Citation Nr: 21042473 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-40 065A DATE: July 13, 2021 REMANDED Entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is denied. Entitlement to service connection for headaches is remanded. Entitlement to service connection for right hand wrist strain is remanded. Entitlement to service connection for left hand wrist strain is remanded. Entitlement to service connection for disability of the left hand fingers is remanded. Entitlement to service connection for disability of the right hand fingers is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to a separate rating for residuals of concussion is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to March 1999. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Although the Board regrets the delay, upon review of the claims file, the Board believes that additional development on the claims on appeal is warranted. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. Entitlement to service connection for multiple joint pain, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness is remanded. Service connection can be established for a Persian Gulf veteran, such as the 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 by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" includes an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2). Manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to fatigue, muscle pain, joint pain, neuropsychological signs or symptoms, gastrointestinal signs or symptoms and abnormal weight loss. See 38 C.F.R. § 3.317(b). The record reflects complaints related to various joints. However, the evidence of record is inadequate to determine whether these symptoms are due to undiagnosed illness or are part of a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, and potentially subject to service connection under the provisions pertaining to Persian Gulf veterans discussed above. The Board notes that the Veteran has been afforded VA Gulf War examinations; however, his complaint of pain of multiple joints was not the subject of the examinations. Given the foregoing, the Board finds that medical opinions based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the claim for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness is remanded. The Veteran contends that his gastrointestinal disorder, diagnosed as ulcerative colitis, is due to his service in the Persian Gulf. Gastrointestinal signs or symptoms may be a manifestation of a qualifying chronic disability. 38 U.S.C. § 1117(g)(10). However, the regulations draw a distinction between certain types of gastrointestinal disorders. Some, designated as functional disorders, are eligible for presumptive consideration; others, designated as structural disorders, are not. 38 C.F.R. § 3.317(a)(2)(i)(B)(3); see also 76 FR 41696 (2011 amendment to the regulations providing that some diseases, "such as ulcerative colitis or Crohn's disease, and GERD are considered to be 'organic' or structural diseases there is inadequate/insufficient evidence to determine whether an association exists between deployment to the Southwest Asia theater of operations during the Gulf War and the development of structural gastrointestinal diseases"). However, even if the claimed gastrointestinal disorder does not qualify as an undiagnosed illness or medically unexplained chronic multisymptom illness, opinion is still warranted as to whether the claimed gastrointestinal disorder is due to in-service exposure to environmental hazards experienced in service, or is otherwise related to service. The Board notes that while the Veteran was afforded a VA examination in February 2020, that examiner address whether the Veteran's ulcerative colitis was related to in-service complaints of nausea, diarrhea, and gastroenteritis; however, the examiner did not address whether the disorder could be otherwise related to in-service exposures. Given the foregoing, the Board finds that additional medical opinion is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. 3. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness is remanded. The Veteran likewise contends that he suffers from fatigue as a result of his Persian Gulf service. The Veteran was afforded a VA examination pertaining to his claimed fatigue in July 2013, at which time the VA examiner indicated that the Veteran did not have diagnosis of chronic fatigue syndrome. However, it is unclear as to whether the Veteran's reports of fatigue are otherwise related to a known diagnosis. Therefore, the evidence of record is inadequate to determine whether the Veteran's fatigue is due to undiagnosed illness or are part of a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, and potentially subject to service connection under the provisions pertaining to Persian Gulf veterans discussed above. Given the foregoing, the Board finds that medical opinions based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the claim for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. 4. Entitlement to service connection for headaches is remanded. The Veteran contends that his headache disability onset in service. The Veteran was afforded a VA traumatic brain injury examination (TBI) in July 2016. That examiner noted that the Veteran's service treatment records indicated that he injured his head while fixing a truck in July 1991. The examiner opined that, as the Veteran checked "no" on reports of medical history in 1993 and 1997 for headaches, his headaches were less likely as not secondary to TBI. No other rationale was provided. The Board notes that service treatment records reflect numerous complaints of headaches, occasionally in conjunction with other symptoms such as sinus problems and nausea. The Veteran also reported frequent or severe headache on examination in November 1996. The Veteran has not been afforded a VA examination to determine whether the Veteran's headaches are otherwise related to service, outside of the reported TBI. Moreover, during the Veteran's May 2020 Board hearing, the Veteran also raised the theory that his headaches may be caused and/or aggravated by his service-connected PTSD. Given the lacking rationale of the 2016 examination as to whether the claimed headaches were related to the in-service TBI, and indication that the claimed may be otherwise related to service or to service-connected disability, the Board finds that remand is warranted to afford the Veteran an examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. 5. Entitlement to service connection for right hand wrist strain is remanded. 6. Entitlement to service connection for left hand wrist strain is remanded. 7. Entitlement to service connection for disability of the left hand fingers is remanded. 8. Entitlement to service connection for disability of the right hand fingers is remanded. On VA hand and fingers examination in July 2016, the examiner diagnosed right and left hand sprain. The examiner opined that the disabilities were less likely than not related to service, noting that there was no evidence in service treatment records, or in post-service records until 2013. He found the current bilateral hand condition to be more likely associated with post-service work activities or changes associated with the normal aging process. The examiner also diagnosed chronic bilateral wrist sprain and opined that the claimed wrist strain was less likely than not related to service. The examiner indicated that the right wrist condition described in service treatment records were more likely an acute, overuse condition that improved. A chronic left wrist condition was not identified in service treatment records and not in post-service records until 2013. Post-service records were silent for a chronic right wrist condition thereafter. His post-service employment required heavy physical labor and lifting. The Board notes, however, that service treatment records include various complaints related to the wrists and hands. In March 1998, the Veteran complained of right wrist pain for several weeks and was assessed with tendonitis. An August 1998 report documenting complaint of right hand and finger pain and decreased grip strength as a result of prolonged lifting of bombs and equipment. It was noted that he had chronic medial wrist pain despite medication and protective splinting. At that time, x-ray of the right hand was negative, and the Veteran was assessed with overuse syndrome, versus the less likely metacarpal stress fracture. Continued right wrist pain was documents in September 1998. He underwent injection of the right wrist in 1999. The Veteran reported right wrist injury, as well as left wrist injury on report of medical assessment in January 1999. During the Veteran's hearing, he testified that he picked up heavy bombs as part of his service duties and experienced repetitive motion injury to the hands and wrists as a result. He testified that he had continuous hand and wrist problems since service and sought private treatment after service, though many of those records were no longer available. The 2016 examiner did not adequately address the Veteran's report of overuse injury in service and based the opinion, in part, on the lack of documentation of post-service treatment until 2013, while the Veteran has reported continuous symptoms and/or treatment since service. Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. 9. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he is entitled to service connection for a cervical spine disability due to overuse and repetitive motion stemming from his in-service duties. Service treatment records indicated a report of neck pain on January 1999 report of medical history. The Board notes that the record does not reflect diagnosis of a cervical spine disorder; however, sometimes symptoms, even without an underlying diagnosis, can still constitute a current disability for VA compensation purposes, if such symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Board notes that the Veteran has not been afforded a VA examination pertaining to his claimed cervical spine disability. Given that the record reflects potential disability related to the Veteran's service, the Board finds that remand is warranted to afford the Veteran an examination with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. 10. Entitlement to a separate rating for residuals of concussion is remanded. In a May 2017 rating decision, the RO granted service connection for residuals of concussion, and combined the rating for the disability with the service-connected PTSD with sleep problems. The RO combined the rating based upon the VA examiner's assessment of overlapping symptomatology between the Veteran's PTSD and his TBI. The Veteran contends that the manifestations of his concussion should be separated from his PTSD. The Board notes that 38 C.F.R. § 4.124A, Diagnostic Code 8045 pertaining to rating TBI indicates that the three main areas of dysfunction that may result from TBI and may require evaluation include cognitive, emotional/behavioral, and physical impairment. In this regard, it appears that the RO has determined that the Veteran's emotional/behavioral impairment overlaps with the service-connected PTSD and does not warrant separate rating. However, cognitive or physical impairment may still be separately rated from the service-connected PTSD. As the Board is remanding for examination and opinion as to one of the claimed physical effects of the TBI, headaches, the Board finds these matters inextricably intertwined, inasmuch as a grant of service connection for headaches as residual of the concussion could affect the outcome of this claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Further consideration of the claim for separate rating for residuals of concussion must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Moreover, given that the Veteran was last afforded a TBI examination in July 2016, the Board believes that additional examination should be warranted for updated findings for determination as to whether separate rating for residuals of concussion is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA Gulf War/undiagnosed illness examination, with an appropriate examiner. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to state whether the Veteran's complaints of joint pain, fatigue, and gastrointestinal disorder are attributable to a known clinical diagnosis or to a disease process other than a known clinical diagnosis. If the examiner cannot identify a known disease or disability 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 medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms. If the Veteran's gastrointestinal/fatigue/joint 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, to include exposure to environmental hazards therein or include the reports of joint pain therein. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed headache disability. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should address whether 1) it is at least at likely as not that the Veteran's headache disorder had its onset in service or within one year of discharge, or is otherwise related to service, to include the report of TBI and complaints of headache therein; and 2) was caused by or aggravated by a service connected disability, to specifically include PTSD. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed neck disability. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all neck/cervical spine disorder(s). If an underlying diagnosis cannot be provided, the examiner is asked to determine whether the Veteran's neck pain causes functional impairment. The examiner should address whether it is at least at likely as not that the Veteran's neck disorder (or functional impairment) had its onset in service or within one year of discharge, or is otherwise related to service. The examiner is asked to specifically consider and address the Veteran's contentions regarding repetitive motion injuries of the neck as part of his duties in explosive ordinance disposal. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed right and left wrist and hand/fingers disabilities. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all wrist, hand/fingers disorder(s). The examiner should address whether it is at least at likely as not that the Veteran's wrist and hand/fingers disability had its onset in service or within one year of discharge, or is otherwise related to service. The examiner is asked to specifically consider and address the Veteran's contentions regarding overuse and repetitive motion injuries of the hand and wrist as part of his duties in explosive ordinance disposal. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 5. Schedule the Veteran for an examination of the current severity of his TBI. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In particular, the examiner should discuss private medical records submitted by the Veteran indicating cognitive impairment possibly attributable to TBI. The examiner should be sure to record the Veteran's lay assertions regarding his TBI and residual symptoms. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.