Citation Nr: 21042277 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-12 431 DATE: July 12, 2021 REMANDED Entitlement to service connection for a sleep disorder to include as a manifestation of an undiagnosed illness or chronic multi-symptom illness due to exposure to Gulf War hazards is remanded. Entitlement to service connection for headaches to include as a manifestation of an undiagnosed illness or chronic multi-symptom illness due to exposure to Gulf War hazards is remanded. Entitlement to service connection for right knee condition to include as a manifestation of an undiagnosed illness or chronic multi-symptom illness due to exposure to Gulf War hazards is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision, which denied service connection for the Veteran's claims for sleep disorder, headaches, and a right knee condition. The Board denied the claims in June 2018. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued an order that vacated the Board's June 2018 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in the Joint Motion for Partial Remand (JMR) by the parties. On remand from the Court, the Board denied the claims again in a February 2020 decision. The Veteran appealed the February 2020 Board decision to the Court. In November 2020, the Court issued an order vacating the Board's February 2020 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in the Joint Motion for Remand (JPR) agreed upon by the parties. The matter now returns to the Board for further appellate consideration. 1. Sleep Disorder 2. Headaches The Board finds that a remand is necessary for the Veteran's headache and sleep disorder claims for an addendum medical opinion in order to comply with the November 2020 JMR. Notably, the parties to the November 2020 JMR stated that in the July 2019 JMR, the Board was instructed to specifically address the Veteran's lay statements "of in-service onset and post-service continuity of symptomology of headache and sleep disorder." See November 2020 JMR. Although, the Court found that the Board implicitly found the Veteran's statements credible, the parties to the JMR stated that the Board erred in not explaining its reliance on the November 2013 and December 2013 VA examination opinions which did not address the Veteran's lay statements. Id. The Court implicitly found the November 2013 and December 2013 opinions were inadequate, in so doing, the Court cited Miller v. Wilkie, 32 Vet. App. 249 (2020), which held that a VA medical opinion lacks probative value when the examiner fails to address a veteran's lay reports of his medical history and symptoms. Regarding the Veteran's claimed headaches, the November 2013 VA examiner opined that the Veteran's throbbing bitemporal and frontal headaches were less likely than not related to environmental hazards. See November 2013 VA Headaches Disability Benefits Questionnaire (DBQ). The December 2013 VA examiner provided a negative nexus opinion and reasoned that the Veteran's in-service headaches were related to upper respiratory infections and treated and resolved during service. The Board also notes that the November 2013 and December 2013 VA examiners did not address whether the Veteran's claimed headaches were related to her presumed exposure to environmental hazards associated with her service in the Southwest Theater of Operations during the Persian Gulf War. Regarding, the Veteran's sleep disorder claim, the November 2013 VA examiner opined that the Veteran's sleep disorder diagnosed as primary insomnia was not related to active service because she was not treated for a sleep problems during service. See November 2013 VA Mental Disorders DBQ. In a December 2013 VA addendum medical opinion, the examiner opined that the Veteran's sleep disorder was not related to service because her service treatment records (STRs) were silent for any sleep problems, instead the examiner attributed her sleep disorder to post-service job duties. See December 2013 VA Medical Opinion DBQ. In so doing, the examiner did not address the Veteran's lay statements that her sleep disorder began in service and that she continued to have service. The examiner also impermissibly relied on the lack of service records as evidence that the Veteran did not have any treatment or symptoms of sleep disturbance during service. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Additionally, the examiners did not address whether the Veteran's sleep disorder is related to her exposure to environment hazards while service in the Southwest Theater of Operations during the Persian Gulf War. The Board finds that the November and December 213 VA examinations were also inadequate because the examiners did not address the Veteran's lay reports of onset and continuity of symptomology. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Thus, based on the foregoing reasons, the Board finds that the Veteran's claims for headaches and sleep disorder require remand for an addendum medical opinion. 3. Right Knee Condition The Board also finds a remand is warranted for the Veteran's right knee condition in order to comply with the November 2020 JMR. Specifically, the Veteran's claim was denied because the Veteran did not have a diagnosed right knee condition or functional impairment due to right knee pain. See February 2020 Board Decision. However, the parties to the November 2020 JMR agreed that the Board did not adequately address the November 2013 VA examiner's notation of right knee functional loss including pain on movement, swelling, and interference with standing, sitting, and weight-bearing. See November 2020 JMR. While the November 2013 VA examiner found no objective evidence of a right knee diagnosis, the examiner did not reconcile this conclusion with the functional loss noted on examination as pain on movement, swelling, and interference with standing, sitting, and weight-bearing. As such, the November 2013 medical opinion is incomplete as it fails to provide necessary information to decide the claim. Notably, the November 2013 VA examiner opined that pain without a diagnosed or identifiably underlying malady was not considered a disability. See November 2013 VA Knee and Leg Conditions DBQ. However, this finding directly contradicts the precedential Federal Circuit decision decided after the examination in Saunders v. Wilkie, which found that pain alone can constitute a disability when it results in functional impairment. 886 F.3d 1356, 1368 (Fed. Cir. 2018). As such, a remand is necessary to address whether the Veteran's right knee symptoms rises to the level of a functional impairment of earning capacity under Saunders v. Wilkie, 886 F. 3d 1356, 1363 (Fed. Cir. 2018). Additionally, the Veteran's representative argued that the Veteran's right knee condition is a manifestation of an undiagnosed illness resulting for Gulf War exposure. See December 2019 Appellate Brief. He also asserted that under 38 U.S.C. § 1117, joint and muscle pain may be manifestation of an undiagnosed illness. However, no VA examination has addressed the Veteran's contention that her right knee symptoms are related to an undiagnosed condition or due to her Gulf War exposure. The Board notes that the claims file does not include any private or VA treatment records. Such evidence if obtained may include relevant information for the Veteran's claims. As such, with the assistance of the Veteran in identifying relevant treatment records, the VA should request any records identified by the Veteran. The matters are REMANDED for the following action: 1. The Regional Office (RO) should obtain any outstanding private or VA treatment records relating to the Veteran's claims with the help of the Veteran, following the procedures set forth in 38 C.F.R. § 3.159. any records obtained should be associated with the claims file. 2. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim including private treatment records, X-ray reports, and/or nexus opinion(s). 3. After completing above development, obtain an addendum opinion from an appropriate VA clinician to determine the nature and origin of the Veteran's headaches and sleep disorders. It is up to the discretion of the examiner as to whether an examination is warranted. The examiner must review the claims folder and acknowledge such review in the his or her report. If the examiner decides an examination is necessary, he or she should perform or obtain any indicated studies or examinations. The examiner is asked to address the following: (a.) Identify the Veteran's currently diagnosed sleep disorder including insomnia. (b.) For each diagnosed sleep disorder, opine whether it is at least as likely as not (50 percent probability or greater) that such condition is related to the Veteran's active service including lay statements of the Veteran's symptoms and as due to service in Southwest Asia. (c.) If a diagnosis cannot be rendered concerning the Veteran's reported sleep symptoms, the VA examiner is asked to state whether the Veteran's reported symptoms are symptoms of a diagnosable disorder, a manifestation of undiagnosed illness, a chronic multi-symptom illness with partially understood etiology and pathophysiology, or a medically unexplained chronic multi-symptom illness. (d.) If either the etiology or pathophysiology is inconclusive, the examiner must state so. These opinions must be based on the individual Veteran's circumstances rather than the illnesses as they are understood in the general public. (e.) Are there objective indications (including symptoms reported by the Veteran) that the Veteran has a chronic headache disorder? If so, determine whether any identified signs or symptoms can be attributed to a known clinical diagnosis with both a conclusive pathophysiology and etiology. (f.) Is it as likely as not that any chronic headache disorder which the Veteran now has, if any, had its onset during active service? (g.) Is it as likely as not that any chronic headache disorder which the Veteran now has, if any, manifested within one year after her January 1999 discharge from active service? (h.) Is it as likely as not that any chronic headache disorder which the Veteran now has, if any, have been continuously symptomatic since military service (please note that only manifestation of symptomatology and not treatment is required)? (i.) For those symptoms and conditions of headaches that cannot be attributed to a known clinical diagnosis with conclusive pathophysiology and etiology, determine if there is affirmative evidence that the headaches were was caused by a supervening condition or event that occurred since the Veteran's separation from service. (j.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's claimed right knee symptoms, headache, and sleep disorder, when considered together, are due to a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI) or an undiagnosed illness that is defined by a cluster of signs or symptoms due to the Veteran's Persian Gulf service. 4. Schedule the Veteran for a VA knee examination. The claims file must be made available to the examiner(s) for review, and all indicated tests should be performed. Each examiner is requested to take a history from the Veteran as to the onset and progression of her right knee condition. Upon examination, the examiner should address the following: (a.) Identify any right knee disability found to be present since the date of the claim (i.e., since July 2012). If the Veteran's knee pain cannot be attributed to an underlying diagnosis, the examiner should address whether any such condition manifests in functional impairment such as limitation of motion, weakness, instability, or the like. (A condition manifested by pain and functional impairment is in fact a disability for VA purposes.) (b.) Please state whether the symptoms of the Veteran's right knee injury are attributable to a known clinical diagnosis or a chronic multisymptom illness of partially understood etiology and pathophysiology (c.) For any symptoms that are not attributable to a known clinical diagnosis or a chronic multisymptom illness of partially understood etiology and pathophysiology, the examiner should opine as to whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by joint pain or any other identified symptoms, that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. A "medically unexplained chronic multi-symptom illness" is defined as 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. (d.) For any right knee disability identified or functional impairment of right knee, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran's active service, to include the Veteran's reports that she injured her right knee as a result of running miles on hard asphalt and marching with heavy ruck sack (See VA Form 9). (e.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's right knee condition or functional impairment of right knee had its onset or manifested within one year of the Veteran's discharge in January 1999? The examiner(s) is/are advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner(s) reject(s) the Veteran's reports of symptomatology, he or she must provide a reason for doing so. In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran's lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran's statements and all other relevant evidence make sense from a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.