Citation Nr: A25035232 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240523-447990 DATE: April 16, 2025 REMANDED Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. Entitlement to service connection for a disability manifested by chronic fatigue is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left quadricep disability is remanded. Entitlement to service connection for a right quadricep disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to September 1993. The rating decision on appeal was issued in May 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In February 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May 2022 decision. In June 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2022 decision. In January 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for a disease manifested by chronic fatigue, which was most recently addressed in the June 2023 rating decision. In April 2024, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. In a May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for the claims of entitlement to a rating in excess of 30 percent for migraine headaches and entitlement to service connection for bilateral knee disabilities, bilateral quadriceps disability, and bilateral wrist disabilities the Board may only consider the evidence of record at the time of the May 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). For the claim of entitlement to service connection for a disease manifested by chronic fatigue, the Board may only consider the evidence of record at the time of the January 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for a disease manifested by chronic fatigue, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. The issue of entitlement to an increased rating for migraine headaches is remanded to correct a duty to assist error that occurred prior to the May 2022 rating decision on appeal. The AOJ obtained a May 2022 examination report prior to the rating decision on appeal. However, this examination report did not adequately consider all of the Veteran's symptomology associated with his service connected headaches. In this regard, the examination report indicates that the Veteran experiences headaches three to four times per day that range from mild to moderate in severity. His headaches cause pulsating or throbbing head pain on both sides of the head that worsens with physical activity. His non-headache symptoms include sensitivity to light. The Veteran experiences headaches with characteristic prostrating attacks once every month but indicated that these attacks were not "very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability." The Veteran takes over the counter aspirin to treat his headaches. (5/24/2022, C&P Exam, p. 2-3). The Board finds that the May 2022 examination report is inadequate as the examiner did not discount the ameliorative?effects of the Veteran's medication on the severity of his headache symptoms. See Jones v. Shinseki,?26?Vet. App.?56, 61?(2012) (when considering a disability rating, the Board must not consider the ameliorative?effects of?medication?unless those effects are explicitly contemplated by the relevant rating criteria). As the May 2022 examiner did not discount the ameliorative effects of the Veteran's headache medication in describing the severity of his symptomology, the Board finds that the May 2022 examination is inadequate. Accordingly, the Board finds that a duty to assist error was committed prior to the rating decision on appeal, and therefore, the claim must be remanded for further development. 2. Entitlement to service connection for a disability manifested by chronic fatigue is remanded. The issue of entitlement to service connection for a disability manifested by chronic fatigue is remanded to correct a duty to assist error that occurred prior to the April 2024 rating decision on appeal. At the outset, the Board notes that in the Veteran's January 2022 VA Form 21-526EZ, he filed a claim for "muscle and joint pain, headache, [and] chronic fatigue;" he did not explicitly file a claim for chronic fatigue syndrome. Given the wording used by the Veteran in the January 2022 filing, the Board finds that the Veteran filed a claim for a disability that is manifested by symptoms such as "muscle and joint pain, headache, [and] chronic fatigue," as opposed to a claim specifically for chronic fatigue syndrome. When a veteran files a disability compensation claim, the scope of the claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the present case, the Veteran reported symptoms including "muscle and joint pain, headache, [and] chronic fatigue." As such, the scope of the Veteran's current claim includes any disability that reasonably encompasses these reported symptoms. The AOJ obtained a VA chronic fatigue syndrome examination in May 2022, wherein a VA examiner indicated that the Veteran did not have a current diagnosis of chronic fatigue syndrome. The examiner did, however, note that the Veteran experiences symptoms of a disability that include waking up tired despite getting plenty of sleep. Further, despite having not diagnosed the Veteran with a disability, the examiner did opine that the Veteran experiences symptoms of a disability that impact his ability to work due to "prolonged periods" of fatigue during the day. (5/4/2022, C&P Exam, p. 2, 5). The Board finds that the May 2022 VA examination is inadequate. In this regard, while the May 2022 examiner did not diagnose the Veteran with chronic fatigue syndrome, the examiner did note symptoms of a disability that resulted in functional impairment of earning capacity, namely prolonged periods of fatigue. See Saunders v. Wilkie, 886 F.3d 1356 (2018). In Saunders the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." See Id. The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis). Later, in Wait, the United States Court of Appeals for Veterans Claims (CAVC) addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause "functional impairment of earning capacity," and therefore meet the current disability requirement under Saunders. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The CAVC held that, to meet the current disability requirement under Saunders, "there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." The CAVC clarified that the Board must make the factual determination whether the appellant's manifestations rise to the level of a functional impairment in earning capacity. As the May 2022 examination and medical opinion are not compliant with the Federal Circuit's holding in Saunders, the Board finds that the examination is inadequate. Further, the Board finds that the AOJ erred in limiting the scope of the Veteran's claim to chronic fatigue syndrome. As such, the Board finds that a duty to assist error was committed prior to the AOJ decision on appeal and, therefore, the claim must be remanded. On remand, the Veteran should be scheduled for an examination to determine the nature and etiology of his chronic fatigue. In so doing, the examiner should conduct all appropriate diagnostic testing and provide a diagnosis if possible. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. The issues of entitlement to service connection for left and right knee disabilities are remanded to correct duty to assist errors that occurred prior to the rating decision on appeal. The AOJ obtained an examination report and medical opinion in May 2022 prior to the rating decision on appeal. However, the medical opinion does not provide an adequate rationale regarding whether the Veteran's claimed disabilities had their onset in service or are otherwise related to service. In this regard, the May 2022 examination report reveals diagnoses of bilateral knee osteoarthritis. Confusingly, when prompted to provide details of the onset of the Veteran's claimed knee disabilities, the examiner indicated that the knee disabilities manifested in 2000 as "a right lower leg condition to his right lower leg which he had leaking of solution to his legs which caused pain." (5/24/2022, C&P Exam, p. 2, 19). It is unclear what the examiner was attempting to communicate with this explanation. The examiner opined that the claimed bilateral knee disabilities were less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Instead, the examiner indicated that the Veteran's current knee disabilities are related to "[w]ear and tear of the bilateral knees during service . . .." (5/24/2022, C&P Exam, p. 20). The Board finds that the May 2022 examination report is inadequate. In this regard, while the examiner provided a medical opinion linking the Veteran's bilateral knee disabilities to his period of active duty service, the medical opinion is conclusory in nature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions."). The May 2022 opinion provided by the examiner merely concludes that the Veteran's current knee disabilities are related to service without providing any supporting rationale detailing how his service caused the reported wear-and-tear or how in-service wear-and-tear led to the manifestation of bilateral knee osteoarthritis in 2000 (approximately 7 years after his discharge from active duty service). While it is certainly possible that the Veteran's current bilateral knee disabilities are related to in-service wear-and-tear, without a medical opinion that provides adequate rationale for this conclusion, the Board cannot grant service connection at this time. As the May 2022 examiner did not provide an adequate medical opinion regarding whether the Veteran's bilateral knee disabilities are directly related to service, the Board finds that the opinion is inadequate. The Board therefore finds that a duty to assist error was committed prior to the rating decision on appeal, and as such, the claims must be remanded for further development. 5. Entitlement to service connection for a left quadricep disability is remanded. 6. Entitlement to service connection for a right quadricep disability is remanded. The issues of entitlement to service connection for left and right quadricep disabilities are remanded to correct duty to assist errors that occurred prior to the rating decision on appeal. The AOJ obtained an examination report and medical opinion in May 2022 prior to the rating decision on appeal. However, the medical opinion does not provide an adequate rationale regarding whether the Veteran's claimed disabilities had their onset in service or are otherwise related to service. In this regard, the May 2022 examination report revealed diagnoses of bilateral quadricep muscle strains. Confusingly, when prompted to provide details of the onset of the Veteran's quadricep disabilities, the examiner indicated that the disabilities manifested in 2000 as "a right lower leg condition to his right lower leg which he had leaking of solution to his legs which caused pain." (5/24/2022, C&P Exam, p. 2, 11). It is unclear what the examiner was attempting to communicate with this explanation. Further, despite indicating that the Veteran's bilateral quadricep disabilities had their onset in 2000, which was approximately 7 years after he was discharged from active duty, the examiner opined that his quadricep disabilities had a "clear and specific [etiology] to a muscle injury during service." It is unclear on what basis the examiner concluded that the Veteran suffered bilateral quadricep injuries during service, as the examiner did not cite to any instance of a quadricep injury during service, nor did the examination report detail any lay assertion made by the Veteran of quadricep injuries during service. Additionally, the Board was unable to locate any reference to a diagnosis or complaints related to injuries to the quadriceps during service (the Veteran did, however, complain of tibia and fibula pain and tenderness during service). As the examiner made unsupported factual findings in the May 2022 medical opinion and generally failed to provide adequate supporting rationale for his or her conclusion, the Board finds that the opinion is inadequate. Accordingly, the Board finds that a duty to assist error was committed prior to the rating decision on appeal and, therefore, the claims must be remanded for further development. 7. Entitlement to service connection for a left wrist disability is remanded. 8. Entitlement to service connection for a right wrist disability is remanded. The issues of entitlement to service connection for left and right wrist disabilities are remanded to correct duty to assist errors that occurred prior to the rating decision on appeal. The AOJ obtained an examination report and medical opinion in May 2022 prior to the rating decision on appeal. However, the medical opinion does not provide an adequate rationale regarding whether the Veteran's claimed disabilities had their onset in service or are otherwise related to service. In this regard, the May 2022 examination report revealed a diagnosis of a left wrist sprain. No diagnosis of the right wrist was rendered, but the examiner did note that the Veteran has "subjective data of right wrist pain," but there was "no objective findings to warrant a diagnosis." (5/24/2022, C&P Exam, p. 1, 16). The examiner indicated that the date of onset of the Veteran's disability was in 1995 and described the details of onset as "soreness to his right and left wrist which came on gradually." The Veteran further reported that he continues to have wrist pain that has slightly worsened since onset. (5/24/2022, C&P Exam, p. 3, 17). The examiner opined that the Veteran's current left wrist disability is a disease with a clear and specific etiology and diagnosis. The examiner went on to opine that the Veteran's left wrist disability is "[l]ess likely than not related to a specific exposure event experienced by the [V]eteran during service in [S]outhwest Asia." The examiner instead opined that the "Veteran gradually developed pain to [his] left wrist during service which is likely related to wear and tear." The Board finds that the May 2022 examination report is inadequate as the medical opinion is conclusory in nature. See Nieves-Rodriguez, 22 Vet. App at 304. The May 2022 opinion merely concludes that the Veteran's current left wrist disability is related to service without providing any supporting rationale detailing how his service caused the reported wear-and-tear or how the in-service wear-and-tear led to the manifestation of a left wrist sprain in 1995 after his discharge from active duty service. While it is certainly possible that the Veteran's current left wrist disability is related to in-service wear-and-tear, without a medical opinion that provides adequate rationale for this conclusion, the Board cannot grant service connection. Regarding the Veteran's claim for a right wrist disability, the Board notes that the examiner did not diagnose the Veteran with a right wrist disability, but did note that he experiences subjective symptoms of a right wrist disability. See Saunders, 886 F.3d at 1356. In the present case, it is unclear if the Veteran's subjective right wrist symptoms result in the functional impairment of earning capacity. As such, there is insufficient evidence of record to determine whether the Veteran has a right wrist disability as defined by the Federal Circuit in Saunders. Given the above, the Board finds that the May 2022 examination report and subsequent medical opinion are inadequate. As such, the Board finds that a duty to assist error was committed prior to the rating decision on appeal, and therefore, the claims must be remanded for further medical development. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected migraine headaches. 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. In so doing, the examiner MUST discount the ameliorative effects of the Veteran's migraine headaches medication and specify the extent to which symptoms would be amplified in the absence of medication. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed disability manifested by chronic fatigue. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing, record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for the symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each 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) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each 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 (likelihood at least approximately balanced or equal) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, active service? A complete rationale must be provided for all opinions expressed 3. Schedule the Veteran for a VA examination for his claimed left and right knee disabilities. The examiner must review the claims file and provide a response to the following: Are the Veteran's claimed left and/or right knee disabilities at least as likely as not (likelihood at least approximately balanced or equal) related to service, including wear-and-tear to the knees during service? In providing the requested opinion, the examiner should acknowledge and address the May 2022 VA examiner's conclusion that the Veteran's bilateral knee disabilities are related to wear-and-tear during his period of active duty service. (5/24/2022, C&P Exam, p. 20). 4. Schedule the Veteran for a VA examination for his claimed left and right quadricep disabilities. The examiner must review the claims file and provide a response to the following: Are the Veteran's claimed left and/or right quadriceps disabilities at least as likely as not (likelihood at least approximately balanced or equal) related to service? In providing the requested opinion, the examiner should acknowledge and address the May 2022 VA examiner's conclusion that the Veteran's bilateral quadricep disabilities are related to an in-service quadriceps injury. (5/24/2022, C&P Exam, p. 11). 5. Schedule the Veteran for a VA examination for his claimed left and right wrist disabilities. 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 opinions below. The examiner must review the claims file and provide a response to the following: Are the Veteran's claimed left and/or right wrist disabilities at least as likely as not (likelihood at least approximately balanced or equal) related to service, including wear-and-tear during the Veteran's active duty service? In providing the requested opinion, the examiner should acknowledge and address the May 2022 VA examiner's conclusion that the Veteran's left wrist disability is related to wear-and-tear during his period of active duty service. (5/24/2022, C&P Exam, p. 17). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glenn, Robert 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.