Citation Nr: 22017601 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-22 354 DATE: March 25, 2022 ISSUES 1. Entitlement to service connection for fatigue, to include as due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses related to the Gulf War. 2. Entitlement to service connection for an eye disability, claimed as dry eyes. 3. Entitlement to service connection for supraventricular arrhythmia and hypertensive heart disease (heart disability). 4. Entitlement to service connection for weakness and balance issues, to include as due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses related to the Gulf War. 5. Entitlement to service connection for a sleep disability. REMANDED Entitlement to service connection for fatigue, to include as due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses related to the Gulf War is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for weakness and balance issues, to include as due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses related to the Gulf War is remanded. Entitlement to service connection for a sleep disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to October 1976 and from December 1990 to May 1991. His service in Southwest Asia during the Gulf War has been established. This case is before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a November 2021 videoconference hearing. A copy of the transcript is of record. During the hearing, the record was held open for 90 days to allow the submission of additional evidence; additional evidence was submitted subsequent to the hearing. This evidence is accepted for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2017). The Board notes that in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant'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 re-characterized the issues on appeal as reflected above as based on the Veteran's testimony before the undersigned and evidence of record. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. The Board finds that the Veteran generally argues that his disabilities are due to his service in the Gulf War, are undiagnosed illnesses, and are medically unexplained chronic multi-symptom illnesses. He also testified before the undersigned that his dry eyes were related to Gulf War sand exposure. 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). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. 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 (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). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (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 disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). However, consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. The Veteran was afforded VA examinations in May 2017 in which the examiner stated that after review of the records, there were no visits or treatments for restless leg syndrome; the Veteran had testing to rule out a possible diagnosis for lack of energy with no found diagnosis at that time. The examiner opined therefore that the fatigue and concentration symptoms were an undiagnosed illness, but possibly related to insomnia. The examiner stated that the Veteran had EMG studies, X-rays, bone imaging, and MRIs of the knee and back to rule out a possible diagnosis related to the balance issues; however, the examination was negative for findings, and there was no diagnosis at that time. The examiner opined that the neurological symptoms related to balance issues were an undiagnosed illness. However, the examiner did not address whether any undiagnosed illnesses were related to the Veteran's service, to include service in Southwest Asia during the Gulf War. The May 2017 examiner also stated that the Veteran did not have any knee diagnosis but had generalized weakness of the lower extremities with decreased sensation to bilateral feet that was due to his diabetic neuropathy. The Board notes at this time that the Veteran is not service connected for diabetes. However, the Veteran stated in December 2021 that the feeling of numbness in his legs happened years before the diagnosis of diabetes. The May 2017 examiner also stated that supraventricular tachycardia (SVT) was a disease with clear and specific etiology and diagnosis and not related to exposures during the Gulf War. The examiner also stated that hypertension (HTN) was a diagnosable chronic multi-symptom illness with a partially explained etiology and was not related to exposures during the Gulf War. However, the examiner did not provide rationale for these opinions. The Veteran was also afforded a VA examination in June 2017 for his eyes. The diagnoses in pertinent part were cataracts and vitreous hemorrhage. However, no etiological opinions were provided in the VA examination. The Board also notes that a private medical prescription in November 2021 showed a diagnosis of chronic dry eye syndrome. The Board notes that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, as outlined in the remand directives below, the Board finds that the Veteran should be afforded a Gulf War Guidelines examination(s), to be conducted by a suitable specialist, to address the disabilities claimed on appeal, to specifically address the pertinent etiological questions before the Board regarding the Persian Gulf undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. Schedule VA examination(s), to include a Gulf War Guidelines examination(s), to be conducted by a suitable specialist. Access to the electronic claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All tests deemed necessary shall be conducted, and the results reported in detail. The examiner must identify all diagnoses of fatigue, eye disability (to include dry eyes, cataracts and vitreous hemorrhage), heart disability (to include SVT and HTN), weakness and balance issues, and sleep disability (to include insomnia) present during the pendency of this appeal. For each diagnosed condition, the examiner must opine as to whether it is at least as likely as not that such is caused or aggravated by military service, to include service in Southwest Asia during the Gulf War and exposure to sand in regards to the claimed dry eyes. The examiner must opine as to whether the Veteran's competent and credible complaints of fatigue and weakness and balance issues represent undiagnosed illnesses, and if so whether such is related to his service, to include service in Southwest Asia during the Gulf War. The examiner is requested to specifically address the Veteran's contentions, to include that his leg numbness happened years before the diagnosis of diabetes, and the May and June 2017 VA examinations. A full and complete rationale for all opinions expressed must be provided. 3. Upon completion of the examinations ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.