Citation Nr: 22015396 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-03 772 DATE: March 17, 2022 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is dismissed. REMANDED Entitlement to service connection for right ear disability is remanded. Entitlement to service connection for left ear disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a headache disability, to include migraine, is remanded. Entitlement to service connection for muscle pain is remanded. Entitlement to service connection for joint pain is remanded. Entitlement to service connection for a back disability (lumbar spine) is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. FINDINGS OF FACT 1. In a November 2021 decision, the RO granted the Veteran's claim for service connection for obstructive lung disease. CONCLUSIONS OF LAW 1. The criteria for dismissal of an appeal for service connection for COPD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1978 until his honorable discharge in June 1982. Subsequently, the Veteran served in the United States Army Reserves, including a period of active duty from November 1990 until his honorable discharge in June 1991. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from the April 2018 rating decision by the Regional Office(s) (RO) of the United States Department of Veterans Affairs (VA). In a March 2019 decision, the Board denied the Veteran's claim for the above issues on appeal. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 memorandum decision, the Court remanded the above issues to the Board for readjudication. Qualified Periods of Service Active duty for training includes full-time duty with the Reserve. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist must perform each year. It can also refer to the Reservist's initial period of training. Inactive duty training includes service with the Reserve (other than full-time duty) that usually indicates weekend drills or training. 38 U.S.C. § 101(23)(A), 38 C.F.R. § 3.6(d). Furthermore, 38 C.F.R. § 3.6(a) provides that any period of active military, naval, and air service, including active duty for training during which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, in which occurred during such training. For all other periods of service, a Reservist is not entitled to VA benefits. Dismissed 1. Entitlement to service connection for COPD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In the present case, during the period on appeal, the RO granted the Veteran's claim for obstructive lung disease in the November 2021 rating decision and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for right ear disability is remanded. 3. Entitlement to service connection for left ear disability is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for a headache disability, to include migraine, is remanded. 6. Entitlement to service connection for muscle pain is remanded. 7. Entitlement to service connection for joint pain is remanded. 8. Entitlement to service connection for a back disability (lumbar spine) is remanded. 9. Entitlement to service connection for allergic rhinitis is remanded. 10. Entitlement to service connection for IBS is remanded. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. As a preliminary matter, the Board notes that in the March 2019 Board decision, the Board found that the Veteran is not credible as to his assertions of chronic headaches: respiratory, lung, breathing complaints; sleep apnea; diarrhea; bilateral ear complaints; and back complaints since service. As an example of the inconsistency of the Veteran's report of these disabilities since service, the Board notes that the Veteran underwent a United States Army periodic examination in Fort Benning, Georgia in January 1998 in which he reported in Box 8, Statement of Examinee's Present Health and Medications Currently Used that he was in "[v]ery Good Health...[and he was] not taking any medications." In boxes 9 and 10, the Veteran reported that he has never had any of the disabilities listed and that he did have vision in both eyes. Furthermore, in box 11, the Veteran reported that he did not ever have, nor did he currently have any of the disabilities listed. Finally, in boxes 15, the Veteran reported "no" to all the questions asked. In contrast, the Veteran reports, without supporting evidence, that his disabilities began during his active military service (1991) and have continued since that time. Although VA treatment records reflect that the Veteran typically reports that he does not have an outside provider, there are records that indicate that the Veteran has seen outside providers for various issues. For example, the Veteran reported that in 2007, he saw an outside provider for a colonoscopy. Furthermore, the Veteran submitted February 2017 correspondence from a private provider (a chiropractor in Titusville, Florida over 300 miles from the Veteran's home) that asserted that the above disabilities began during the Veteran's service and have persisted to present and that the Veteran was seen in [his] office on February 13, 2018, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request all treatment records pertaining to the above disabilities. The Board notes that Medically Unexplained Chronic Multi Symptom Illness (MUCMI) may be established on a presumptive basis for veterans with qualifying chronic disability that became manifest during 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. See 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317(a)(1)(i) (2021). Pertinent to this case, a MUCMI is a "diagnosed illness without conclusive pathyphysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018) ("Under the proper interpretation of the law, an illness is MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood." The Board cannot make a fully-informed decision on the issues of entitlement to service connection for the above disabilities because no VA examiner has provided an opinion adddressing the likely etiology of such. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private providers that have treated and/or diagnosed any of the disabilities on appeal. Make two requests for the authorized records from any private providers that have treated and/or diagnosed any of the disabilities on appeal, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from September 29, 2021 to the Present from the Carl Vinson VAMC (if any); from October 25, 2012 to the Present from Albany CBOC (if any); and from any other VA medical center that has treated the Veteran since June 1982. 3. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the United States Army Reserves. Verify all active duty for training and inactive duty training dates for alleged service in the United States Army Reserves. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 4. After the above has been completed, schedule the Veteran for a VA examination for his bilateral ear disabilities, sleep apnea disability, headache disability, complaint(s) of muscle pain, complaint(s) of joint pain, back disability, allergic rhinitis disability, and irritable bowel syndrome disability. The examiner must review the claims file, including this complete remand and acknowledge that the examiner has read and understand this remand, including but not limited to the Board finding on the Veteran's credibility (or lack of credibility). For each and every disability claimed, if a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (1) For each and every claimed disability, the examiner must provide a diagnosis, note that the claim is a symptom of another disability, or that the assertion(s) are not supported by the evidence. If the assertions of pain do not result in limitation of range of motion, the examiner shall obtain x-ray evidence and any additional testing required to determine the cause(s) of the pain and identify what joints and muscles are claimed as being in pain. (2) Is the Veteran's bilateral ear disability, sleep apnea disability, headache disability, complaint(s) of muscle pain, complaint(s) of joint pain, back disability, allergic rhinitis disability, and/or irritable bowel syndrome disability at least as likely as not (50 percent probability or greater) related to service, including his service in Southwest Asia? (3) Is the Veteran's bilateral ear disability, sleep apnea disability, headache disability, complaint(s) of muscle pain, complaint(s) of joint pain, back disability, allergic rhinitis disability, and/or irritable bowel syndrome disability a MUCMI, defined as a "diagnosed illness without conclusive pathyphysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018) ("Under the proper interpretation of the law, an illness is MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood." (4) For any disability that has a known or conclusive etiology, the examiner must explain the etiology and the basis of the opinion(s). In contrast, if any disability has an unknown or inconclusive etiology, the examiner must explain the basis of the opinion(s). The examiner must also note if either the etiology or pathophysiology of the illness(es) is inconclusive and explain their finding(s). The examiner must provide a detailed rationale to support the opinion(s). If the examiner is unable to provide any opinion(s) requested, the examiner must explain if the inability to provide an opinion is due to a lack of personal knowledge or a lack of knowledge within the medical community as a whole. In providing the requested opinion(s), the examiner should consider the Veteran's description of his in-service injury and/or symptoms, as well as his post-service symptoms. However, the examiner must also note any discrepancies (including, but not limited to, the subsequent United States Army periodic examination in Fort Benning, Georgia in January 1998 in which he reported in Box 8, Statement of Examinee's Present Health and Medications Currently Used that he was in "Very Good Health. I am not taking any medications" in boxes 9 and 10, the Veteran reported that he has never had any of the disabilities listed and did have vision in both eyes; in box 11, the Veteran reported that he did not ever have, nor did he currently have any of the disabilities listed; and in boxes 15, the Veteran reported no to all the questions asked. Furthermore, if there is any medical reason to accept or reject the proposition(s) that the Veteran's reported injury and/or symptoms in service and thereafter represented the onset of his current disability with continued symptomatology since service, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.