Citation Nr: 21042228 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-49 977 DATE: July 12, 2021 REMANDED The issue of entitlement to service connection for chronic fatigue syndrome (CFS), claimed as chronic-multisystem illness, is remanded. The issue of entitlement to service connection for fibromyalgia, claimed as chronic-multisystem illness, is remanded. The issue of entitlement to service connection for irritable bowel syndrome (IBS), claimed as functional GI disorders and chronic-multisystem illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1990 to October 1999, including service in Saudi Arabia from October 1990 to March 1991. In July 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2018, the Board remanded this matter for additional development. For the reasons outlined below, the Board finds that remand is again needed. 1. Entitlement to service connection for CFS, claimed as chronic-multisystem illness. 2. Entitlement to service connection for fibromyalgia, claimed as chronic-multisystem illness. 3. Entitlement to service connection for IBS, claimed as functional GI disorders and chronic-multisystem illness. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that there may be outstanding treatment records to be obtained and associated with the claim file. The Veteran submitted correspondence in October 2019, which included treatment records from U. of C.H. The Veteran stated that "[t]he other provider I have been using recently has suddenly stopped communication with me for some odd reason, and was receiving acupuncture [P.M.H.A.]. I may end up trying to find another one, and in fact almost positive will do this in the very near future as well. I'm not sure if you can find their records through the VA or not, and if not just don't include them." Following this correspondence, the Board does not see that private treatment records were requested or obtained. Accordingly, given the Veteran's statements, upon remand, the Board asks that the Veteran be allowed the opportunity to identify the private treatment he has received, and to provide consent for VA to obtain the identified records. Thereafter, the AOJ should then attempt to obtain the identified records. In addition, the Board finds that new VA opinions are needed. The Board acknowledges the VA opinions obtained in December 2019; however, the Board finds that new opinions are needed for the following reasons. First, regarding the claimed fibromyalgia, the examiner indicated that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." (Emphasis added). However, in the rationale to the opinion, the examiner wrote that there were "[n]o diagnoses in or out of service no diagnoses at today's exam." The Board does not understand how the examiner can find that the claimed disability "clearly and unmistakably existed prior to service," if there were "no diagnoses in or out of service . . ." Given these seemingly contradictory findings, the Board finds that a new opinion is needed. The Board notes that similar seemingly contradictory opinions are provided for the claimed IBS and CFS. For example, for IBS, the examiner also indicates that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." (Emphasis added). However, the rationale provided does not explain why the IBS clearly and unmistakably existed prior to service. In fact, the examiner writes that "on review exam no signs or symptoms of diarrhea . . ." Similarly, regarding the claimed CFS, the examiner also indicated that the claimed condition "clearly and unmistakably existed prior to service," but then wrote "[n]o diagnoses of chronic fatigue in or out of service." Given these seemingly contradictory findings, the Board asks that new opinions be obtained. In addition, the Board finds that new VA opinions are needed that "address the April 2014 VA examination and June 2014 VA opinion. . ." a request that was specifically made by the Board in the December 2018 remand. The Board also asks that an examiner address the following notations in the Veteran's service treatment records: right lower abdominal pain (see STR, November 1997); complaints of, inter alia, fatigue, sleep disturbance, and concentration difficulty since Gulf War (see STR, September 1994); treatment for, inter alia, fatigue and sleep disturbance (see STR, March 1995); changes in sleep/dreams, muscle pain/weakness, stomach pain, diarrhea, constipation (see STR, June/July? 1994); fatigue (see STR, June 1994); possible stomach infection (see STR, July 1997); complaints of feeling "weak and tired more than normal" and "sometimes will wake up every 4 to 6 hours" (STR); symptoms of, inter alia, fatigue, diarrhea, sleep disturbance (STR, Clinical Assessment Form, September 1994). Finally, the Board notes that there is a service treatment record labelled DA Form 3888-3 that is difficult to read in the electronic docket. If a more legible copy is available, it should be uploaded upon remand. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. The Board notes that the Veteran submitted correspondence in October 2019, which included treatment records from U. of C.H. The Veteran stated that "[t]he other provider I have been using recently has suddenly stopped communication with me for some odd reason, and was receiving acupuncture [P.M.H.A.]. I may end up trying to find another one, and in fact almost positive will do this in the very near future as well. I'm not sure if you can find their records through the VA or not, and if not just don't include them." Following this correspondence, the Board does not see that private treatment records were requested or obtained. Accordingly, given the Veteran's statements, upon remand, the Board asks that the Veteran be allowed the opportunity to identify the private treatment he has received, and to provide consent for VA to obtain the identified records. Thereafter, the AOJ should then attempt to obtain the identified records. In addition, the Board notes that there is a service treatment record labelled DA Form 3888-3 that is difficult to read in the electronic docket. If a more legible copy is available, it should be uploaded upon remand. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for VA examinations for the claimed disabilities on appeal. For each disability, an examiner should provide an opinion that addresses the following: The examiner is asked to examine and evaluate the Veteran for any chronic disability pattern. The examiner is then asked to provide a medical statement explaining whether the Veteran's disability pattern is (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as, CFS, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases); (c) a diagnosable chronic multisymptom illness with a partially understood etiology; or (d) a disease with a clear and specific etiology and diagnosis. Then, for each disability pattern or diagnosis, the examiner is asked to address the following: (a) Whether it is at least as likely as not that the disability clearly and unmistakably pre-existed service. (b) If there is clear and unmistakable evidence that the claimed disability preexisted service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that it was caused by the Veteran's active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). (c) If it is determined that the disability did not clearly and unmistakably preexist service, then the examiner should address whether it is at least as likely as not that it was caused by the Veteran's active duty service. The Board specifically requests that the examiner address the April 2014 VA examination and June 2014 VA opinion, as well as address the contention that the Veteran's IBS pre-existed service (see Videoconference hearing, July 2017). In addition, the Board asks that the examiner address the lay statements of record, including the Veteran's and his spouse's lay statements made at the July 2017 videoconference hearing regarding his symptoms and that the Veteran takes medication for his fatigue syndrome and fibromyalgia. The Board also asks that an examiner address the following notations in the Veteran's service treatment records: right lower abdominal pain (see STR, November 1997); complaints of, inter alia, fatigue, sleep disturbance, and concentration difficulty since Gulf War (see STR, September 1994); treatment for, inter alia, fatigue and sleep disturbance (see STR, March 1995); changes in sleep/dreams, muscle pain/weakness, stomach pain, diarrhea, constipation (see STR, June/July? 1994); fatigue (see STR, June 1994); possible stomach infection (see STR, July 1997); complaints of feeling "weak and tired more than normal" and "sometimes will wake up every 4 to 6 hours" (STR); symptoms of, inter alia, fatigue, diarrhea, sleep disturbance (STR, Clinical Assessment Form, September 1994). The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case 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 K. Foster, 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.