Citation Nr: 21041610 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-63 187 DATE: July 9, 2021 REMANDED Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a chronic headache disability is remanded. Entitlement to service connection for a disability manifested by difficult childbirths is remanded. Entitlement to service connection for a menstrual disorder leading to a hysterectomy is remanded. Entitlement to service connection for a chronic fatigue disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1990 to September 1992, including service in Southwest Asia. The current appeal before the Board of Veterans' Appeals (Board) arose from a July 2015 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) inter alia, denied each of the current claims on appeal. In December 2018, the Board remanded the claims on appeal to the Agency of Original Jurisdiction for further evidentiary development. All service connection claims on appeal Initially, the Board notes that, while the Veteran was afforded VA examinations for her claimed disabilities, as discussed below, examination findings and/or opinions provided with respect to the etiology of each claimed disability are inadequate to adjudicate properly each of the claims on appeal. Accordingly, the Board finds that remand is warranted to afford the Veteran new VA examinations to determine the nature and etiology of these claimed disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, in the December 2018 remand, the Board expressed its concern with obtaining outstanding private treatment records pertinent to the claims on appeal. While the Board noted identified treatment records for migraines and records of private treatment rendered after the Veteran stopped receiving VA treatment, at this juncture, the Board further notes that the record indicates that she received additional private treatment and that corresponding records have not yet been associated with the claims file. Specifically, the record indicates that the Veteran underwent a hysterectomy in 2012. She also reportedly received treatment from a hand specialist in 2016. Further, in a February 2017 letter, the Veteran indicated that she received non-VA treatment during pregnancy, and, as previously noted by the Board, she reported receiving private treatment for her migraines after her separation from service. The hand specialist treatment records, and records associated with the hysterectomy, including the surgical report and pre- and post-surgical records, and her reported difficult pregnancies are particularly relevant to the claims on appeal, and have not yet been associated with the claims file. Thus, attempts to obtain these records, as well as a further attempt to obtain the Veteran's records associated with her migraines, should be made on remand. 38 C.F.R. § 3.159(c), (e). Left hand and low back disabilities In June 2015 VA examination reports, a VA examiner indicated that the Veteran did not have a diagnosed left hand disability, or a diagnosed thoracolumbar spine condition. Review of the record reveals that the Veteran complained of numbness and tingling of her left hand fingers during multiple VA clinical consultations. An April 2015 VA clinical report noted that the Veteran had sciatica pain related to her low back. A November 2015 X ray report revealed mild soft tissue swelling in the left dorsal wrist. Additionally, recently obtained private treatment records reflect the Veteran's complaints of left hand pain and back pain. Given the evidence of noted low back and left hand symptoms, including pain, and in-service evidence of back pain, left hand symptoms, and descriptions of the Veteran's duties during service, the Board finds that remand of these claims is warranted to afford the Veteran a new VA examination to obtain adequate etiology opinions considering all the evidence of record. Additionally, in the event that a disability is not diagnosed with respect to either claim, the examiner should determine whether the Veteran has either left hand or low back pain resulting in functional impairment such as to qualify for a disability, as contemplated by the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Saunders v. Wilkie, 886 F.3d 1356, 1362-1364 (Fed. Cir. 2018). Chronic headache disability With respect to the Veteran's claimed headache disability, in the June 2015 VA examination report, the examiner diagnosed migraines headaches and opined that the headaches clearly and unmistakably existed prior to the Veteran's service and were not aggravated beyond their natural progression by an in-service event, injury, or illness. While a headache disability was not noted on the Veteran's September 1990 enlistment examination, and while the Veteran indicated that she had had headaches in her report of medical history, the examiner noted that the headaches occurred at the age of 11 or 12, and that she had not had any since. Given this evidence, and evidence of occurrence of headaches during service, at this juncture, it appears that there is no clear and unmistakable evidence showing that the Veteran had a migraine headache disability that both preexisted her entry into active service and was not aggravated by her service. Accordingly, the Board finds that remand of this claim is required to obtain an opinion as to whether a chronic headache disability is etiologically related to the Veteran's service, to include the noted headaches during service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Menstrual disorder leading to a hysterectomy and a disability manifested by difficult childbirths With respect to the Veteran's claimed menstrual disorders, which led to her hysterectomy, and her claimed difficult childbirths, she asserts that she began having problems with heavy menstruation in service and that she had difficulties with her childbirths, including with her first child whose pregnancy reportedly began in service. Her service treatment records (STRs) reflect complaints of greater than usual vaginal discharge and assessments of cervicitis. In a June 2015 VA examination report, the examiner opined that the Veteran's hysterectomy was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner based the opinion on an absence of a pathologic gynecological condition noted in the Veteran's STRs, and an apparent history of menorrhagia due to multiple pregnancies. The examiner did not address the evidence of heavier than usual vaginal discharge or the cervicitis diagnoses during the Veteran's service. Additionally, while the examiner opined that birth or congenital defects present in the Veteran's oldest child were not the result of service, the examiner did not address whether the Veteran had a disability manifested by her reported difficult childbirths, and if so, whether there was any etiological relationship between such difficulties and her active service, given that the birth of her first child was the result of pregnancy that reportedly began during service. Chronic fatigue disorder With respect to the Veteran's claimed fatigue, while she was afforded a Gulf War VA examination in June 2015, the examiner did not specifically consider the Veteran's reported fatigue, to include specifically whether the fatigue was a symptom associated with an undiagnosed illness or medically unexplained chronic multisymptom illnesses (MUCMI) associated with the Veteran's service in Southwest Asia. The Board notes that the Veteran's VA and private medical records additionally reference symptoms that may be indicative of an undiagnosed illness or MUCMI, including sleep disturbance, unexpected weight change, and even her claimed headaches and gynecological conditions. 38 C.F.R. § 3.317(b). There is otherwise no opinion of record addressing the etiology of the Veteran's claimed fatigue. Thus, a remand is warranted to afford the Veteran an appropriate examination to consider her claimed fatigue. Accordingly, these matters are hereby REMANDED for the following action: 1. Ask the Veteran to provide VA with authorization, on VA Form 21-4142, to obtain all outstanding private treatment records pertinent to her claims on appeal, to include specifically records pertaining to her reported treatment from a hand specialist, her migraine headaches, and her difficult pregnancies, and records associated with her hysterectomy. Make two requests for all authorized records, unless it is clear after the first request that a second request would be futile. 2. Then, arrange for the Veteran to undergo new VA examination(s) of her left hand, low back, and for her claimed headaches. Any and all indicated studies and tests deemed necessary by the examiner(s) should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner(s) for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner(s) should: (a.) clearly identify all headache disabilities (to include migraines), and left hand and low back disabilities/conditionsto include any left hand and low back condition that is manifested by pain and results in functional impairment of earning capacitycurrently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability/condition, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include as a result of her reported in service duties of hauling and stacking flats of soda pop during service, and as a result of noted incidents of migraine headaches, low back pain, and left hand numbness/tingling during her service. For purposes of this opinion, the examiner should assume that the Veteran's headache disability did not preexist her entry into active service. In addressing the above, the examiner(s) is/are advised that the Veteran is competent to report the nature and onset of her headaches and joint pain symptomatology. The examiner(s) must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions as to the nature, onset, and continuity of these claimed disabilities. If lay assertions in any regard are discounted, the examiner(s) should clearly so state, and explain why. 3. Also, arrange for the Veteran to undergo an appropriate examination for her claimed menstrual disorder, leading to a hysterectomy, and a disability manifested by difficult childbirths. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all disabilities associated with the Veteran's claimed menstrual disorder, to include her hysterectomy and difficult child births (not including disabilities suffered by any of her children) currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) Also, determine if any symptoms associated with the claimed menstrual disorder are not associated with a known clinical diagnosis. (c.) For each identified disability, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include noted incidents of heavier than usual vaginal discharge, diagnoses of cervicitis, and her pregnancy that reportedly began in service. In providing these opinions, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's assertions pertaining to her difficult childbirths beginning with the pregnancy that reportedly began during her active service, and evidence and assertions of heavy menstruation beginning during service. The examiner is advised that the Veteran is competent to report her gynecological symptoms, and the onset of such symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 4. Also, arrange for the Veteran to undergo a VA Gulf War examination for her claimed fatigue by an appropriate examiner. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) determine whether the Veteran's complaints pertaining to fatigue, unexpected weight change, and sleep disturbance are associated with a known clinical diagnosis, and if so, whether any such diagnosis is related to or consists of a distinct and identifiable disability. (b.) For any symptoms pertaining to the Veteran's complaints of fatigue, unexpected weight change, and sleep disturbance, and any symptoms pertaining to gynecological disorders and headaches, as identified in prior examinations, are determined not to be associated with a known clinical diagnosis, the examiner should specify the relevant symptoms that have not been attributed to a known clinical diagnosis and should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the symptom(s) represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's service in Southwest Asia; (c.) For any symptoms pertaining to the Veteran's complaints that are associated with a diagnosed illness, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that any such illness constitutes a medically unexplained chronic multisymptom illness without conclusive pathophysiology or etiology (related to the Veteran's service in Southwest Asia), 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. (d.) For each distinct and identifiable disability associated with Veteran's complaints of fatigue, unexpected weight change, and sleep disturbance, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service; or is otherwise medically-related to the Veteran's service. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions, to include the Veteran's assertions as to the nature, onset, and continuity of relevant symptoms. In this regard, the examiner is advised that the Veteran is competent to report her symptoms and history, and her assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that she has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.