Citation Nr: 21042644 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-05 893 DATE: July 13, 2021 ORDER The claim of entitlement to service connection for a gastrointestinal disorder is granted. The claim of entitlement to service connection for a thyroid disorder is denied. The claim of entitlement to service connection for an anterior neck scar, residual of thyroglossal duct cyst removal is granted. REMANDED The claim of entitlement to service connection for a respiratory disorder is remanded. The claim of entitlement to service connection for sleep disturbances is remanded. The claim of entitlement to service connection for a headache disorder is remanded. FINDINGS OF FACT 1. The Veteran has a chronic gastrointestinal disorder, manifested by abdominal pain and bowel disturbance, due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. 2. The Veteran's thyroid disorder did not originate in service and is not otherwise etiologically related to service. 3. The probative evidence of record shows that the Veteran's anterior neck scar, residual of thyroglossal duct cyst removal, was incurred during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a gastrointestinal disorder, due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, are met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 1131; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for establishing entitlement to service connection for a thyroid disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing entitlement to service connection for an anterior neck scar, residual of thyroglossal duct cyst removal have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Navy from November 1982 to July 1989, July 1989 to November 1994, August 2001 to November 2001, December 2002 to June 2004, and July 2006 to August 2007, including service in the Southwest Asia Theater of Operations during the Persian Gulf War. In February 2019, the Board remanded the case for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness, or from a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below, or from any diagnosed illness which the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. The symptoms must 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. By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Objective indications of chronic disability include 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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The signs and symptoms which may be manifestations of undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. A review of the Veteran's service personnel records confirm that he had service in the Southwest Asia theater of operations during the Persian Gulf War. As such, he is a Persian Gulf veteran. See 38 C.F.R. § 3.317 (e). 1. Entitlement to service connection for a gastrointestinal disorder. The Veteran seeks service connection for a gastrointestinal disorder manifested by abdominal pain. March 1993 service treatment records documented treatment for gastritis manifested by symptoms of indigestion and mild palpable tenderness in the epigastric region. In April 1993 he complained of stomach pain and constipation. He reported mild relief with antacids and Tagamet. In April 1993, he underwent an upper gastrointestinal radiography due to complaints of abdominal pain with some increased eructation. That same month, the Veteran reported that his abdominal pain and upset stomach were gone. In 1994, he endorsed frequent indigestion and stomach/intestinal trouble. Pursuant to the February 2019 Board remand, the Veteran was afforded a VA examination in October 2019. The examiner noted the Veteran's in-service complaints of indigestion and stomach/intestinal trouble. The Veteran reported that he currently experienced constant mild abdominal pain. The examiner determined that there was no objective evidence to warrant any intestinal diagnosis. During a November 2019 VA examination, the Veteran reported gastric pain since the mid-1990s. The examiner acknowledged that the Veteran received a diagnosis of gastritis in the 1990s. The examination reported showed that his current symptoms were frequent episodes of bowel disturbance with abdominal distress, as well as episodes of exacerbations and/or attacks of the intestinal condition, which is consistent with a 10 percent disability rating under 38 C.F.R. § 4.114, Diagnostic Code 7319. The examiner found that the Veteran's gastrointestinal disorder was an undiagnosed illness or a diagnosable but medical unexplained chronic multisymptom illness of unknown etiology. Therefore, the examiner concluded that his gastrointestinal disorder was related to his service in Southwest Asia. An addendum opinion was provided in August 2020. The examiner stated that the Veteran's gastrointestinal disorder was not directly related service. The examiner based the opinion on the lack of continued care. The examiner continued to find that there was no evidence to support an intestinal or stomach diagnosis. Upon review of the record, the Board finds that service connection is warranted for a chronic gastrointestinal disorder, manifested by abdominal pain and bowel disturbance. As discussed above, the Veteran was treated for abdominal pain and constipation during service. During the appeal period, he reported subjective complaints of a gastrointestinal disorder since service. However, a review of the objective evidence has not supported a finding of a gastrointestinal disorder and clinicians have been unable to provide a definitive etiology for his symptoms. In this regard, the October 2019 and November 2019 VA examiners acknowledged the Veteran's gastrointestinal symptoms and concluded that there was no clinical diagnosis. Moreover, the November 2019 VA examiner found that his gastrointestinal symptoms were manifestations of an undiagnosed illness and/or a diagnosable but medically unexplained chronic multisymptom illness of unknown etiolgoy. While VA recognizes that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are the most common diagnoses which would come within the definition of "medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms," VA also recognizes that there is no exclusive list and may include other conditions such as abdominal pain. As there is no conclusive pathophysiology or etiology shown for the Veteran's abdominal pain and bowel disturbance, and consistent with the stated intent of the Persian Gulf War legislation discussed above, the Board resolves reasonable doubt in favor of the Veteran and awards service connection for a gastrointestinal disorder manifested by abdominal pain and bowel disturbance, of unknown etiology on a presumptive basis under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a thyroid disorder. The Veteran seeks service connection for a thyroid disorder. June 1993 service treatment records indicated that the Veteran a thyroid cyst removal during service. An April 2012 service treatment record noted that the Veteran had been on Synthroid for years following an episode of thyroiditis. Pursuant to the Board remand, the Veteran was afforded a VA examination in October 2019. The examiner noted the Veteran's in-service thyroglossal duct cyst removal. The Veteran denied thyroid dysfunction around the time of the June 1993 procedure. In the mid-2000s, the Veteran had a workup for fatigue and was diagnosed with hypothyroidism. The examiner confirmed a diagnosis of hypothyroidism and concluded that it is a diagnosable chronic multisymptom illness with a partially explained etiology. The examiner opined that the Veteran's hypothyroidism is not related to a specific exposure event during service in Southwest Asia. The rationale was that exposure events during service in Southwest Asia are not known to cause hypothyroidism. The examiner also gave the following opinion: Considering history related by the claimant, current exam findings and medical records review[,] the currently claimed hypothyroidism is not incurred in service or caused by the thyroglossal duct cyst removal in 1993. Service records showed in [June 1993] Veteran had a thyroglossal duct cyst removed from his neck. Service records did not show any onset or treatment of thyroid condition. Hypothyroidism was first noted in 2012 based on medical records. Excision of the thyroglossal cyst is not known to cause any thyroid dysfunction. Based on medical records, the currently claimed hypothyroidism is not incurred in service. Based on the above, the Board finds that the preponderance of the evidence is against service connection for the Veteran's hypothyroidism. Significantly, there is no competent medical evidence in the record that links his hypothyroidism to military service. In this regard, the only competent medical opinion of record addressing the etiology of his hypothyroidism was provided by the October 2019 VA examiner. The Board affords significant probative value to the VA medical opinion as it was supported by adequate rationale and a thorough review of the evidence. There is also no medical opinion of record to contradict the VA examiner's opinion. To the extent that the Veteran contends that his hypothyroidism is related to service, the Board finds that such an opinion is more suited to the realm of medical, rather than lay, expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no indication that the Veteran has had any specialized education, training, or experience in determining the etiology of hypothyroidism. Accordingly, the Board finds that the requirement for a nexus has not been met. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. Therefore, service connection for hypothyroidism is denied. 3. Entitlement to service connection for an anterior neck scar, residual of thyroglossal duct cyst removal. As discussed above, the Veteran underwent an excision of a thyroglossal duct cyst during his active duty service in June 1993. An October 2019 VA scars examination found that the Veteran had a left anterior neck scar associated with his June 1993 thyroglossal duct cyst removal. Accordingly, the Board finds that service connection is warranted for an anterior neck scar, residual of thyroglossal duct cyst removal. REASONS FOR REMAND 1. The claim of entitlement to service connection for a respiratory disorder is remanded. The record suggests that the Veteran's respiratory disorder preexisted his April 2012 period of ACDUTRA or INACDUTRA service. Specifically, April 2012 service treatment records indicated that the Veteran experienced an exacerbation of his respiratory symptoms during a period of ACDUTRA. At that time, he reported that he was diagnosed with asthma one year prior, for which he was prescribed an Albuterol inhaler. He reported that he seldomly used the inhaler until he experienced an increase in symptoms in April 2012. The October 2019 VA examination report noted that the Veteran required daily use of Flovent and Albuterol to treat his asthma. VA medical opinions were obtained in July 2013, October 2019, and November 2019. The examiners opined that the Veteran's asthma was less likely than not related to his service in Southwest Asia. The November 2019 VA examiner also found that it was at least as likely as not that the Veteran's asthma was related to service. The examiner stated that there was an evident diagnosis and/or clear clinical symptoms description listed in the service treatment records. The examiners did not discuss whether the Veteran experienced a permanent increase in his asthma beyond the natural progress during the April 2012 period of ACDUTRA or INACDUTRA. See Donnellan v. Shinseki, 24 Vet. App. 167, 172-74 (2010). Therefore, in light of the April 2012 service treatment records suggesting that the Veteran's asthma was aggravated during a period of ACDUTRA or INACDUTRA, the Board finds that an additional VA medical opinion is necessary. 2. The claim of entitlement to service connection for sleep disturbances is remanded. The Veteran underwent a VA examination in November 2019. It was noted that the Veteran received a diagnosis of sleep apnea in 2012. The examiner opined that the Veteran's sleep apnea is a disease with a clear and specific etiology and diagnosis. Therefore, it is less likely than not caused by any environmental exposures during service in Southwest Asia. It appears that the examiner's opinion was based on whether the Veteran was entitled to presumptive service connection pursuant to 38 C.F.R. § 3.317. However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Unfortunately, the examiner did not provide sufficient rationale concerning whether the Veteran's sleep apnea is directly related to environmental exposures in Southwest Asia. The examiner also opined that the Veteran's sleep apnea was at least as likely as not incurred in or caused by service. The rationale was that there is evidence of a diagnosis and clear clinical symptoms description in the service treatment records. Unfortunately, the examiner did not provide sufficient rationale to support the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination opinion must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two). Specifically, the examiner did not identify which service treatment records provided a diagnosis and/or a clear clinical symptoms of sleep apnea. A review of the service treatment does not reveal a diagnosis of sleep apnea. Accordingly, the Board finds that a remand is required to obtain another VA medical opinion. 3. The claim of entitlement to service connection for a headache disorder is remanded. A remand by the Board confers upon the claimant the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure such compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2019, the Board remanded the claim to obtain a VA examination to determine the nature and etiology of the Veteran's headaches. The Board instructed the VA examiner to determine whether the Veteran's headaches were due to a known clinical diagnosis. If so, the examiner was instructed to render an opinion as to whether it is at least as likely as not that the disorder had its onset during the Veteran's active duty service or is otherwise related to service, to include environmental exposures in Southwest Asia. If the examiner found that the headache symptoms were not due to a known clinical diagnosis, then the examiner was instructed to determine whether the symptoms were an undiagnosed illness or a medically unexplained chronic multisymptom illness. Pursuant to the Board remand, the Veteran underwent VA examinations in October 2019 and November 2019. The October 2019 VA examiner diagnosed tension headaches and found that it was a disease with a clear and specific etiology and diagnosis. The October 2019 VA examiner opined that his tension headaches were not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The rationale was that exposure events during service in Southwest Asia is not known to cause tension headaches. During the November 2019 VA examination, the Veteran stated that his headaches started in the mid-1990s after he returned from deployment in Southwest Asia. The November 2019 VA examiner concluded that the Veteran's headaches were due to an undiagnosed illness or a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Therefore, the examiner concluded that his headaches were presumed to be caused by service in Southwest Asia. Unfortunately, the VA examiners did not provide an opinion as to whether the Veteran's tension headaches had its onset during his active duty service, or is otherwise related to such service. Therefore, a remand is required to obtain another medical opinion. The Board acknowledges the November 2019 VA examiner's favorable opinion that the headaches were due to an undiagnosed illness or a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology. However, presumptive service connection under 38 C.F.R. § 3.317, requires that the symptoms 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. At the November 2019 VA examination, the Veteran stated that his headache symptoms started after he returned from his deployment in Southwest Asia. Additionally, the evidence does not show that the headache disability manifested to a degree of 10 percent or more. Specifically, the October 2019 and November 2019 VA examination reports indicated that the Veteran did not have characteristic prostrating attacks of headache pain. Pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 used to rate migraines, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. Accordingly, based on the evidence of record, the Veteran would not be entitled to presumptive service connection under 38 C.F.R. § 3.317. However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, a remand is required to comply with the February 2019 remand directives. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § § 3.159 (e). 2. Verify through official sources, including any financial records through DFAS, the Veteran's April 2012 period of ACDUTRA or INACDUTRA in the U.S. Navy Reserve. All records and/or responses received should be associated with the claims file. 3. Then, the AOJ should obtain an addendum medical opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's respiratory disorder. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether it is at least as likely as not that the Veteran's respiratory disorder increased in severity AND worsened beyond the natural progress of the disability during the April 2012 period of ACDUTRA or INACDUTRA. 4. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to: (a) State an opinion as to whether there is a 50 percent probability that the disorder began in or is otherwise related to the Veteran's active duty service, to include as due to environmental hazards in the Persian Gulf. (b) If there are objective manifestations of a disorder manifested by sleep symptoms that are not due to a known clinical diagnosis, the examiner should identify those manifestations and state an opinion as to whether there is a 50 percent probability or higher that the manifestations are due to an undiagnosed illness or chronic multisymptom disability of unknown etiology. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 5. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's headaches. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to: (a) State an opinion as to whether there is a 50 percent probability that the disorder began in or is otherwise related to the Veteran's active duty service, to include as due to environmental hazards in the Persian Gulf. (b) If there are objective manifestations of a disorder manifested by headache symptoms that are not due to a known clinical diagnosis, the examiner should identify those manifestations and state an opinion as to whether there is a 50 percent probability or higher that the manifestations are due to an undiagnosed illness or chronic multisymptom disability of unknown etiology. In so opining, the examiner should consider and discuss the conflicting medical opinions of record. Specifically, the October 2019 VA medical opinion that the Veteran's headache disorder is a disease with a clear and specific etiology, and the November 2019 VA medical opinion that the Veteran's headaches were due to an undiagnosed illness or a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The examiner must also consider and discuss the Veteran's lay statements of regarding the onset of his headache symptoms. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 6. After completing the development requested above, readjudicate the Veteran's claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.