Citation Nr: 22013992 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-15 577 DATE: March 11, 2022 ORDER An initial rating in excess of 30 percent for a heart disorder is dismissed. An initial compensable rating for scar, left upper chest, is dismissed. Service connection for tension headaches is granted. REMANDED Service connection for muscle and joint pain, to include fibromyalgia. Service connection for chronic fatigue syndrome (CFS). Service connection for hypothyroidism. FINDINGS OF FACT 1. In October 2021, prior to the promulgation of a Board decision, the Veteran withdrew the claims for increased ratings for a heart disorder and scar, left upper chest. 2. The Veteran's headaches had their onset during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an initial rating in excess of 30 percent for a heart disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of an initial compensable rating for scar, left upper chest, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to May 1992. The case is on appeal from a January 2017 rating decision. In October 2021, the Veteran testified at a Board hearing. At the hearing, the record was held open for 30 days. The Veteran subsequently submitted additional evidence. Withdrawn Claims 1. An initial rating in excess of 30 percent for a heart disorder. 2. An initial compensable rating for scar, left upper chest. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. During the Veteran's October 2021 Board hearing, the Veteran's representative stated that the Veteran is withdrawing the two increased rating claims on appeal, an initial rating in excess of 30 percent for a heart disorder and an initial compensable rating for scar, left upper chest. The Board finds that the Veteran's withdrawal of these issues is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In this regard, the withdrawal was made by an express statement of the Veteran's attorney representative at a Board hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, these issues are dismissed. 3. Service connection for tension headaches. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran contends that his tension headaches had their onset during service. The Veteran's service treatment records (STRs) show that he experienced significant headache symptoms throughout service. The Board notes the Veteran's May 1985 enlistment examination is silent for headaches. An October 1986 STR indicated headache symptoms for which the Veteran sought treatment. Later in October 1986, STRs showed ongoing headaches being reported and the Veteran's treatment being minimally helpful. A June 1989 STR indicated reports of headaches by the Veteran for 5 days. He sought treatment for his severe headaches and later in June 1989, he was admitted to the emergency room for headaches which were only mildly responsive to Tylenol, along with fever and vomiting. A November 1991 STR also showed headaches were reported by the Veteran. Following service, the Veteran underwent an October 1994 medical examination in which he reported headaches as a result of his Persian Gulf service. He reported his headaches are in his frontal area and do not radiate. An August 1996 medical record indicated the Veteran had headache symptoms which coincided with his sinus symptoms. Medical records throughout 1996 and 1997, including January 1997 and October 1997, showed the Veteran received consistent treatment for his headaches. The Board notes a VA treatment record dated October 2007 indicated the presence of headaches for the Veteran. Following the Veteran's June 2016 claim, he underwent a November 2016 VA examination in which he was diagnosed with tension headaches. The examiner indicated symptoms of constant head pain, pain on both sides of the head, nausea and vomiting. No etiology opinion was provided by the examiner. The Veteran was afforded an October 2021 Board hearing in which he reported he has headaches which had their onset during service and have continued presently. Thereafter, an October 2021 medical opinion from the Veteran's attending physician was submitted in support of the claim. She stated the Veteran's medical conditions, to include his chronic headaches, are more likely than not caused by and due to his active service, to include his service in the Gulf War. The Board determines that service connection for the Veteran's tension headaches is warranted. The record shows the Veteran experienced significant headache symptoms during service, including leading to an emergency room visit in June 1989. Following service, the Veteran continued to receive treatment for his headaches, including as early as October 1994. Moreover, his attending physician provided a medical opinion with a positive nexus. The Board finds the evidence has at least reached a level of equipoise with regard to the nexus element. Thus, when resolving reasonable doubt in the Veteran's favor, the Board finds his tension headaches had their onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for tension headaches is warranted. REASONS FOR REMAND 1. Service connection for muscle and joint pain, to include fibromyalgia. 2. Service connection for CFS. The Veteran contends that he has muscle and joint pain, to include fibromyalgia, and chronic fatigue syndrome which are related to service. The Veteran asserts his service in the Persian Gulf War led to these disorders. The Veteran's STRs show that in November 1991, he sought treatment for stomach cramps, nausea, vomiting and diarrhea. Additionally, the Board notes shortly following service, in October 1994, the Veteran sought treatment for fatigue. The Veteran was afforded a November 2016 VA examination in which the examiner found that no diagnoses of fibromyalgia or CFS were established. During the October 2021 Board hearing, the Veteran asserted that he has diagnoses of fibromyalgia and chronic fatigue syndrome which are associated with service, to include his Gulf War service. Further, the October 2021 medical opinion from the Veteran's attending physician indicated he is diagnosed with CFS and myalgia and the disorders are related to service, including such in the Gulf War. Despite the positive nexus opinion from the Veteran's attending physician, the rationale she provided is not adequate to grant these service connection claims. The Board finds remand is warranted to afford the Veteran a VA examination to determine the etiology of muscle and joint pain, to include fibromyalgia, and CFS, if diagnosed. 3. Service connection for hypothyroidism. The Veteran contends that he has hypothyroidism, which is related to service, to include his service in the Persian Gulf War. He stated during the October 2021 hearing that his hypothyroidism was diagnosed in 2005, but the etiology of the disorder is his service, including in the Gulf War. He further noted his symptoms of fatigue and weakness had their onset during service. The October 2021 medical opinion indicated the Veteran has hypothyroidism, which is related to service, including his Gulf War service. The Board finds based on the evidence of record, a VA examination and opinion are required to determine the etiology of hypothyroidism, if diagnosed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the remand, any outstanding VA and private treatment records should be requested. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from January 2017. 2. Request the Veteran provide authorization for VA to obtain private treatment records relevant to his claims, including from Dr. Kristen Bishop. Request any such identified records. 3. Schedule the Veteran for a VA examination by a qualified medical professional for an opinion to determine the nature and etiology of any diagnosed muscle and joint pain, to include fibromyalgia, and CFS. The examiner should identify whether diagnoses of fibromyalgia and/or CFS are established. If not, the examiner should opine whether the Veteran's symptoms, in particular his fatigue, represent an objective indication of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI), other than fibromyalgia and/or CFS. The medical evidence in support of the claims must be reviewed and discussed, including the October 2021 report from Dr. Bishop. 4. Schedule the Veteran for a VA examination by a qualified medical professional for an opinion to determine the nature and etiology of his hypothyroidism, if diagnosed. The examiner should identify whether a diagnosis of hypothyroidism is established. Any necessary testing should be performed. (Continued on the next page) If diagnosed, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypothyroidism had its onset during, or is otherwise related to, service, including his exposure to hazards during his Persian Gulf service. The medical evidence in support of the claim must be reviewed and discussed, including the October 2021 opinion from Dr. Bishop. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.