Citation Nr: 22014199 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-38 678 DATE: March 11, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder however diagnosed, including as secondary to service-connected irritable bowel syndrome (IBS) and including as due to service in Southwest Asia, is remanded. Entitlement to service connection for memory problems, including as secondary to service-connected irritable bowel syndrome (IBS) and including as due to service in Southwest Asia, is remanded. Entitlement to service connection for a skin condition, to include as due to service in Southwest Asia, is remanded. Entitlement to service connection for a neurological disability, including as secondary to service-connected IBS and including as due to service in Southwest Asia, is remanded. Entitlement to service connection for a joint and muscle disability, including as secondary to service-connected IBS and including as due to service in Southwest Asia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1989 to August 1993, including service in the Southwest Asia during the Persian Gulf War. The Veteran is a Persian Gulf War Veteran. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2015 and September 2018 rating decisions issued a Regional Office (RO) of the Department of Veterans Affairs (VA). Issues on Appeal Previously, issues of entitlement to service connection for an anxiety disorder and of entitlement to service connection for memory problems were denied in a September 2018 Board decision. The Veteran appealed the denials to the Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs. Under the JMPR, the Board was required to determine whether the Veteran's "anxiety disorder and sleep apnea, with accompanying symptoms of memory problems and fatigue, are [medically unexplained chronic multi-symptom illnesses (MUCMIs)] and whether presumptive service connection is warranted." In February 2020, the Board denied the Veteran's claims of entitlement to service connection for anxiety disorder, memory problems, sleep apnea, and chronic fatigue syndrome. Thereafter, the Veteran appealed only the denial of entitlement to service connection for an anxiety disorder and for memory problems. In November 2020, the Court approved a second JMPR which vacated and remanded these denials of service connection. The claims returned to the Board and, in February 2021, the Board remanded them for additional development. As this development is completed, the issues are returned for further appellate review and they are addressed in detail below. The issues of entitlement to service connection for a skin condition, entitlement to service connection for a joint and muscle and entitlement to service connection for a neurological and psychological disorder, (all including as secondary to service-connected IBS and as due to service in Southwest Asia), were initially before the Board in February 2021. At that time the Board remanded the claims and directed additional development. As this development is completed, these issues are returned for further appellate review and they are addressed in detail below. Here, the issues of entitlement to service connection for an anxiety disorder and entitlement to service connection for a neurological and psychological disorder address overlapping symptoms and possible diagnoses. Accordingly, the claim of entitlement to service connection for anxiety disorder is expanded to include service connection for an acquired psychiatric disorder however diagnosed and including as secondary to service-connected IBS and as due to service in Southwest Asia. The issue is amended, above and below, to reflect this broader scope. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to a neurological disorder, including as secondary to irritable bowel syndrome (IBS) and as due to service in Southwest Asia, remains on appeal. It is addressed separately from the claim seeking service connection for a psychological disorder, which is included as a psychiatric disorder explained above. An October 2021 rating decision allowed service connection for a sinus disability and a headache disability. This represents a full grant as to the benefit claimed as to these issues. The claims of entitlement to service connection for a sinus disability and for a headache disability are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Presumptive Service Connection Based on Persian Gulf War Service in Southwest Asia Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that 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 which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (MUCMI), such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS, that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) addressed the definition of a MUCMI under 38 C.F.R. § 3.317(a)(2)(ii) and held a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317(a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood in the context of the claimant's unique circumstances. 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood, the condition may constitute a MUCMI. Additional Legal Principles VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder however diagnosed, including as secondary to service-connected irritable bowel syndrome (IBS) and including as due to service in Southwest Asia, is remanded. 2. Entitlement to service connection for memory problems, including as secondary to service-connected irritable bowel syndrome (IBS) and including as due to service in Southwest Asia, is remanded. In February 2015, the Veteran submitted a claim seeking entitlement to service connection for a psychiatric disability characterized by symptoms including irritability and memory loss. He asserted his symptoms might be associated with an undiagnosed illness due to his service in Southwest Asia. In August 2018, the Veteran filed an additional claim seeking service for psychological problems. He reported that he was "very irritable and [got] mad real quick then [he] was over it like nothing ever happened." In January 2019, he asserted his psychological condition was secondary to service-connected IBS and he submitted medical literature noting a connection between IBS and non-gastrointestinal symptoms. In November 2020, the Court approved JMPR vacated and remanded the Board's February 2020 denial of service connection for a psychiatric disorder and for memory problems. The decision was vacated because the Board's determined that the Veteran's anxiety disorder was not a MUCMI. The Board relied on April 2015 and September 2018 VA mental disorders examinations to support a finding that both the etiology and pathophysiology of the Veteran's mental disorder were understood. However, the April 2015 and September 2018 VA examinations did not address the pathophysiology of the Veteran's anxiety disorder. As the Board attributed the Veteran's memory problems to his anxiety disorder, the issue of entitlement to service connection for memory problems was intertwined with the issue of entitlement to service connection for an anxiety disorder. In February 2021, the Board remanded the claim of entitlement to service connection for an anxiety disorder (now identified as a claim for a psychiatric disorder, however diagnosed) and directed that an additional VA mental disorders examination be provided. The examiner was asked to identify all psychiatric disorders present over the entire appeal period. For each psychiatric condition identified, the examiner was asked to opine whether the condition was onset during or otherwise attributable to the Veteran's active service including his exposure to environmental hazards during his Gulf War service. If the Veteran experienced psychiatric symptoms which were not attributable to a known clinical diagnosis, the examiner was asked to opine whether the symptoms were attributed to an undiagnosed illness or a MUCMI. If an acquired psychiatric disorder was diagnosed, but not attributed to the Veteran's active service, the examiner was asked to opine whether the condition was at least as likely as not proximately due to or aggravated by service-connected irritable bowel syndrome (IBS). A VA mental disorders examination was provided in June 2021. The examiner found the Veteran did not meet the diagnostic criteria for any mental disorders. She noted an April 215 VA mental disorders examination diagnosed anxiety disorder, but she stated this condition had resolved prior to the June 2021 evaluation. In the history section of the evaluation, the examiner noted "subjectively reported current mental health symptoms" of getting "mad really fast" being irritable 40 to 50 percent of the time, verbally lashing out at others, feeling anxious and fidgety when things are not going well (up to twice each day), and waking at night (generally without difficulty going back to sleep). However, in the symptoms section of the evaluation, she did not document the presence of any psychiatric symptoms. As a layperson, the Veteran is competent to report his experience of symptoms such as being irritable, anxious, fidgety, lashing out, and waking at night. The examiner did not provide any reasons for dismissing these reports. Thus, the VA examination does include a complete and accurate medical history. The examiner opined that the Veteran did not meet the diagnostic criteria for a psychiatric disorder and, as such, there was no condition attributable to his active service including exposure to environmental hazards during Gulf War service. She additionally opined, as there was no diagnosed psychiatric disorder, there was no condition secondary to IBS. In October 2021, the examiner provided addendum opinions. She explained the anxiety disorder, diagnosed in April 2015, was due to work related stress and less likely than not attributable to the Veteran's active service, including exposure to Gulf War environmental hazards. She also opined the April 2015 diagnosed disorder was less likely than not secondary to IBS because there was no evidence the conditions were related. However, the examiner has not at any time provided an opinion as to whether the Veteran's reported symptoms represented an undiagnosed illness or whether the symptoms or the prior diagnosis of anxiety disorder might be a MUCMI without conclusive etiology or pathophysiology. Although the Veteran reported memory problems in February 2015, it is not clear that the examiner fully addressed his current psychiatric symptoms which may have included memory problems. The June 2021 and October 2021 VA examination and etiology opinions are inadequate to evaluate the claims seeking entitlement to service connection for a psychiatric disorder and for memory problems. See Stefl, supra; see Stegall, supra, see Stewart supra. 3. Entitlement to service connection for a skin condition, to include as due to service in Southwest Asia, is remanded. In August 2018, the Veteran filed a claim seeking service connection for a skin condition, including as an undiagnosed illness. In a supporting statement he described having skin tags, which were removed regularly at a VA treatment facility, and dry skin. VA treatment records document skin tags were removed in January 2015. In February 2021, the Board noted a September 2018 VA examiner diagnosed underarm skin tags and opined they were less likely than not due to in-service exposure to environmental hazards in Southwest Asia. He did not address whether the current skin disability was causally linked to in-service June 1993 treatment record documenting a rash on the neck. The Board remanded the claim for an opinion as to direct service connection which considered and discussed the medical significance of the June 1993 treatment record. An additional VA skin conditions examination was provided in August 2021. The examiner diagnosed dry skin and indicated the Veteran did not have other skin conditions, including resolved skin conditions. He opined the condition was less likely than not associated with the Veteran's active service because the service treatment records did not include reports of dry skin. The examiner did not discuss the June 1993 treatment note. The August 2021 VA examiner did not provide the evaluation required by the Board's February 2021 remand. The opinion is inadequate to evaluate the claim. See Stegall, supra. In addition, the Veteran claims his skin condition may represent an undiagnosed illness. As he is a Gulf War Veteran, an additional evaluation to determine whether his skin conditions or symptoms represent a qualifying chronic disability due to an undiagnosed illness or MUCMI must be obtained. See Stefl, supra. 4. Entitlement to service connection for a neurological disability, including as secondary to service-connected IBS or as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. In August 2018, the Veteran filed a claim seeking service connection for a neurological condition, including as due to an undiagnosed illness. He asserted symptoms of irritability were associated with this condition. In January 2019, the Veteran asserted his claimed neurological disability was secondary to service-connected IBS. He submitted medical literature which documented non-gastrointestinal symptoms could be associated with IBS. In February 2015, prior to filing a claim for service connection for a neurological disability, the Veteran reported memory problems. In February 2021, the Board remanded the claim of entitlement to service connection for a neurological disability and directed additional VA examinations be provided. For each neurological condition identified, the examiner was asked to opine whether the condition was onset during or otherwise attributable to the Veteran's active service including his exposure to environmental hazards during his Gulf War service. If the Veteran experienced neurological symptoms which were not attributable to a known clinical diagnosis, the examiner was asked to opine whether the symptoms were attributed to an undiagnosed illness or a MUCMI. If a neurological disorder was diagnosed, but not attributed to the Veteran's active service, the examiner was asked to opine whether the condition was at least as likely as not proximately due to or aggravated by service-connected irritable bowel syndrome (IBS). In June 2021, a VA mental disorders examiner observed the Veteran did not report any memory impairment and there was no evidence of any neurocognitive disorder. She also noted, as a psychologist, diagnosing neurological disorders was outside the scope of her practice. In August 2021, a VA central nervous system examination was provided. The examiner did not diagnose any central nervous system disability. As medical history, the examiner stated the Veteran was unsure as to any central nervous system conditions which might be present. She observed he mentioned headaches after being prompted. (Service connection for a headache condition is not currently before the Board as an October 2021 rating decision allowed service connection for headaches.) The examiner opined there were no diagnosed central nervous conditions or signs and symptoms of a neurological condition which might be related to the Veteran's service. Here, the August 2021 central nervous system examiner appears to have relied on the Veteran's understanding of central nervous system symptomatology in determining whether any symptoms, other than headaches, were present. As the Veteran is not a medical professional, he is not expected to fully understand which signs or symptoms would indicate a neurological condition. As the presence of symptoms, in addition to diagnosed neurological conditions, are key to addressing service connection for Persian Gulf War Veteran's, the August 2021 examination is inadequate to evaluate the claim. See Stefl, supra. 5. Entitlement to service connection for a joint and muscle disability, including as secondary to service-connected IBS or as due to a qualifying chronic disability to include an undiagnosed illness, is remanded. In August 2018, the Veteran filed a claim seeking service connection for a muscle and joint pain disability, including as due to an undiagnosed illness. He asserted symptoms of pain in his elbows, wrists, knees, ankles, back, legs, and arms are associated with this condition. In January 2019, the Veteran asserted his claimed muscle and joint pain disability was secondary to service-connected IBS. He submitted medical literature which documented non-gastrointestinal symptoms could be associated with IBS. In August 2019, VA Gulf War, muscle injury, knee conditions, cervical spine, foot conditions, ankle conditions, elbow conditions, hip conditions, wrist conditions, and shoulder conditions examinations were provided. Specific conditions of bilateral knee strain, cervical strain, plantar fasciitis, mild bilateral chronic ankle strain, bilateral epicondylitis, bilateral hip strain, bilateral wrist strain, right shoulder strain, and left shoulder arthritis and subscapularis tear were diagnosed. The examiner opined each condition was attributed to a clear and specific etiology, which was not associated with his active service. In February 2021, the Board determined the prior examinations had not fully addressed the Veteran's claim of entitlement to service connection for a joint and muscle disability. The Board remanded the claims and directed the RO to provide additional VA examinations. For each joint and muscle condition identified, the examiner was asked to opine whether the condition was onset during or otherwise attributable to the Veteran's active service including his exposure to environmental hazards during his Gulf War service. If the Veteran experienced joint and muscle symptoms which were not attributable to a known clinical diagnosis, the examiner was asked to opine whether the symptoms were attributed to an undiagnosed illness or a MUCMI. If a joint and muscle disorder was diagnosed, but not attributed to the Veteran's active service, the examiner was asked to opine whether the condition was at least as likely as not proximately due to or aggravated by service-connected irritable bowel syndrome (IBS). In August 2021, VA Gulf War, shoulder, and fibromyalgia examinations were provided. The examiner diagnosed specific shoulder conditions and opined they were related to the wear and tear of the Veteran's post-service employment in construction. He also opined the shoulder conditions were less likely than not causally related to IBS. In addressing the issue of secondary service connection, the examiner did not discuss the medical literature submitted by the Veteran. The examiner diagnosed shoulder conditions and in evaluating fibromyalgia, he documented symptoms (vague pain other than shoulder pain, tender points in the cervical area, gluteal area, and knees) which were not associated with a diagnosed condition. The examiner did not provide any opinion addressing whether the joint and shoulder conditions and/or symptoms were undiagnosed illness or MUCMI. The evaluations remain inadequate to evaluate the claim. See Stefl, supra; see Stegall, supra, see Stewart supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed psychiatric disorder, memory problems disorder, skin disorder, neurological disorder, and joint and muscle disorder. The examiner or examiners must review the claims file. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner or examiners should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner or examiners is/are asked to provide complete responses with detailed supporting rationale for each of the following: DIRECT SERVICE CONNECTION: Is a psychiatric disorder, memory problem disorder, skin disorder, neurological disorder, or muscle and joint disorder, present at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions), least as likely as not related to service, including exposure to environmental hazards in Southwest Asia (all) or a June 1993 rash (for skin disorder claim)? SECONDARY SERVICE CONNECTION: Is a psychiatric disorder, memory problem disorder, skin disorder, neurological disorder, or muscle and joint disorder, present at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions), at least as likely as not proximately due to service-connected IBS? Is a psychiatric disorder, memory problem disorder, skin disorder, neurological disorder, or muscle and joint disorder, present at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions), at least as likely as not aggravated, i.e., worsened beyond its natural progression, by serviced-connected IBS? In providing these opinions, the examiner or examiners must specifically address medical literature submitted by the Veteran in January 2019 which indicates symptoms, beyond gastrointestinal symptoms, may be associated with IBS. Each opinion must specifically address both causation and aggravation. EVALUATING MUCMI: The examiner or examiners is/are also asked to provide responses to the following: A) Is the etiology of the any psychiatric disorder, memory problems disorder, skin disorder, neurological disorder, and joint and muscle disorder, diagnosed at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions), (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. B) Is the pathophysiology of any psychiatric disorder, memory problems disorder, skin disorder, neurological disorder, and joint and muscle disorder, diagnosed at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions) (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. C) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder, memory problems disorder, skin disorder, neurological disorder, and joint and muscle disorder, diagnosed at any time over the appeal period (from February 2015 for psychiatric and memory problem disorders and from August 2018 for skin, neurological, and joint and muscle conditions) was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. EVALUATING AN UNDIAGNOSED ILLNESS: Then, in evaluating all claims (psychiatric disorder, memory problems disorder, skin disorder, neurological disorder, and joint and muscle disorder) the examiner or examiners is/are asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.