Citation Nr: 22017991 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-13 148 DATE: March 27, 2022 ORDER Entitlement to service connection for a neurological condition of the left upper extremity is granted. Entitlement to service connection for a neurological condition of the right upper extremity is granted. Entitlement to service connection for a neurological condition of the left lower extremity is granted. Entitlement to service connection for a neurological condition of the right lower extremity is granted. Entitlement to service connection for a muscle condition manifested by aches and pain in the knees, elbows, chest, and jaw is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for neurocognitive disorder is remanded. Entitlement to service connection for coronary artery disease with stent is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux with Barrett's Esophagus, is remanded. Entitlement to service connection for a condition manifested by weight fluctuation is remanded. FINDINGS OF FACT 1. The Veteran is a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317. 2. The Veteran's neurological symptoms of the bilateral upper extremities and bilateral lower extremities and muscle condition manifested by aches and pain in the knees, elbows, chest, and jaw have not been associated with a clinically diagnosed disability despite extensive diagnostic testing. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neurological condition of the left upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for entitlement to service connection for a neurological condition of the right upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. The criteria for entitlement to service connection for a neurological condition of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 4. The criteria for entitlement to service connection for a neurological condition of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 5. The criteria for entitlement to service connection for a muscle condition manifested by aches and pain have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1989 to November 1993. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection 1. Entitlement to service connection for a neurological condition of the left upper extremity 2. Entitlement to service connection for a neurological condition of the right upper extremity 3. Entitlement to service connection for a neurological condition of the left lower extremity 4. Entitlement to service connection for a neurological condition of the right lower extremity 5. Entitlement to service connection for a muscle condition manifested by aches and pain The Veteran seeks entitlement to service connection for neurological conditions of the bilateral upper extremities and bilateral lower extremities and for a muscle condition manifested by aches and pains. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to an undiagnosed illness, provided that certain requirements are met. For purposes of 38 C.F.R. § 3.317, the term "Persian Gulf veteran" means a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations includes Saudi Arabia. 38 C.F.R. § 3.317(e)(2). For the purposes of 38 C.F.R. § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to muscle pain, joint pain, and neurological signs or symptoms, gastrointestinal signs or symptoms, and cardiovascular signs or symptoms. 38 C.F.R. § 3.317(b). In this case, the Veteran's DD Form 214 shows that he served in an area of responsibility from July 1993 to October 1993 in support of Operation Desert Shield/Storm and that he received the Southwest Asia Service Medal. The Veteran has indicated that the "service in an area of responsibility" noted on the DD Form 214 was performed in Saudi Arabia. The Board finds no reason to doubt the Veteran's credibility in that regard. Therefore, he is considered a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317, and the presumptive service connection provisions of 38 C.F.R. § 3.317 are for application. The Veteran has reported numbness and weakness in his bilateral upper extremities and bilateral lower extremities. He has also reported joint and muscle pain, stiffness, and warmth, to include in his knees, elbows, chest, and jaw. He is considered competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the Veteran credible as to his assertions in that regard. The medical evidence of record indicates that the Veteran's reported neurological, joint, and muscle symptoms have not been medically attributed to a diagnosable condition despite extensive objective medical testing. Specifically, a June 2013 VA Gulf War registry examiner noted that a May 2013 EMG/NCV was negative and not indicative of a diagnosis relating the reported neurological symptoms. An April 2014 VA Gulf War General Medical examiner acknowledged the Veteran's neurological, joint, and muscle symptoms, but found no basis for providing a diagnosis relating to those symptoms. X-rays obtained as part of that VA examination did not show any cervical or lumbar dermatome involvement to explain the Veteran's upper and lower extremity symptoms. The Veteran's medical treatment records show that he has also undergone a CT of the cervical spine, a MRI of the brain, a chest x-ray, muscle biopsy testing, and a number of blood and toxicity tests to determine the cause of the reported neurological, joint, and muscle symptoms, but no diagnosis has been established relating to those symptoms. Thus, although the Veteran has been thoroughly evaluated for his reported neurological, joint, and muscle symptoms, the evaluating medical professions have not been able to attribute those reported symptoms to a diagnosable condition despite objective medical testing. In view of such facts, the Board concludes that the lay evidence and medical evidence of record weighs in favor of finding that the Veteran has an undiagnosed illness, as defined in 38 C.F.R. § 3.317, that is manifested by numbness and weakness in the bilateral upper extremities and bilateral lower extremities and by joint and muscle pain, stiffness, and warmth in the knees, elbow, chest, and jaw. The criteria for entitlement to service connection for such an undiagnosed illness on a presumptive basis under 38 C.F.R. § 3.317 are therefore met, and service connection must be granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for neurocognitive disorder is remanded. The Veteran was most recently afforded a VA mental disorders examination in June 2018 to assess the severity of his neurocognitive disorder. Although the examiner, who is a psychologist, was able to perform some testing regarding the Veteran's neurocognitive functioning, he also stated, "I am not certified to do neuropsychological testing beyond what I have administered today, and recommend that the veteran be scheduled for an in-depth neurocognitive assessment, using the same instruments as were utilized in 2014, to identify any further decline since 2014 with more certainty, and to try once more to identify a cause for any decline which is evidenced." Thus, the examiner recommended that further testing be conducted by a specialist to provide a more certain and complete understanding of the Veteran's disability picture. Because the June 2018 VA examination did not provide all of the information necessary to evaluate the Veteran's neurocognitive disorder, it is inadequate for decision-making purposes. The issue must be remanded so that the Veteran may be provided an opportunity to report for a VA examination with appropriate neuropsychological testing to ascertain the current severity and manifestations of his neurocognitive disorder. 2. Entitlement to service connection for coronary artery disease with stent is remanded. The medical treatment records show that the Veteran has been diagnosed with coronary artery disease, which required placement of a stent. In April 2021, a private cardiologist wrote, "I am concerned that during his active service he was exposed to environmental hazards that contributed to his early and aggressive coronary artery disease as this would certainly be unexpected and rare for a man of his good general health and history to have the heart disease he does." The pathophysiology and etiology of this condition is unclear, and it is therefore unclear whether the Veteran's coronary artery disease is a cardiovascular manifestation of a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317. Accordingly, a remand is required so that a medical opinion may be obtained to discuss these matters. In addition, the cardiologist's April 2021 letter suggests that the Veteran has received additional VA and private medical treatment. On remand, efforts must be made to obtain records for that treatment. 3. Entitlement to service connection for GERD, claimed as acid reflux with Barrett's Esophagus) is remanded. The pathophysiology and etiology of the Veteran's diagnosed GERD is unclear, and it is therefore unclear whether the Veteran's GERD is a gastrointestinal manifestation of a medically unexplained chronic multisymptom illness. It is also unclear from the record whether the Veteran's upper gastrointestinal system symptoms are indicative of a functional gastrointestinal disorder. See 38 C.F.R. § 3.317. In that regard, the Veteran's private physician stated in March 2010, "His primary complaints are nausea, heartburn, and upper abdominal pain. I suspect this is likely functional." Accordingly, a remand is required so that a medical opinion may be obtained to discuss these matters. 4. Entitlement to service connection for a condition manifested by weight fluctuation is remanded. The medical treatment records suggest that the Veteran's weight fluctuations were caused or aggravated by his GERD or by his service-connected irritable bowel syndrome. The Board cannot make a fully-informed decision on the issue of because no VA examiner has opined whether such an etiological relationship exists. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 12, 2019, to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment he has received, to include from the UCHealth Heart and Vascular Clinic in Sterling, Colorado. Make two requests for the any records so authorized unless it is clear after the first request that a second request would be futile. Any inability to obtain the records must be documented in the record and the Veteran should be so notified in a manner consistent with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected neurocognitive disorder. The examination must include appropriate neuropsychological testing with a neurocognitive assessment similar to that conducted in May 2014. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the neurocognitive disorder alone. 4. Schedule the Veteran for an examination to determine the nature and etiology of his diagnosed coronary artery disease. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the following: A) Is the etiology of the Veteran's coronary artery disease (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 the Veteran's coronary artery disease (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 (50 percent probability or greater) that the Veteran's coronary artery disease was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. The examiner must discuss the April 2021 statement from a private cardiologist, which says "I am concerned that during his active service he was exposed to environmental hazards that contributed to his early and aggressive coronary artery disease as this would certainly be unexpected and rare for a man of his good general health and history to have the heart disease he does." 5. Schedule the Veteran for an examination to determine the nature and etiology of his diagnosed GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the following: D) Is the etiology of the Veteran's GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition (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. E) Is the pathophysiology of the GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition (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. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (50 percent probability or greater) that the Veteran's GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition were incurred in, or are otherwise related to, his active service? G) If not, is it at least as likely as not that the Veteran's GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition may be considered a functional gastrointestinal disorder? For purposes of this opinion, functional gastrointestinal disorders are defined as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. See 38 C.F.R. § 3.317(a)(2)(i)(B)(3). A complete rationale must be provided for all opinions expressed. In determining whether the Veteran's GERD and any upper gastrointestinal symptoms that have not been attributed to a diagnosed condition may be considered a functional gastrointestinal disorder, the examiner must address the March 2010 statement from the Veteran's private physician that, "His primary complaints are nausea, heartburn, and upper abdominal pain. I suspect this is likely functional." 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's weight fluctuations, even if currently resolved, are or were at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond their natural progression by service-connected irritable bowel syndrome or by GERD or other upper gastrointestinal condition. The opinion must reflect consideration of the medical treatment records that attribute the weight fluctuations to irritable bowel syndrome or to GERD or other upper gastrointestinal condition. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.