Case A26038587

MELANIE J. MANN · 2026 · Case ID: A26038587

MIXED

Summary

The Veteran served from January 1986 to December 1996, earning the Kuwait Liberation Medal and Southwest Asia Service Medal. The Veteran appealed a March 2020 rating decision, electing a hearing with a Veterans Law Judge, which was held in October 2024. The Veteran withdrew her claim for an increased rating for persistent depressive disorder, which the Board dismissed. The Board granted service connection for conjunctivitis and a headache disorder, finding the evidence weighed in the Veteran's favor and that these conditions were directly related to wartime service. The Board noted favorable findings from the AOJ regarding a headache disorder diagnosis and a conjunctivitis episode during service, but found the subsequent VA examinations inadequate for failing to obtain a proper medical history and provide a nexus opinion. The Board accepted the Veteran's testimony regarding her symptoms and found her credible. The Board also found the AOJ committed a duty-to-assist error by relying on inadequate examinations for conjunctivitis and headache disorder. The case was remanded for new, adequate VA examinations for vertigo disorder, right and left first carpal metacarpal degenerative arthritis, and fibromyalgia. For fibromyalgia, the Board noted the Veteran's symptoms of widespread pain and depression, and that the VA examiner found tender points but no formal diagnosis. The Board found the AOJ reviewed the scope too narrowly and should have considered other possible disorders, committing a duty-to-assist error by not providing a MUCMI examination given the Veteran's service in Southeast Asia.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210315-147501

Full Decision Text

Citation Nr: A26038587
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 210315-147501
DATE: April 24, 2026

ORDER

Entitlement to an increased disability rating for persistent depressive disorder has been withdrawn.

Entitlement to service connection for conjunctivitis is granted.

Entitlement to service connection for a headache disorder is granted.

REMANDED

Entitlement to service connection for a vertigo disorder is remanded.

Entitlement to service connection for right first carpal metacarpal degenerative arthritis is remanded.

Entitlement to service connection for left first carpal metacarpal degenerative joint disease is remanded.

Entitlement to service connection for fibromyalgia is remanded.

FINDINGS OF FACT

1. During the Veteran's October 2024 hearing, the Veteran stated explicitly and unambiguously that she wished to withdraw her claim for an increased rating for persistent depressive disorder.

2. The Veteran's conjunctivitis is directly related to service.

3. The Veteran's headache disorder is directly related to service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the claim for an increased disability rating for persistent depressive disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The Veteran's conjunctivitis is directly related to wartime service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

3. The Veteran's headache disorder is directly related to wartime service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1986 to December 1996. The Veteran's awards include the Kuwait Liberation Medal and the Southwest Asia Service Medal with three devices. The Board thanks the Veteran for her service.

On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) went into effect. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review on or after February 19, 2019. As this case is an appeal of a March 2020 rating decision, this decision has been written consistent with the new AMA framework.

However, when, as here, there are pre-decisional, duty-to-assist, errors it is permissible for the Board to have them corrected before deciding the claim on appeal.

In March 2021, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) electing a hearing with a Veterans Law Judge. A Board hearing was held on October 2, 2024.

Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of service connection for a vertigo disorder, left first carpal metacarpal degenerative joint disease, right first carpal metacarpal degenerative joint disease, and fibromyalgia, 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).

1. Entitlement to an increased disability rating for persistent depressive disorder

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C
considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to an increased disability rating for persistent depressive disorder

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 19.55 (a), (b)(3). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

During the Veteran's October 2024 hearing, she stated that she wished to withdraw her claim for an increased rating for persistent depressive disorder.

Based upon record, the decision to withdraw the appeal was explicit, unambiguous, informed and voluntary. As a result, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.

2. Entitlement to service connection for conjunctivitis

3. Entitlement to service connection for a headache disorder

After review, the Board finds that the evidence weighs in the Veteran's favor and that service connection is warranted.

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service).

To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called 'nexus' requirement." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Veteran states that her headaches started during her active duty service after she had returned from her overseas assignment. She also states that she has conjunctivitis and has taken medication to control it. She reports that her disorders have been continuous since service and provided credibly relayed this during her October 2024 hearing.

In the March 2020 rating decision on appeal that addressed the Veteran's claims, the AOJ favorably found that the Veteran had a diagnosis for a headache disorder and that the Veteran had an episode of conjunctivitis during service. The Board is bound by favorable findings of the AOJ unless rebutted by evidence that identifies clear and unmistakable (undebatable) error. 38 C.F.R. § 3.104(c).

Given that the Board finds the Veteran credible, the only outstanding issue for both claims is whether the claimed disorders have a nexus to service.

While the Veteran was afforded VA examinations for her disorders in February 2020, the VA examiner failed to obtain a proper medical history (including onset and course) from the Veteran for both disorders. The VA examiner provided a negative nexus opinion for the Veteran's conjunctivitis, finding that the Veteran did not have a diagnosis. The VA examiner did not provide a nexus opinion for the Veteran's headache disorder and the stated basis for this opinion was that there were no service treatment records documenting treatment for headaches.

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the February 2020 VA medical opinion that the Veteran does not have a diagnosis of conjunctivitis is minimally probative medical evidence on this point.

During the Veteran's examination, the Veteran reported taking medication to mitigate her conjunctivitis. Despite this, the VA examiner did not discuss whether the Veteran's medication would remove or mitigate all symptoms of conjunctivitis or how the Veteran's medication would affect her eyes.

The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Conjunctivitis and headaches can be detected through lay observation. Further, treatment records submitted after the Veteran's hearing document conjunctivitis as an ongoing issue.

Given this the Board finds that the outstanding evidence weighs in the Veteran's favor. The Board finds that a headache disorder and conjunctivitis are directly related to service.

REASONS FOR REMAND

1. Entitlement to service connection for a vertigo disorder is remanded.

2. Entitlement to service connection for right first carpal metacarpal degenerative arthritis is remanded.

3. Entitlement to service connection for left first carpal metacarpal degenerative joint disease is remanded.

After review, the Board finds that the examinations provided for the Veteran were inadequate.

In the March 2020 rating decision on appeal that addressed the Veteran's claims, the AOJ favorably found that the Veteran had a diagnosis for peripheral vestibular disorder and bilateral first carpal metacarpal degenerative joint disease. The Board is bound by favorable findings of the AOJ unless rebutted by evidence that identifies clear and unmistakable (undebatable) error. 38 C.F.R. § 3.104(c).

The Veteran was afforded VA examinations for her claimed disorders in February 2020. An additional examination for the Veteran's bilateral
to service connection for left first carpal metacarpal degenerative joint disease is remanded.

After review, the Board finds that the examinations provided for the Veteran were inadequate.

The Veteran was afforded VA examinations for her claimed disorders in February 2020. An additional examination for the Veteran's bilateral wrist disorders in March 2020. All of the nexus opinions returned were negative.

However, the Board finds that the examinations provided were inadequate. The examiners failed to obtain any medical history of the Veteran's disorders. This includes important information such as the onset of the claimed disorders as well as course and continuity of the disorders. Without a properly detailed medical history, an adequate opinion cannot be obtained.

Given this, the Board finds that the provided opinions hold no probative value.

The Board finds that the AOJ committed a duty to assist error by relying on inadequate examinations for its rating decision. On remand, new examinations will be provided for the claimed disorders.

4. Entitlement to service connection for fibromyalgia is remanded.

After review, the Board finds that an examination for a medically unexplained chronic multi-symptom illness (MUCMI) is warranted.

The Veteran maintains that she has experienced pain throughout her body. During her hearing, she stated that she referred to her pain as "fibromyalgia," but has since come to believe that the actual diagnosis is arthralgia.

The Veteran was afforded a VA examination for her claimed disorder in February 2020. While the VA examiner indicated that the Veteran had a prior diagnosis of fibromyalgia in 2018 and that is in person examination revealed 6 of the 18 fibrocitic tender points to be tender, he found that the Veteran did not have a diagnosis of fibromyalgia. The VA examiner went on to note "[h]er PCP has been following her for 5y and diagnosed her as having FMS- fibro about 2y ago. She feels that she is depressed, but cries only about once every 1 or 2 months. For the depression he tried cymbalta for 2y, she stopped it as she did not feel that it help and she believes that the cymbalta worsened her hot flashes. She takes ambien 5mg or 10mg every night and aleeps 8H once a week and 6H the other nights. She has not seen a rheumatologist."

The Board finds that the AOJ reviewed the scope Veteran's too narrowly, in that, the AOJ failed to adequately consider the Veteran's statements describing her ongoing symptomology that included "pain throughout her body" and depression. The Veteran is not a medical practitioner and may not know exactly what disease she has, as such the AOJ should be sympathetically developing the claim. Given that the Veteran has had symptoms that involve pain throughout her body, the VA examiner should have considered other possible disorders. At a minimum, the examiner should have explained the Veteran's symptoms and the possible origin for them.

Finally, given the Veteran's service in Southeast Asia, the AOJ should have provided the Veteran with a MUCMI examination. As such, the Board finds that the AOJ committed a duty to assist error by not providing an examination.

The matters are REMANDED for the following action:

1. Return the claims file to a VA examiner of appropriate expertise in order to determine the etiology of the Veteran's claimed fibromyalgia disorder. The VA examiner must:

(a.) Conduct a MUCMI examination of the Veteran.

(b.) If the MUCMI examination does not find a disorder that encapsulates the Veteran's disorder, conduct a VA examination of the Veteran's disorder. Attempt to diagnose the disorder.

(c.) If the examiner cannot provide either an opinion or diagnosis without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

(d.) A complete rationale for any opinion expressed should be provided in a report.

2. Return the claims file to a VA examiner/VA examiners of appropriate expertise in order to determine the etiology of the Veteran's claimed bilateral wrist disorders and peripheral vestibular disorders. The VA examiner must obtain the medical history of the Veteran's respective disorders
(c.) If the examiner cannot provide either an opinion or diagnosis without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

(d.) A complete rationale for any opinion expressed should be provided in a report.

(a.) After obtaining an adequate medical history, the VA examiner must answer whether it is at least as likely as not (i.e. the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's respective disorders are directly related to service.

(b.) A complete rationale for any opinion expressed should be provided in a report. The VA examiner must discuss the Veteran's lay statements when providing an opinion. The VA examiner is welcome to review other records in the claims file, including the Veteran's hearing testimony.

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Nelson, Jonah A

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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