection for blurred vision is remanded. The Veteran has not been afforded a VA examination for her blurred vision condition. The Board is unable to assess the Veteran's claims fully without a VA examination, therefore a remand is required. See McLendon, 20 Vet. App. at 83. 10. Service connection for neuropathy (including as secondary to a tumor of the right pelvic bone) is remanded. Because secondary service connection is reported as a theory of entitlement, this issue is inextricably intertwined with the Veteran's other remanded issues; accordingly, it must be remanded as well. 11. Service connection for vertigo is remanded. The March 2011 VA examiner recommended further diagnostic testing for this condition and that testing does not appear to have been completed. When a medical examiner identifies specific information that is missing from the claims file and states that this information would help to provide a conclusive opinion, such a statement triggers VA's duty to assist. See Daves v. Nicholson, 21 Vet. App. 46, 51 52 (2007) (VA medical examiner's statement that the requested opinion could not be provided without an autopsy triggered the Secretary's duty to investigate whether autopsy could be reasonably obtained); see e.g., Watai v. Brown, 9 Vet. App. 441, 444 (1996) (private physician's comment that the lack of access to veteran's medical records made a linkage opinion impossible put VA on notice of the need for further evidentiary development); Green v. Derwinski, 1 Vet. App. 121, 123 (1991) ("It is... impossible to square the Secretary's duty to assist... with [VA's] failure to follow up the suggestion by the examining physician that a review of the veteran's records 'might help clarify the diagnostic doubt.'"). Therefore, remand is required to conduct further diagnostic testing and obtain the results. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's right pelvic bone tumor and any residuals. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right pelvic bone tumor and residuals present during the appeal period (from December 2010). (b.) For each right pelvic bone tumor and residuals diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include as due to burn pit exposure while service in the Persian Gulf? Please explain why. (c.) The Board notes for the examiner that at her June 2021 Board hearing, the Veteran testified that or the 2 years when she was in Bahrain, she would go at least twice a month to the burn pit they used to get rid of the classified papers, and she would burn them for 2-3 hours. Also, while she was burning, she could smell the paper burning and she was provided no protective gear while engaging in this task. (d.) The Board also draws the examiner's attention to a March 2011 VA examination in which the examiner opined this condition was part of an undiagnosed illness, and that the Veteran's neuropathy (also on appeal for service connection) was directly related to the pelvic bone tumor. The examiner is also reminded that, by law, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's blurred vision. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all blurred vision disabilities present during the appeal period (from December 2010). (b.) For each blurred vision disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include as due to burn pit exposure while service in the Persian Gulf? Please explain why. (c.) The Board notes a September 1992 service treatment record noted the Veteran "fell out" during morning muster. The examiner is also reminded that, by law, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 4. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's vertigo. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all vertigo disabilities present during the appeal period (from December 2010). (b.) For each vertigo disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include as due to burn pit exposure while service in the Persian Gulf? Please explain why. (c.) The examiner should conduct any diagnostic testing deemed necessary, including those recommended by the March 2011 VA examiner. The examiner is also reminded that, by law, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.