Citation Nr: 22017741 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-31 010 DATE: March 26, 2022 REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for a respiratory disability, to include asthma, is remanded. Entitlement to service connection for a gastrointestinal (GI) disability, to include irritable bowel syndrome (IBS), is remanded. Entitlement to service connection for Epstein Barr is remanded. Entitlement to service connection for a sleep disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1990 to November 1992 with service in Southwest Asia from May 1991 to July 1991. The Veteran was scheduled for a video conference hearing in December 2021. He failed to report for this hearing and provided no explanation for his failure to report. Given such, the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for CFS is remanded. A June 2016 letter from a private nurse practitioner and an April 2016 VA treatment record (VA TR) note that the Veteran has been diagnosed with CFS. See J.M., DNP letter, June 2016; VA TR, April 2016. However, it is not clear from these records whether the diagnoses meet the regulatory definition of CFS for VA purposes. See 38 C.F.R. § 4.88a. In light of this possible diagnosis of CFS and the Veteran's service in Southwest Asia, the claim must be remanded for a VA examination and opinion that addresses whether the Veteran has CFS and, if so, to what degree. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a respiratory disability, to include asthma, is remanded. 3. Entitlement to service connection for a GI disability, to include IBS, is remanded. 4. Entitlement to service connection for Epstein Barr is remanded. 5. Entitlement to service connection for a sleep disability is remanded. Issues 2-5: The Veteran claims that he has a respiratory, GI, Epstein Barr-related, and sleep symptoms that are related to his service in the Persian Gulf. Despite evidence of current complaints of chest pain, shortness of breath, abdominal pain, irregular bowel movements, elevated Epstein Barr virus titers, and difficult sleeping, his service in the Southwest Asia in 1991, and his argument that his current symptoms are the result of his exposures in Southwest Asia, he has not been afforded a VA examination or opinion for any of these claims. The Board finds that remand is warranted to obtain such an opinion. See McLendon, supra. The matters are REMANDED for the following actions: 1. Schedule the Veteran for examinations with appropriate examiner(s) to provide opinions regarding the nature and etiology of his claimed respiratory, GI, Epstein Barr, and sleep disorders. With regard to CFS: (a.) The examiner must identify all diagnoses relating to fatigue that the Veteran currently has or had during the appeals period (November 2010 to the present). For each identified diagnosis, the examiner must opine whether it is at least as likely as not related to his military service, including his exposures in Southwest Asia. (b.) The examiner should specifically answer whether the Veteran has CFS for VA purposes. If so, the examiner should indicate whether it is manifest to a compensable degree. (c.) If the examiner is unable to provide a diagnosis for the Veteran's fatigue, they should state whether those symptoms may be attributed to any other identifiable cause or etiology or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. (d.) The examiner should specifically address: (1) the June 2016 private nurse practitioner letter, noting a diagnosis of CFS, and (2) the April 2016 VA TR noting a diagnosis of CFS. With regard to a respiratory disability: (e.) The examiner must identify all diagnoses relating to the respiratory system that the Veteran currently has or had during the appeals period (November 2010 to the present). For each identified diagnosis, the examiner must opine whether it is at least as likely as not related to his military service, including his exposures in Southwest Asia. (f.) If the examiner is unable to provide a diagnosis for any of the Veteran's respiratory symptoms, they should state whether those symptoms may be attributed to any other identifiable cause or etiology or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. (g.) The examiner should specifically address: (1) whether the Veteran has a current diagnosis of asthma, and (2) the April 2016 VA TR noting chest pain and shortness of breath. With regard to a GI disability: (a.) The examiner must identify all diagnoses relating to the GI system that the Veteran currently has or had during the appeals period (November 2010 to the present). For each identified diagnosis, the examiner must opine whether it is at least as likely as not related to his military service, including his exposures in Southwest Asia. (b.) If the examiner is unable to provide a diagnosis for any of the Veteran's GI symptoms, they should state whether those symptoms may be attributed to any other identifiable cause or etiology or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. (c.) The examiner should specifically address: (1) whether the Veteran has a current diagnosis of irritable bowel syndrome, and (2) the October 2021 private treatment record noting abdominal pain and irregular bowel movements. With regard to Epstein Barr: (a.) The examiner must indicate whether the Veteran has a current diagnosis relating to Epstein Barr virus. If the examiner does not find that the Veteran has a current such disability, they must indicate why the findings of elevated Epstein Barr titers do not qualify. For any diagnosed condition, the examiner must then state whether it is at least as likely as not that such a disability is related to an in-service injury, event, or disease, including his service in Southwest Asia. With regard to a sleep disability: (a.) The examiner must identify all diagnoses relating to sleep that the Veteran currently has or had during the appeals period (November 2010 to the present). For each identified diagnosis, the examiner must opine whether it is at least as likely as not related to his military service, including his exposures in Southwest Asia. (b.) If the examiner is unable to provide a diagnosis for any of the Veteran's sleep symptoms, they should state whether those symptoms may be attributed to any other identifiable cause or etiology or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. (c.) The examiner should specifically address the April 2016 VA TR noting occasional problems with sleep onset and getting back to sleep. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. [CONTINUED ON THE NEXT PAGE] YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.