Citation Nr: 22014290 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 19-22 826 DATE: March 12, 2022 REMANDED Entitlement to service connection for joint pain, to include as due to an undiagnosed illness, a symptom of a medically unexplained chronic multi-symptom illness (MUCMI), and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for a disorder manifested by fatigue, to include chronic fatigue syndrome (CFS), and as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for sleep apnea, also claimed as respiratory disorder, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for headaches, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for a neurological condition, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for night sweats, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. Entitlement to service connection for an acquired psychiatric disorder, also claimed as sleep disturbances, to include as due to an undiagnosed illness, a symptom of a MUCMI, and/or exposure to Gulf War environmental hazards, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1988 to November 1997. He is the recipient of several medals, including a Southwest Asia Service Medal with 2 Bronze Stars, Kuwait Liberation Medal (Saudi Arabia), and a Kuwait Liberation Medal (Kuwait). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2021 Board hearing. A copy of the transcript has been associated with the file. The Board finds that further evidentiary development is required prior to reviewing the issues on appeal. With respect to all issues on appeal, the Board notes that the Veteran's updated treatment records have not been associated with the file. The Veteran testified to receiving current treatment at the VA. However, the most recent treatment records in the file date prior to September 2018. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue[s] on appeal. Thus, remand is warranted to allow VA to obtain them. Additionally, the Veteran testified to receiving Social Security Administration (SSA) disability. VA is obligated to obtain SSA records if there is a reasonable possibility that the records could help substantiate the Veteran's claim. In the present case, no attempts to obtain the Veteran's SSA records have been made, and if available, are relevant to the Veteran's medical history. Furthermore, SSA medical records are considered federal records for duty to assist purposes. As no records have been obtained, the Board must defer consideration of the claims at this time. Relevant to the Veteran's claim of entitlement to service connection for sleep disturbances, pursuant to Clemons v. Shinseki, the Board has considered the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include anxiety and sleep disturbances. For the service connection claims on appeal, the record has raised the theories that the claimed disorders are associated with an undiagnosed illness, a medically unexplained chronic multi-symptom illness, or otherwise related to the Veteran's exposure to the environmental hazards during his active service in Southwest Asia. 1. Entitlement to service connection for joint pain is remanded. 2. Entitlement to service connection for muscle pain is remanded. The Veteran contends that his joint and muscle pain are a result of service, to include as due to an undiagnosed illness or a symptom of a MUCMI. The Veteran was provided a Gulf War examination in June 2018. Decreased muscular endurance in the quadriceps was noted, with severe knee degenerative joint disease. The VA examiner found that the Veteran's muscle and joint pain has a clear and specific etiology and diagnoses. The examiner found it is less likely than not that the Veteran's condition is a disability pattern or diagnosed disease that is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. For rationale, the examiner noted there is no pattern of illness that is unexplained. The Veteran has a diagnosis of bilateral knee degenerative joint disease with muscle pain primarily in his quadriceps and related to brace use and muscle deconditioning. During his October 2021 Board hearing, the Veteran testified that his joint and muscle pain began during service, after returning from the Middle East, and has continued since that time. He testified that the joint pain began as a result of the physical conditioning required daily during service, and the pain began before his knee injury in service. In addition, he indicated taking an anti-inflammatory three times a day for his joints and pain pills twice a day. See Hearing Transcript, Page 9. Although the Board acknowledges the examiner has attributed the Veteran's muscle and joint pain to a diagnosed condition, this does not end the analysis under 38 C.F.R. § 3.317. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a medically unexplained chronic multi-symptom illness when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). As the examiner did not provide a conclusion regarding the pathophysiology of the Veteran's muscle and joint pain symptoms, or if the Veteran's symptoms are a direct result of service, this opinion is inadequate. The Veteran has also associated his symptoms of muscle and joint pain with the physical rigors of military training. No opinion on this theory of entitlement has been obtained. Accordingly, remand is warranted for a new examination to determine the nature and etiology of the Veteran's muscle and joint pain. 3. Entitlement to service connection for chronic fatigue syndrome is remanded. At the October 2021 Board hearing, the Veteran reported his fatigue is a result of service. Specifically, he contended that his fatigue is a result of anti-nerve agent pills and/or environmental exposures from the Middle East. He testified he first noticed fatigue when he got home from his Middle East deployment but was discouraged from going to medical during service. The Veteran was provided a Gulf War examination in June 2018 at which time he noted chronic fatigue. In the corresponding VA Chronic Fatigue Syndrome (CFS) examination, the examiner found no diagnosis of CFS, as there was no objective evidence that this condition exists in VA records. Under the medical history section, it does not appear the examiner elicited any current or prior history regarding any fatigue contentions from the Veteran. After a review of the evidence, the Board finds that the examination of record is insufficient to determine the present claim. The examiner failed to adequately address the Veteran's competent lay statements and relied upon a lack of medical evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate where the examiner fails to properly account for competent lay evidence). Moreover, the Board notes that the Veteran is competent to report on lay observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, no opinion has been obtained regarding the Veteran's theory of entitlement of fatigue due to anti-nerve agent pills. Accordingly, remand is warranted for a new examination to determine the nature and etiology of the Veteran's fatigue, that adequately addresses his lay statements and all theories of entitlement to service connection. 4. Entitlement to service connection for sleep apnea, also claimed as a respiratory condition, is remanded. The Veteran contends that his respiratory condition is a result of service. Specifically, he contends respiratory issues are from exposure to environmental hazards in the Middle East, including burn pits. During his Respiratory Conditions VA examination in June 2018, he reported breathing problems at night, when he stops breathing during sleep. He was provided a sleep study and diagnosed with obstructive sleep apnea (OSA) and restless leg syndrome. The examiner found no pattern of illness that is unexplained, as the Veteran did not make a complaint of, or seek care for, a chronic pulmonary/respiratory condition claimed as "COPD environmental hazards" during military service or subsequent to military service. The examiner further found that as a diagnosis of a chronic pulmonary/respiratory condition was not rendered, completion of the remainder of the worksheet was not necessary. A diagnosis of OSA requiring a CPAP machine was noted, which is explained by his age and increased neck circumference of 16 inches. The Board finds the examination and subsequent opinion to be inadequate; thus, of little probative value. The examiner did not provide an opinion regarding the Veteran's OSA and its relation, if any, to service. Accordingly, a remand is required to determine the etiology of the Veteran's OSA, and any other diagnosed respiratory disorders. 5. Entitlement to service connection for headaches is remanded. The Veteran contends his headaches are a result of service, to include as due to an undiagnosed illness or a symptom of a MUCMI. During the June 2018 Gulf War examination, the Veteran contended he experienced headaches. In the corresponding VA Headache Conditions examination, a headache disability was not diagnosed, and under the medical history section, it does not appear the examiner elicited any current or prior history. The examiner opined that it is less likely than not that the Veteran's stress headaches are a disability pattern or diagnosed disease that is related to a specific exposure event experienced by him during service in Southwest Asia. The examiner reasoned that there is no pattern of illness that is unexplained, all diagnoses have clear and specific etiologies. There is no objective evidence of any chronic headache condition. The examiner continued that no VA records reported a headache condition, no headache medications were noted, and no headache condition and/or medication was noted in service treatment records. Therefore, the examiner found no objective evidence that a headache condition existed and thus no diagnosis was rendered. During his October 2021 Board hearing, the Veteran testified to experiencing headaches during service, including his service in the Gulf. He reported that he was given Motrin to relieve the symptoms. He testified he still experiences headaches present day. Hearing Transcript, Page 11. The Board finds the examination and subsequent opinion to be inadequate; thus, of little probative value. The examiner did not take the Veteran's competent lay statements into account when rendering the opinion. Moreover, the Board notes that the Veteran is competent to report on lay observable symptomatology. As such, a remand to determine the etiology of the Veteran's headache condition is warranted. 6. Entitlement to service connection for neurological condition is remanded. The Veteran contends his neurological condition is a result of service, to include as due to an undiagnosed illness or a symptom of a MUCMI. During his June 2018 Gulf War examination, the Veteran reported lower leg jerking/cramping. The examiner opined that that Veteran's neurological condition was less likely than not a disability pattern or diagnosed disease that is related to specific exposure event during service in Southwest Asia. For rationale, the examiner noted that there was no pattern of illness that is unexplained, the diagnosis has a clear and specific etiology; mainly, he had a diagnosis of restless leg syndrome. During the October 2021 Board hearing, the Veteran testified to experiencing a neurological condition prior to leaving the service. He testified to issues with walking and leg function. He reported he now uses a walker and leg brace. Although the Board acknowledges the examiner has attributed the Veteran's neurological condition to restless leg syndrome, this does not end the analysis under 38 C.F.R. § 3.317. As the examiner did not provide a clear conclusion regarding the pathophysiology of the Veteran's neurological condition, this opinion is inadequate. Accordingly, remand is warranted. 7. Entitlement to service connection for night sweats is remanded. The Veteran contends that his excessive night sweating began during his service in the Middle East and has continued to present day. In the Gulf War examination in June 2018, the Veteran reported occasional night sweats. The VA examiner opined that it was less likely than not that the Veteran's night sweat condition is a disability pattern or diagnosed disease that is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. For rationale, the examiner noted no pattern of illness that is unexplained; all diagnoses have clear and specific etiologies. There is no objective evidence of any condition involving night sweats and thus no diagnosis is rendered. The Board finds the examination and subsequent opinion to be inadequate; thus, of little probative value. The examiner did not take the Veteran's competent lay statements into account when rendering the opinion. Moreover, the Board notes that the Veteran is competent to report on lay observable symptomatology, including night sweating. As such, a remand to determine the etiology of the Veteran's night sweats is warranted and to determine whether it is attributable to any condition that has not yet been granted service connection. 8. Service connection for an acquired psychiatric disorder, also claimed as sleep disturbances is remanded. The Veteran contends he has an acquired psychiatric disorder, to include anxiety and sleep disturbances, as due to an undiagnosed Gulf War illness or exposures to environmental hazards during the Gulf War. During his October 2021 Board hearing, the Veteran testified to experiencing anxiety and sleep disturbances during service, to include an incident where a scud missile landed a half mile from his camp. To date, the Veteran has not been provided a VA examination for his claimed acquired psychiatric disorder with sleep disturbances. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. 2. Contact the Social Security Administration (SSA) and obtain a complete copy of any application and related records underlying any adjudication for SSA disability benefits regarding the Veteran. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if such records are not available. 3. Encourage the Veteran and his representative to submit any evidence, to include any positive private medical opinions relating to the Veteran's issues on appeal. 4. After the above development has been accomplished, schedule the Veteran for the necessary examinations by a qualified clinician, preferably one different than the 2018 examiner, to determine the nature and etiology of his joint and muscle pain. The entire claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. The examiner is asked to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's joint pain and/or muscle pain is related to an in-service injury, event, or disease in service, to include environmental exposures in Southwest Asia or the physical rigors of military training. (b.) Or, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's joint pain and/or muscle pain is an: i. An undiagnosed illness; ii. A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (MUCMI); iii. A diagnosable chronic multi-symptom illness with a partially explained etiology, or; iv. A disease with a clear and specific etiology and diagnosis. **The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered "medically unexplained." 38 C.F.R. § 3.317. The examiner is reminded that the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). The examiner must address the Veteran's contentions (a) that his joint and muscle pain are a result of the rigors of military training, including daily PT and running 1-2 miles daily; (b) that his joint and muscle pain are a result of the environmental exposures in Southwest Asia. 5. Schedule the Veteran for an examination to determine the nature and etiology of his fatigue. The entire claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. The examiner is asked to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fatigue is related to an in-service injury, event, or disease in service, to include environmental exposures in Southwest Asia and/or in-service immunizations. (b.) Or, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fatigue is an: i. An undiagnosed illness; ii. A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (MUCMI); iii. A diagnosable chronic multi-symptom illness with a partially explained etiology, or; iv. A disease with a clear and specific etiology and diagnosis. The examiner is reminded that the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan, 451 F.3d at 1337. The examiner must address the Veteran's contentions regarding fatigue due to (a) in-service immunizations; (b) environmental hazards in the Middle East, including burn pits; and (c) that his fatigue began in service, after returning from a Middle East deployment. 6. Schedule the Veteran for an examination to determine the nature and etiology of his contended neurological condition. The entire claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. The examiner is asked to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neurological condition is related to an in-service injury, event, or disease in service, to include environmental exposures in Southwest Asia. (b.) Or, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neurological condition is an: i. An undiagnosed illness; ii. A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (MUCMI); iii. A diagnosable chronic multi-symptom illness with a partially explained etiology, or; iv. A disease with a clear and specific etiology and diagnosis. 7. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's acquired psychiatric disability, to include sleep disturbances. The entire claims file, including a copy of this Remand, must be made available to, and reviewed by the examiner. The examiner is asked to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability, to include sleep disturbances, is related to an in-service injury, event, or disease in service, to include environmental exposures in Southwest Asia. (b.) Or, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability is an: i. An undiagnosed illness; ii. A diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (MUCMI); iii. A diagnosable chronic multi-symptom illness with a partially explained etiology, or; iv. A disease with a clear and specific etiology and diagnosis. The examiner is reminded that the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan, 451 F.3d at 1337. The examiner must address the Veteran's contentions regarding an onset of anxiety and sleep disturbances during service. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.