UNDIAGNOSED ILLNESSES

C. BOSELY · 2019 · Case ID: 19144441

MIXED

Summary

The Veteran served from March 2007 to July 2014, including service in Southwest Asia. The Veteran appeals the denial of service connection for tension headaches and seeks service connection for left arm fatigue and aching, right arm fatigue and aching, and a gastrointestinal disorder (including irritable bowel syndrome and diarrhea), all claimed as due to an undiagnosed illness. The Board granted service connection for the left and right arm fatigue and aching, finding the criteria for an undiagnosed illness met based on the evidence. However, the Board denied service connection for tension headaches, stating the criteria for a compensable rating were not met, as the headaches had not resulted in prostrating attacks. The claims for fatigue, gastrointestinal disorder, and hyperhidrosis were remanded. The Board found that while the Veteran had undergone individual examinations for these distinct claims, a comprehensive VA opinion was needed to determine if the collective symptoms represented an undiagnosed illness or medically unexplained chronic multi-symptom illness, as required by 38 C.F.R. § 3.317. The case was remanded for a new examination to diagnose the conditions and provide a nexus opinion regarding their relationship to service or specific exposures.

Rationale

Criteria for service connection met; Benefit of the doubt applied

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-66 723

Full Decision Text

Citation Nr: 19144441
Decision Date: 06/07/19 Archive Date: 06/07/19

DOCKET NO. 17-66 723
DATE: June 7, 2019

ORDER

Entitlement to service connection for left arm fatigue and aching, to include as due to an undiagnosed illness, is granted.

Entitlement to service connection for right arm fatigue and aching, to include as due to an undiagnosed illness, is granted.

Entitlement to an initial compensable evaluation for service-connected tension headaches is denied.

REMANDED

Entitlement to service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness, is remanded.

Entitlement to service connection for a gastrointestinal disorder, including irritable bowel syndrome and diarrhea, to include as due to an undiagnosed illness, is remanded.

Entitlement to service connection for hyperhidrosis, to include as due to an undiagnosed illness, is remanded.

FINDINGS OF FACT

1. The most probative evidence of record indicates that the Veteran’s left and right arm fatigue and aching is due to an undiagnosed illness.

2. The most probative evidence of record reveals that the Veteran’s headaches have not been productive of prostrating attacks.

CONCLUSIONS OF LAW

1. The criteria for service connection for left arm fatigue and aching, to include as due to an undiagnosed illness, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317.

2. The criteria for service connection for right arm fatigue and aching, to include as due to an undiagnosed illness, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317.

3. The criteria for an initial compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 4.124a, DC 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 2007 to July 2014, to include service in Southwest Asia.

This matter is on appeal from March 2015 and July 2015 rating decisions.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2018). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established under 38 U.S.C. § 1117 (2012) and 38 C.F.R. § 3.317 (2017). Under 38 C.F.R. § 3.317, a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability is entitled to service connection for that disability, provided that such disability became manifest either during active military, naval, or air 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 21, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.

A “qualifying chronic disability” has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibrom
disability is entitled to service connection for that disability, provided that such disability became manifest either during active military, naval, or air 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 21, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.

A “qualifying chronic disability” has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multi-symptom illnesses); or (3) any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i).

“Objective indications of chronic disability” include both “signs,” in the medical sense of 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). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id.

1. Entitlement to service connection for muscle fatigue, including left arm fatigue and aching, to include as due to an undiagnosed illness is denied.

2. Entitlement to service connection for muscle fatigue, including right arm fatigue and aching, to include as due to an undiagnosed illness is denied.

As issues 3-4 are interrelated, the Board will address them together.

Specifically, the Veteran contends that service connection is warranted for muscle fatigue, including left and right arm fatigue and aching, to include as due to an undiagnosed illness.

The Board finds that the evidence is in equipoise in establishing that such symptoms are due to an undiagnosed illness.

The Veteran was initial seen for symptoms during service. A November 2007 service treatment record reveals that the Veteran reported numbness of the right index finger after hitting a heavy bag. In June 2010, the Veteran reported twitching and tingling in his left hand/thumb. In September 2010, the Veteran reported muscle spasms and twitching all over his body, which occurred randomly. In October 2010, the Veteran reported muscle spasms in his forearms. In October, November, and December 2010, the Veteran had panic attacks, at which time the Veteran described numbness, palpitations, dizziness, shortness of breath and tunnel vision that began spontaneously and lasted for 30 minutes to an hour. The Veteran also described multiple symptoms including arm twitching, numbness, tingling in his body, and muscle fatigue. In a January 2011 post-deployment review and assessment, the Veteran reported four to five months of muscle fatigue. The Veteran had numbness in both arms. In February 2011, the Veteran reported muscle weakness that began after his deployment to Kuwait. The Veteran specifically reported that his muscles fatigue in a matter of seconds after lifting objects that are heavy. In March 2011, muscle fatigue was noted. Muscle spasm was noted in September 2010. In April 2011, the Veteran reported muscle fatigue, to include fatigue with daily activities including brushing teeth, shaving, and lifting heavy objects with his elbows flexed. He also stated that he noticed pain in the corresponding muscle group within 20 to 30 seconds of beginning such activities. In a May 2011 neurology report, the Veteran reported, in relevant part, muscle aches, pains, and weakness, along with intolerance to muscle tensions when he holds things in his hands. He further reported tingling, paresthesia, and numbness in his arms. During an emergency room visit, the scan of his head was unremarkable. The clinician noted that the etiology of the Veteran’s presentation was unclear, but that his symptoms were suggestive of possible multiple sclerosis, an autoimmune disorder, or a metabolic disorder. In July 2013, the Veteran reported arm weakness and fatigue.

Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of
neurology report, the Veteran reported, in relevant part, muscle aches, pains, and weakness, along with intolerance to muscle tensions when he holds things in his hands. He further reported tingling, paresthesia, and numbness in his arms. During an emergency room visit, the scan of his head was unremarkable. The clinician noted that the etiology of the Veteran’s presentation was unclear, but that his symptoms were suggestive of possible multiple sclerosis, an autoimmune disorder, or a metabolic disorder. In July 2013, the Veteran reported arm weakness and fatigue.

Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim.

In favor of the claim, the Veteran was afforded a VA examination in May 2015, at which time the Veteran reported that he always has muscle fatigue in his arms. He also noted that his arms burn if he does anything with them. Muscle strength testing was normal. The examiner concluded that the Veteran had a normal upper arm muscle examination and that his complaints of bilateral arm fatigue and aching was an undiagnosed illness.

Also in favor, in a September 2017 VA examination, the Veteran reported a burning sensation in his forearms and inner upper arms when lifting over ten pounds with his arms outstretched. The Veteran also experienced the sensation with repeated rapid alternating flexion/extension movements, such as brushing his teeth. Muscle strength testing was normal and there was no muscle atrophy. The examiner noted that the Veteran’s muscle injury did not impact his ability to work. The examiner stated that while the Veteran had subjective complaints of bilateral upper arm muscle fatigue, the evidence of record did not support an etiology or diagnosis. Therefore, the examiner noted that the Veteran’s condition was an undiagnosed illness.

The examiner also opined that it was less likely than not that the Veteran’s left and right arm fatigue and aching was incurred in or caused by his in-service complaints and treatment in July 2010, September 2010 to May 2011, July 2013, October 2013, and May 2014. The examiner rationed that the Veteran had subjective complaints of bilateral upper arm muscle fatigue and that the available medical records did not provide clinical evidence as to an etiology or diagnosis.

The evidence against the claim includes a VA examination in February 2015, at which time the Veteran reported that he gets a burning sensation in his arms when he lifts weights. The examiner concluded that the Veteran’s symptoms were not abnormal and that the Veteran did not meet the criteria for a disability pattern.

In a September 2015 VA examination, an examiner diagnosed panic disorder and stated that the Veteran’s symptoms included sweating, heat sensations, and numbness or a tingling sensation in his fingers.

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current left or right arm fatigue and aching is related to service under § 3.317. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

3. Entitlement to an initial compensable rating for tension headaches is denied.

The Veteran
).

3. Entitlement to an initial compensable rating for tension headaches is denied.

The Veteran is seeking an initial compensable rating for tension headaches. The appeal period now before the Board begins in July 2014, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable (0 percent) rating throughout the entire appeal period.

Rating Schedule

The Veteran’s tension headache disability has been assigned disability ratings under Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a.

The applicable rating schedule is set forth as follows:

8100 Migraine:

With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50

With characteristic prostrating attacks occurring on an average once a month over last several months 30

With characteristic prostrating attacks averaging one in 2 months over last several months 10

With less frequent attacks 0

Medical reports may not use the word “prostration.” However this is an adjudicative determination based on the extent to which the facts meet the definition of the term. See M21-1, III.iv.4.G.7.c. Accordingly, “prostrating,” as used in 38 C.F.R. 4.124a, DC 8100, means “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” See M21-1, III.iv.4.G.7.a. Completely prostrating as used in 38 C.F.R. 4.124a, DC 8100, means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. The phrase “characteristic prostrating attacks” plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 254 (2018)

Prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine headache symptoms. See M21-1, III.iv.4.G.7.c. However, examples of prostrating symptoms include 1) experiencing severe headaches and vomiting when exposed to light; 2) not engaging in any activities when this occurs; and 3) must rest or sleep during these episodes. See M21-1, III.iv.4.G.7.d.

“Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in DC 8100 is “inadaptability” defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Discussion

In this case, the question for the Board is whether the Veteran’s disability has been manifested by a disability level involving at least characteristic prostrating attacks averaging one in 2 months over last several months. The Board finds that this next-higher disability level is not more nearly approximated as there is no material dispute that he does not experience characteristic prostrating attacks.

In a January 2015 primary care nursing note, the Veteran reported that he continued to have daily headaches, which were located across the temples to the back of the head.

In a January 2015 neurology consultation, the Veteran reported that he had burning headaches to the back of his head during service. He also stated that he went to bed with a headache and describes his headaches as rubber band like and that at times would be localized in his temples at which time he felt like his temples are going to explode. He denied any nausea or vomiting from onset of his headaches. He also denied any aura or light
is not more nearly approximated as there is no material dispute that he does not experience characteristic prostrating attacks.

In a January 2015 primary care nursing note, the Veteran reported that he continued to have daily headaches, which were located across the temples to the back of the head.

In a January 2015 TBI note, the Veteran noted that his headaches were severe in nature.

The Veteran was afforded a headaches DBQ in February 2015. The Veteran reported that his headaches started in May or June of 2010. He also stated that he got a burning sensation in the sides of his head and that they have occurred daily for the last three to four months. He stated that the headaches come and went, and he had taken over-the-counter medication with no relief. The examiner noted that the Veteran experienced headache pain, to include constant head pain and pain on both sides of the head. The Veteran also experienced non-headache symptoms associated with his headaches, to include sensitivity to light and sound. His headaches lasted less than one day in duration and that his typical head pain was on both sides of his head. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner also stated that the Veteran’s headache condition did not impact his ability to work.

In a February 2016 NOD, the Veteran stated that he felt that his headaches should be assessed with at least a 30 percent rating. In support of his belief, the Veteran stated that he gets headaches almost daily. He also noted that while he would not describe them as debilitating, that they were nagging and hard to ignore.

In an April 2017 urgent care discharge note, the Veteran’s discharge diagnosis included that of a left-sided headache. The Veteran was prescribed medication and discharged.

An August 2017 urgent care note reveals that the Veteran presented with complaints of left-sided scalp pain which he stated that he had for approximately two days. The Veteran also reported that he had a long history of headaches, which his mother described as muscle tension headaches. The Veteran was given saline and an anti-inflammatory drug for relief prior to being discharged.

An August 2017 emergency department note reveals that the Veteran presented with complaints of a headache in the left temporal region. The Veteran stated that his headache had been present for fifteen days; he rated his headaches to be about a 7 out of 10 in severity. The Veteran also reported that he felt a little bit of nausea on his way to the hospital, which caused him to vomit one time. He did not have any other issues. Following a CT scan, the physician noted that the Veteran’s condition did not require that he remain in the hospital, at which time he was discharged.

The Veteran was afforded a headaches DBQ in September 2017. The Veteran reported that his headaches began in April 2011, and he stated that he has had headaches at least twice a month, which start on the left side of his head above the temple and can last three to four days. The Veteran also stated that he did not have a prescription for medication for his headaches and that he had tried over-the-counter medications without success. The Veteran further reported that his current headache symptoms were the same as when they were onset. The examiner noted that the Veteran experienced headache pain, to include pulsating or throbbing head pain with pain on both sides of his head. The examiner also stated that the Veteran experienced non-headache symptoms associated with his headaches, to include sensitivity to light and sound. His headaches lasted less than one day and were located on both sides of his head. The examiner reported that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine pain. The examiner also noted that the Veteran’s headache condition did not impact his ability to work.

In a September 2017 mental health note, the Veteran reported that his headaches had increased in frequency since 2010. He did not, however, report that the intensity or character of his headaches had changed.

Upon review of all of the evidence of record, the Board finds that an initial compensable rating is not warranted at any point during the appeal period. Here, the Veteran’s VA treatment records and VA examination reports show that the Veteran’s headaches were not prostrating as required for the next higher 10 percent rating. The Veteran has reported experiencing daily headaches that have resulted in head pain that pulsated or throbbed on both sides of his head. However, there is no evidence that the Veteran’s daily headaches have resulted in extreme exhaustion or powerlessness. Further, there is no indication in the record that the Veteran missed any work or that he had attacks productive of severe economic inadaptability. Notably, in the Veteran’s February 2016 NOD, he stated that his symptoms associated with his headaches were not debilitating, but instead nagging and hard to ignore. Thus, the evidence does not show that the Veteran’s tension headaches have manifested in or more nearly approximated characteristic prostrating attacks averaging one in two months over the last several months.

The Board acknowledges the Veteran’s contention that the evidence of record supports an increased rating of at least 30 percent. However, the rating schedule requires characteristic prostrating attacks which are not present in his case notwithstanding the nagging and difficulty to ignore nature of his headaches.

The severity of the symptoms associated with headaches as set forth in the rating schedule, is contemplated along a broad and non-exclusive continuum with successive criteria based on the frequency of prostrating attacks. The Veteran’s non-headache symptoms, such as sensitivity to light and sound, plus nausea and vomiting are contemplated by the rating schedule. See Grassa v. McDonald, No. 14-1925, 2015 U.S. App. Vet. Claims LEXIS 715, at *11-12 (Vet. App. May 29, 2015) (nonprecedential) (addressing the diagnostic code applicable to hemorrhoids). Therefore, the rating schedule was purposely designed to compensate for all symptoms of his disability, and the complete and comprehensive signs and symptoms of the Veteran’s tension headaches are contemplated by the rating schedule.

Thus, the preponderance of the evidence is against a compensable rating. See Johnson, 30 Vet. App. at 254. Therefore, the appeal is denied.

REASONS FOR REMAND

1. Entitlement to service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness, is remanded.

2. Entitlement to service connection for a gastrointestinal disorder, including irritable bowel syndrome and diarrhea, to include as due to an undiagnosed illness, is remanded.

3. Entitlement to service connection for hyperhidrosis, to include as due to an undiagnosed illness is remanded.

The Veteran contends that service connection is warranted for fatigue, gastrointestinal symptoms, and hyperhidrosis, to include as due to an undiagnosed illness.

The Board finds that a new VA opinion is needed. These examinations indicate that the Veteran does not have a diagnosis of chronic fatigue syndrome, irritable bowel syndrome, or hyperhidrosis. Yet, the Veteran has underwent individual VA examinations to address the distinct claims separately. A VA examination has not been conducted to address whether the collective symptoms may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness. To this extent, section 3.317 specifically identifies the signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses to include fatigue, signs or symptoms involving the skin, and gastrointestinal signs or symptoms. Without an adequate opinion address whether these symptoms collectively represent an undiagnosed illness or medically unexplained chronic multisymptom illness, the evidence of record is currently inadequate to resolve the claims.

As such, the matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any fatigue, gastrointestinal symptoms, and hyperhidrosis.

(a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary.

(b.) Please provide a medical statement explaining whether the Veteran’s symptoms, whether
skin, and gastrointestinal signs or symptoms. Without an adequate opinion address whether these symptoms collectively represent an undiagnosed illness or medically unexplained chronic multisymptom illness, the evidence of record is currently inadequate to resolve the claims.

As such, the matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any fatigue, gastrointestinal symptoms, and hyperhidrosis.

(b.) Please provide a medical statement explaining whether the Veteran’s symptoms, whether separately or in combination, represent:

4. (1) an undiagnosed illness

2. (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology

3. (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or

4. (4) a disease with a clear and specific etiology and diagnosis

(a.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.

(b.) If no, is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service?

COREY BOSELY

Acting Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD Tiffany N. Hanson, 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.

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