Citation Nr: 1645750	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  13-28 623A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for steatohepatitis and, if so, whether the claim should be allowed.  

2.  Entitlement to service connection for sleep apnea, claimed as due to Gulf War hazards.  

3.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTDS), an anxiety disorder, and an adjustment disorder.  

4.  Entitlement to service connection for a gastrointestinal (GI) disorder, to include gastroesophageal reflux disease (GERD). 

5.  Entitlement to service connection for a low back disorder, claimed as chronic low back pain.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service in the Navy from July 1990 to July 1994; and while in the Navy reserves he had active duty from February 2003 to July 2003.  

This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

Historically, the Veteran was notified in July 2007 that a rating decision that month denied service connection steatohepatitis as unrelated to military service. He did not appeal that decision.  

Contained in VBMS is a December 4, 2015, RO letter acknowledged having received the Veteran's Notice of Disagreement (NOD) with a November 2015 decision to reduce his VA benefits because he received Military Drill Pay for fiscal years 2008, 2009, 2010, 2011, and 2012.  Because the RO had acknowledged receipt of the NOD, the situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized.  As VBMS reflects that the NOD has been recognized and that additional action is pending, the holding in Manlincon, Id., was not applicable as to these claims.  However, as yet, the RO has still not issued a statement of the case (SOC) and, so, this matter is referred to the RO for appropriate action.  

The Veteran testified at a July 2016 videoconference before the undersigned Veterans Law Judge (VLJ) and a transcript thereof is on file.  

Following the Veteran's July 2016 videoconference it was agreed to hold the case open to allow him the opportunity to submit additional evidence.  That evidence was submitted but without a waiver of initial RO consideration of such evidence.  That evidence consisted of lay statement in support of the claim for service connection for sleep apnea.  Also received were records showing the he had been in motor vehicle accidents (MVAs) in April and November 2015 and evaluations for injuries of the low back and the cervical spine.  

This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file.  Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records.

The issues of service connection for sleep apnea and for service connection for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO.  


FINDINGS OF FACT

1.  A July 2007 rating decision denied service connection for steatohepatitis and the Veteran was notified thereof but did not appeal.  That rating decision is final.  

2.  New and material evidence has been received to reopen a claim for service connection for steatohepatitis.  

3.  Steatohepatitis is first shown years after all periods of active service and is unrelated to any period of active service; and the competent medical evidence establishes that steatohepatitis is not caused or aggravated by medication for a service-connected disability.  

4.  An acquired psychiatric disorder, to include an anxiety disorder, and an adjustment disorder is first demonstrated years after the Veteran's last period of active duty and is unrelated to any circumstances or incidences therein; and the evidence demonstrates that he does not have PTSD.  

5.  A chronic GI disorder, to include GERD, is first demonstrated years after the Veteran's last period of active duty and is unrelated to any circumstances or incidences therein; and the evidence demonstrates that he does not have irritable bowel syndrome.  


CONCLUSIONS OF LAW

1.  The July 2007 rating decision which denied service connection for steatohepatitis is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2015).

2.  New and material evidence has been received to reopen a claim for service connection for steatohepatitis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2015).

3.  The criteria for service connection for steatohepatitis are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.307, 3.309, 3.310 (2015).  

4.  The criteria for service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder, and an adjustment disorder are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015).

5.  The criteria for service connection for a GI disorder, to include GERD, are not met.  38 U.S.C.A. §§ 1110, 1112, 1117, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development.  VA's duty to notify was satisfied as to the application to reopen the claim for service connection for steatohepatitis by letters in February 2011 and July 2013, as to the claim for service connection for sleep apnea by letter in February 2012, as to the claims for service connection for an acquired psychiatric disorder and a GI disorder, including GERD, by letter in July 2012.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

As to the duty to assist, the Veteran's service medical and personnel records are on file, as are relevant private and VA clinical records.  The Veteran testified in support of his claims at a July 2016 videoconference before the undersigned Veterans Law Judge (VLJ).  38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The videoconference focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation.  Also, it has not been alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Dickens v. McDonald, 814 F.3d 1359 (Fed.Cir. 2016) (the Board is not required to discuss a potential violation of 38 C.F.R. § 3.103(c)(2), as discussed in Bryant v. Shinseki, 23 Vet. App. 488 (2010) unless an appellant raises such issue).  While assistance is required, 38 C.F.R. § 3.103(c)(2) does not require that one presiding at a hearing pre-adjudicate a claim.  Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam).  

The Veteran was also provided VA examinations as to the claims for service connection.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  Except as addressed below, the adequacy of the examinations and medical opinions obtained has not been challenged.  The Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged.  See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999).  As to the psychiatric examinations, the Veteran testified that the examiner erroneously indicated that as a child the Veteran had been molested numerous times or over an extended period of time by a priest.  The Veteran testified that as a child on one occasion a priest had unsuccessfully attempted to molest him and it was false to state that he had been molested many times.  In this regard, a careful reading of the reports of the 2013 and 2014 VA psychiatric examinations shows that it was not reported that he had been molested many times; rather, that he had been molested or there had been an attempt to molest him which was followed by counseling of the Veteran and his parents.  At the hearing the Veteran did not suggest that he had not undergone such counseling, as reported in the VA psychiatric examinations.  Accordingly, the Board finds that the clinical history relied upon by the examiner that conducted both the 2013 and 2014 psychiatric examinations was not faulty and there is otherwise nothing which was implicate that an erroneous clinical history was relied upon in the examiner's having reached the relevant medical opinion in this case.  Moreover, the VA examinations did address whether the Veteran has PTSD and, so, an additional examination as to this, as requested at the videoconference due to alleged misdiagnoses, is not required.  

In a July 2011 VA Form 21-4138, Statement in Support of Claim the Veteran reported that the VA examiner that found that medication had not contributed to his steatohepatitis was rude, biased, hostile, angry, asked few questions and informed him of a negative opinion before he left the examining room.  For this reason he requested a new examination.  However, the Board's review of the examination report reflects no indication of the matters to which the Veteran has raised objections.  Moreover, the fact that the examination resulted in a negative medical opinion is not grounds for an additional VA examination.  

Accordingly, the VA examination reports are accepted as adequate because they collectively provide evidentiary information that speaks directly to the Veteran's subjective complaints, the objective findings found on evaluation, and medical opinions.  38 C.F.R. § 3.326 (2015).  

As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.  Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007).  

Principles of Service Connection

To establish service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury.  In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for a disease or disability first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or disability was incurred in service.  38 C.F.R. § 3.303(d).  

A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including a psychosis (as defined at 38 C.F.R. § 3.384), if the chronicity is either shown as such in service or within one year of active service, which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), and subsequent postservice manifestations of the same chronic disease (under 38 C.F.R. § 3.307).  The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of the chronic disease.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, but the use of continuity of symptoms is limited to only those chronic diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See 38 C.F.R. § 3.303(b) and Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Evidence of continuity of symptomatology which requires that (i) a condition was 'noted' during service, and (ii) evidence of postservice continuity of the same symptomatology, and (iii) medical or lay evidence of a nexus between the present disability and the postservice symptomatology" by either competent lay or competent medical evidence.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition.  38 C.F.R. § 3.310(a) and (b).  This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).  

Pursuant to 38 U.S.C.A. § 1117 "a Persian Gulf Veteran with a qualifying chronic disability," that manifests to a degree of 10 percent or more before December 31, 2016, may be entitled to compensation.  38 U.S.C.A. § 1117(a); 38 C.F.R. § 3.317(a)(1).  As the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, he is a Persian Gulf Veteran.

There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to § 1117.  Qualifying chronic disabilities include those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service connection."  38 U.S.C.A. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B).  

VA has defined a medically unexplained chronic multi-symptom illness as "a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  38 C.F.R. § 3.317(a)(2)(ii).  

The statute provides three examples of a medically unexplained chronic multi-symptom illness: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  38 U.S.C.A. § 1117(a)(2)(i)(B).  The regulation provided these same examples in 38 C.F.R. § 3.317(2)(B), however, it was recently amended to change the third example from irritable bowel syndrome to functional gastrointestinal disorders.  See 76 Fed.Reg. 41696 (July 15, 2011) (codified at 38 C.F.R. § 3.317(a)(2)(i)(B)(3), effective August 15, 2011 and applicable to claims pending before, filed with or remanded to VA on or after August 15, 2011).  A note to this provision defines functional gastrointestinal disorders to include a list of specific functional gastrointestinal disorders including irritable bowel syndrome.  38 C.F.R. § 3.317(a)(2)(i)(B)(3), Note.  

Along with the three examples of a medically unexplained chronic multi-symptom illness provided by 38 U.S.C.A. § 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multi-symptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders.  See 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b).  

The provisions of 38 C.F.R. § 3.317(a)(ii) provide that, in order to be considered a qualifying chronic disability, a disability "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis."  The definition of "medically unexplained chronic multisymptom illness" includes a "diagnosed illness without conclusive pathophysiology or etiology."  

38 U.S.C.A. § 1154(b) provides that in the case of a combat veteran lay or other evidence of service incurrence or aggravation is sufficient proof of the occurrence of an event but this deals with what happened during service and not the questions of either the existence of current disability or a nexus to service.  Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed.Cir. 2009) (finding that 38 U.S.C.A. § 1154(b) does not require controlling weight be given to testimony as to the cause of a combat veteran's death); see also 38 C.F.R. § 3.304(d).

To establish service connection for PTSD, there must be a medical diagnosis of PTSD, a link between the PTSD diagnosis and the in-service stressor, and "credible supporting evidence that the claimed in-service stressor occurred."  38 C.F.R. § 3.304(f).  VA regulations allow a veteran's lay testimony alone to constitute the credible supporting evidence required for stressors related to combat in which the veteran engaged, a veteran's fear of hostile military or terrorist activity, or a veteran's experience being a prisoner of war.  38 C.F.R. § 3.304(f)(2)-(4).  Specifically, if the evidence establishes that the veteran experienced a specific event that caused the claimed stressor (e.g., that the veteran engaged in combat with the enemy), and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the VA allows the veteran to establish the occurrence of the claimed stressor through the veteran's "lay testimony alone" when there is no clear and convincing evidence to the contrary.  Id.  In contrast, when the stressor is related to an in-service personal assault, which includes military sexual trauma (MST), a veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor.  38 C.F.R. § 3.304(f)(5).  

Effective July 13, 2010, 38 C.F.R. § 3.304(f) (3) was added, which reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity.  See 75 Fed.Reg. 39843 through 39852 (July 13, 2010). 

The revised 38 C.F.R. § 3.304(f)(3) provides: 

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 

38C.F.R. 3.304(f)(3).  

A clear diagnosis of PTSD by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be proper with respect to the sufficiency of stressor(s) and adequacy of symptomatology needed to make the diagnosis.  Cohen v. Brown, 10 Vet. App. 128, 140 (1997).  However, an opinion of a mental health professional generally cannot be used to establish the occurrence of a stressor.  Cohen, at 142, (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); and Doran v. Brown, 6 Vet. App. 283, 289 (1994)).  Moreover, M21-1 provides that "[a] stressor is not to be limited to just one single episode.  A group of experiences also may affect an individual, leading to a diagnosis of PTSD."  M21-1, Part VI, para. 7.46(b)(2) (1995) and M21-1, Subch. XII, para. 50.45(f)(2) (1989).  Cohen, at 142.  

In substance, under the revised 38 C.F.R. § 3.304(f)(3) service connection can be granted for PTSD if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA.  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. § 3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

Generally in the reopening context lay evidence is presumed to be credible but if an application to reopen is granted, a de novo adjudication requires assessing the credibility of lay evidence.  That is, competent lay evidence must be weighed to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility (which is not assessed in the reopening context) of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009).  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered") and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service).  

Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements opposing consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).

Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001).

Steatohepatitis

The STRs show that the Veteran had acquired Hepatitis A in 1986, prior to his first period of active duty, for which he had been hospitalized prior to service.  The report of the hospitalization from the 22nd to the 28th of February 1986 is associated with the STRs and reveals that after returning from a visit to Mexico he was found to have Hepatitis A.  

In late 1991 and early 1992 it was noted that the Veteran was taking Accutane for acne vulgaris with a cystic component.  

A June 2003 Post Deployment Health Assessment shows that as to his 2003 active duty deployment he reported that had not put on his gas mask at any time due to an alert and not because of exercises.  He did not think that he was exposed to any chemical, biological or radiological warfare agents during his deployment.  He did not have any concerns about possible exposure or events during the deployment which he might feel could affect his health.  

A 2006 VAOPT record shows that the Veteran had a history of chronic elevation of liver function tests with steatohepatosis.  

The Veteran was notified of a July 2007 rating decision which denied service connection for steatohepatitis but he did not appeal that decision and it is final.  The claim was denied on the basis that steatohepatitis had first been diagnosed at the Hines, VA Medical Center in May 2006, years after termination of both periods of active service and the evidence did not show that it was incurred or aggravated during service.  

No new STRs have been received.  38 C.F.R. § 3.156(c).  Also, no new and relevant clinical or other records, including VA treatment records, were received within one year of the notice of the July 2007 RO denial.  As a result, that RO's decision became final.  38 U.S.C.A. §§ 7105; 38 C.F.R. §§ 3.156(b) and (c), 20.200, 20.201, 20.302, 20.1103.  Accordingly, and regardless of a determination by the RO as to reopening, the claim may now be considered on the merits only if the Board finds that new and material evidence has been received since the prior adjudication.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  

For claims to reopen filed on or after August 29, 2001-such as the Veteran's-evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

The determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  New evidence is that which would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger VA's duty to assist by providing a medical opinion.  Id.  

VA will not provide a VA nexus examination in the reopening context but will if the claim is reopened.  38 C.F.R. § 3.159(c)(4).  However, this does not mean that a claimant must submit a medical nexus opinion to reopen a claim which was denied based in part on an absence of medical nexus evidence.  Rather, lay evidence which is new and material could trigger VA's duty to assist to obtain a medical opinion or consideration of a new theory.  Thus, new and material evidence is that which raises the likely entitlement to a nexus medical opinion (not service connection) if the claim were to be reopened.  

A September 2013 rating decision found that there was new and material evidence to reopen the claim for service connection for steatohepatitis but the claim was denied on the merits.  Regardless of a determination by the RO as to reopening, the claim may now be considered on the merits only if the Board finds that new and material evidence has been received since the prior adjudication.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Here, the Veteran has claimed that his steatohepatitis may have been caused or aggravated by medication, Accutane, prescribed for his service-connected acne.  This is a new theory of entitlement to service connection.  Because he took this medication during his first period of active duty, the claim for service connection is reopened.  It was for this reason he was afforded a VA examination in March 2011 to obtain a medical opinion.  

A January 2011 report from the Veteran's treating VA physician states that the Veteran carried a diagnosis of nonalcoholic steatohepatitis based on a May 2006 liver biopsy which had been performed due to in his liver function tests at that time.  In part, the elevation of his liver function tests was associated with statin therapy.  His liver function tests eventually normalized with discontinuation of statin therapy, remaining so until only recently, in the setting of resumption of statin treatment.  He had previously been followed with by liver specialist but was discharged from specialty care in 2006 upon normalization of his liver functions tests.  

The March 2011 VA dermatology examination noted that the Veteran had been diagnosed with acne in 1991 and had been started on Accutane at that time.  He was on that medication for 8 months to one year.  The Accutane had helped his acne but he was taken off that medication because of elevated liver enzymes.  Thereafter, he used only over-the-counter topical medications for acne.  He was first diagnosed with nonalcoholic steatohepatitis (NASH) in 2006.  The diagnosis was cystic acne which was more likely than not related to military service.  His cystic acne had been diagnosed by a dermatologist during service and, at that time, treated with Accutane.  Laboratory noted in June 1992 indicated elevated lipids while on Accutane.  The physician's assistant that conducted the examination indicated that whether the NASH could be due to inservice use of Accutane would have to be answered by another.  In April 2011 a VA nurse practitioner addressed this question.  The record was reviewed, including laboratory tests and a liver biopsy in 2006.  It was opined that the NASH was not due to or aggravated by the Veteran's use of Accutane.  

On VA psychiatric examination in September 2013 it was reported that the Veteran had had hepatitis at age 13 and had been hospitalized for a week.  

As to steatohepatitis, the Veteran testified that this had first been diagnosed about 10 to 12 years ago (i.e., 2004 to 2006), which was roughly around the same time that sleep apnea had been diagnosed.  Page 6.  It had first been diagnosed at the Hines, VA Medical Center.  All of his treatment for steatohepatitis had been though VA and there had been no private medical treatment.  While not a physician, he believed that there was a latency period between when steatohepatitis would first be contracted and when it could be diagnosed.  Page 7.  He testified that he had a Combat Action Ribbon and had been in Desert Storm during the 1990 to 1994 conflict, stationed on the USS Olendorf, DD-972, which was in the "front line of the first war."  He recalled a lot of oil rigs burning and a lot of chemicals being in the air which could have exposed him to chemicals or biological or radiological contaminants which could have been the cause of his steatohepatitis.  He had never requested a nexus medical opinion from any treating physician but it was possible that such could be in his records.  It was requested that this potential etiology be investigated by VA.  Page 8.  

At the videoconference it was noted that although this claim for service connection for steatohepatitis had previously been denied, a new theory was also being asserted, which was that medication prescribed during service for the Veteran's now service-connected acne, i.e., Accutane, could have been a contributing factor in damaging his liver.  Page 9.  The Veteran concurred with the presiding VLJ that there was a contention that steatohepatitis was due to inservice exposure to chemicals from burning oil and other environmental hazards in Operation Desert Storm, and also that medication for acne was a risk factor for developing steatohepatitis and could have either cause or aggravated the steatohepatitis.  Page 17.  

Analysis

The Veteran does note dispute that he had Hepatitis A as a child, for which he was hospitalized prior to both of his periods of active duty.  He now alleges a nexus between his steatohepatitis, or NASH, as either by having taken Accutane during service for his now service-connected acne or by virtue inservice exposure to various potential contaminants.  

As to the first contention, i.e., his having taken Accutane for his now service-connected acne, it is asserted that the provisions of secondary service connection or secondary aggravation, under 38 C.F.R. § 3.310(a) and (b) apply.  However, it is clear from the record that he took Accutane during his active service in the 1990s.  Thus, the provisions of secondary service connection or secondary aggravation need not be applied.  Rather, the question is whether the inservice administration of Accutane caused or aggravated his steatohepatitis.  This matter was addressed in the April 2011 VA medical opinion and, unfortunately, that opinion was in the negative.  While that opinion did not specifically address the Veteran's lay belief that there would be a latency period between when steatohepatitis was first contracted and when it was first diagnosed, which in this case was in 2006 about three years after termination of his last period of active service, he has offered nothing other than this lay opinion which is beyond his competency inasmuch as he lacks the necessary education, training and expertise to render a competent medical opinion in this regard.  

As to a nexus between steatohepatitis and potential inservice exposure to contaminants, this again is a matter beyond the Veteran's competence and lacking any other evidence is no more than a resort to mere speculation.  As to the comment at the videoconference that he had not asked any treating VA physicians for a medical opinion in this regard and the request that such a possible connection be investigated, the Board has reviewed the Veteran's voluminous VA treatment records.  The VA treatment records contain no medical opinions or even comments which would even remotely suggest that there is any such nexus.  

Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran's steatohepatitis first manifested years after termination of both periods of active service and is unrelated to either period of active duty and any event, circumstance or environmental exposures during any period of service, and is also unrelated to taking medication during service for his now service-connected acne.  Thus, there is no doubt to be favorable resolved in favor of the Veteran under 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102.  

Acquired psychiatric disorder, to include an anxiety disorder and an adjustment disorder

The Veteran's DD 214 as to his first period of service shows that he served in the Navy from July 1990 to July 1994 and was awarded the National Defense Service Medal, Sea Service Deployment Ribbon (2), the Southwest Asia Service Medal, the Navy Unit Commendation Medal, the Armed Forces Expeditionary Medal, "Battle 'E' Ribbon (2)," and the Combat Action Ribbon.  He had 3 years and 6 months of sea service but no foreign service.  

The Veteran's DD 214 as to his second period of service shows that he served in the Navy from February 25th to July 15th 2003.  He had no sea service but had 3 months of foreign service.  He was awarded the Southwest Asia Service Medal with Bronze Star; Sea Service Deployment Ribbon (2), the Armed Forces Reserve Medal with "M" Device; Kuwait Liberation Medal.  He had been mobilized in support of Operations Noble Eagle and Enduring Freedom.  

STRs during both periods of active duty are negative for symptoms, signs, complaint, history or treatment for psychiatric disability.  

A June 2003 Post Deployment Health Assessment shows that as to his 2003 active duty deployment he reported that he had not seen anyone wounded or killed, had not engaged in direct combat in which he discharged a weapon, and had not felt that he was in danger of being killed.  He was not interested in receiving help for a stress, emotional, alcohol or family problem.  He had not had any experience that was so frightening, horrible or upsetting that in the past month he had had nightmares, was on guard or easily startled or felt numb or detached.  He had not sought counseling or care for his mental health.  

A November 2011 VA Mental Health record shows that the Veteran reported having "PTSD" and that his "triggers" were African Americans and wheelchairs which would make him recall the anxiety his VA job provoked.  He did not re-experience events, did not have nightmares, and did not avoid anything that could remind him of his job.  

On VA psychiatric examination in July 2013 it was reported that the Veteran's diagnoses were an anxiety disorder, not otherwise specified (NOS) and a personality disorder, NOS, with borderline traits.  The examiner reported that although the Veteran denied any childhood sexual abuse at the current examination, a treatment note by Dr. Z. of December 13, 2011, indicated that the Veteran had been sexually abused by a priest at age 12.  The diocese had referred him for consultation with his parents for six (6) months thereafter.  He and his domestic partner were adopting a foster child.  He had been deployed to Saudi Arabia during Operation Desert Storm, and had also served in Naples, Italy.  He had worked at a VA Medical Center from May to December 2011 as a travel pay supervisor but had been threatened by veterans to whom he denied travel pay and had been terminated after calling one veteran a liar, although he had the termination changed to a resignation.  He was filing a workers compensation claim for anxiety caused by his work at the VA Medical Center.  

The Veteran reported that he had no mental health problems or treatment prior to military service.  The examiner noted that this seemed to contradict the Veteran's earlier report to Dr. Z. of having had treatment for childhood abuse by a priest.  The Veteran had never seen a military mental health provider but he reported that he had noticed some memory loss in 2006.  He had first sought out mental health services in September 2011, at the Hines VA Medical Center.  At that time he denied feeling depressed but stated his main problem was stress caused by his new employment position with VA.  He stated that work stress was straining his relationships with his partner and child, and he had then gone to the Hines VA Medical Center in November 2011 for sleep and anxiety issues.  In November 2011 he had stated that the anxiety had first started six (6) months earlier when he began working as a travel pay supervisor and after having been physically threatened eight (8) times by veterans.  At the current examination the Veteran agreed that his anxiety had begun in 2011 and was due to a hostile work environment.  In November 2011 he reported having "PTSD" and panic attacks but he did not meet the criteria for either diagnosis.  He did not endorse having any anxiety prior to May 2011, and was diagnosed with an adjustment disorder with anxiety.  It was noted that the Veteran occasionally felt sad when he lost control with his son.  When he had been at work in the past, he had cried easily and had to leave work when he was stressed out.  

The examiner opined that it was not likely that the Veteran's anxiety disorder, NOS, or personality disorder, NOS, were due to fear of hostile military or terrorist activity during his military service.  Also, there was no evidence from the current examination or from past mental health treatment notes that the Veteran's symptoms were related to any military activity or his Combat Action Badge.  Further, it was more likely than not that his anxiety disorder and personality disorder, NOS, were related to being sexually abused by a priest at age 12.  His mental health treatment note of December 13, 2011, documented his treatment for 6 months for sexual abuse prior to military service.  Also, work related stress in 2011 increased his symptoms of anxiety and anger.  It was more likely than not that his vocational difficulties were related to his personality disorder, with poor coping strategies, verbal aggression, mood instability, and interpersonal difficulties.  

A September 2013 record from a VA Mental Health clinic shows that the Veteran reported that during Operation Desert Storm he had been on a Navy ship which was shot at, and he was awarded Combat Action Ribbon.  He was in charge of surveillance for water mines.  As he started to talk about this he became very tearful.  The Veteran's concerns and confusion regarding lack of PTSD diagnosis were discussed.  An assessment of PTSD symptoms was conducted, and the Veteran did not endorse the required symptoms and severity of symptoms to meet criteria for a PTSD diagnosis at that time.  Other treatment records in 2012 and 2013 focused on the Veteran's attempts to obtain workers compensation benefits for psychiatric disability related to his past VA employment.  

In a February 19, 2014, Report of General Information it was noted that the Veteran reported that his having been sexually abuse as a child, as reported by a VA examiner, was not correct.  Rather, there had been one attempt at molestation, but nothing happened.  He reported that his psychologist had told him that the reason his PTSD symptoms had not begun during service due to the support system provided by his shipmates.  

In VA Form 21-4138, Statement in Support of Claim, in February 2014 the Veteran reported that he had an anxiety disorder which began while he was on the USS Olendorf (DD972) during the Persian Gulf War. He had been in-country and experienced combat action.  He was awarded the Combat Action Ribbon due to being in a war zone and having to man a 5 inch machine gun on the starboard side of the ship while being shot at by the enemy in approximately March 1991.  He was also in charge of manning the stern and bow of the ship in search of water mines and was part of the constant General Quarters alarms whenever they were "under attack."  He had seen dead bodies floating in the waters of the Persian Gulf and also saw the oil rigs burning for months off the Kuwaiti shoreline.  Being shot at by a land to water missile was the most traumatic event that still affected him.  He could still see the missile traveling towards his ship before it was shot down by a friendly ship and, thus, he had experienced a near death attack.  His psychiatric symptoms had manifested beginning in June 2011 during his employment at the Jesse Brown VAMC when he was surrounded by plenty of other veterans and had been "under attack" from some of them because he was the Travel Pay Supervisor, having to endured verbal assaults and threats of physical harm.  In relation to the alleged childhood molestation, the priest had been reprimanded and he and his family had received one counseling session paid for by the Catholic Church in 1984.  He stated that this event in no way contributed to his mental disorder.  

The Veteran was again afforded a VA psychiatric examination in September 2014, which was conducted by the same examiner that performed the 2013 VA psychiatric examination.  It was reported that the diagnoses were an unspecified anxiety disorder and an unspecified personality disorder with borderline traits.  The examiner reviewed the Veteran's mental health treatment records since July 2013.  It was noted that the Veteran continued to be in the Navy reserves, which he had been in for the past 24 years, after 4 years of active duty which included service in Iraq.  He reported that in the reserves he now worked at veterans funerals and that he loved what he did, reporting that it brought him happiness.  He had had sporadic attendance at individual therapy sessions, having quit several times but most recently he had seen a therapist in July 2014 when he discussed relationship problems and parenting issues.  At his last session he had reported that he was anxious with family and authority figures.  It was again noted the prior treatment notes indicated that he had been sexually abused by a priest and referred for consultation.  During the examination the Veteran did not mention any specific military stressors.  He became tearful when discussing having had thought of harming his son, but regained his composure.  

The examiner observed that the Veteran's statement in support of his claim, dated February 20, 2014, indicated that his anxiety disorder began during the Persian Gulf War but his symptoms were first manifested in 2011 as a result of work-related stress.  It was noted that there was no evidence in his service treatment records or mental health treatment records of any anxiety symptoms prior to 2011.  The examiner reported that the Veteran did not meet the full criteria for PTSD on the current examination, despite describing potentially traumatic military experiences in his statement in support of his claim.  Moreover, the examiner noted that the Veteran did not avoid military activities but, rather, loved his naval reserve work at military funerals and the camaraderie of his friends in the reserves.  In fact, the Veteran reported that he planned to work in the reserves at military funerals until he was 60 years of age, and collect a pension.  He did not describe any emotional numbing but was overly emotional, which was related to his personality disorder.  

As to behavioral observations during the examination the Veteran became visibly upset, but did not cry, when he spoke about the Pritzker Military Museum but later in the examination he began crying when describing thoughts of harming his son when his son frustrated him.  It was noted that he had had an "anxiety" attack and began crying last week when he had been with military friends, which led him to take some psychotropic medication.  He reported having "panic" attacks during which his face twitched and he felt nervous but the examiner reported that these appeared to be anxiety symptoms and not true panic attacks.  

The examiner reported that the Veteran continued to be diagnosed with an unspecified anxiety disorder and unspecified personality disorder with borderline features.  It was not likely that either of these diagnoses were related to military service.  The Veteran did not meet the criteria for a diagnosis of PTSD at the current examination, or in the past.  It was more likely than not that the anxiety disorder and personality disorder were related to childhood sexual abuse and growing up with an alcoholic father.  

As to psychiatric disability, at the videoconference it was indicated by the service representative that statements in the VA Form 9 indicated that the diagnoses of a personality disorder, anxiety disorder, and adjustment disorder were actually misdiagnoses, and that a VA Form 21-4138, Statement in Support of Claim submitted at about the time of the VA Form 9 was actually a stressor statement in which the Veteran attributed his mental health disability "to the Combat Action Ribbon" he received for participation on Operation Desert Storm.  Pages 11 and 12.  The Veteran testified that he suffered from flashback, nightmares, intrusive thought, and re-experiencing symptoms, as well as avoidance behavior.  Page 12.  He testified that he was still in the reserves, performing military funeral honors and only 2 days ago while performing his duties he had walked into a room with other military personnel and experienced anxiety and had to leave.  He testified that "[e]ven though I was not in a hostile environment, it did bring me back to being in a military setting."  Page 12.  

The Veteran also testified that it was now more difficult to emote "post-combat" than "pre-combat."  Page 12.  He had outbursts of anger and was hypervigilant.  He had been terminated from VA in 2011 because he had been surrounded by many veterans and he had outbursts with them, such that he could not work.  The service representative stated that the Veteran's receipt of the Combat Action Ribbon required VA to concede that he had a stressor and that the Veteran now endorsed all four categories of PTSD symptoms, and, so, the Veteran actually had PTSD, with the earlier diagnoses of a personality disorder, anxiety disorder, and adjustment disorder having been misdiagnoses.  It was requested that a VA medical opinion be obtained which addressed this matter.  Page 13.  The Veteran also testified that he had been disappointed by the report of a mental health examination which he had been afforded because the report stated that he had been sexually abused multiple times by a priest prior to military service; however, the Veteran testified that this was false.  He had been denied VA mental health treatment due to this false report.  He had stated on one occasion that a priest had tried (unsuccessfully) to molest him but it was absolutely false to state that he had been molested many times.  Page 16.  

Analysis

Initially the Board notes that there is evidence that the Veteran has a personality disorder.  However, personality disorders are not acquired psychiatric disabilities for which service connection may be granted.  See 38 C.F.R. § 3.303(c).  

With respect to PTSD, the Veteran's contends that the matter of sexual molestation or attempted sexual molestation by a priest prior to service played no role in his development a psychiatric disability but, rather, his inservice combat experiences caused anxiety and PTSD which had not manifested during service because, according to his treating clinician, he had the support of fellow servicemembers but the symptomatology was trigger by stresses he endured in his postservice VA employment and that the diagnoses of an anxiety disorder and personality disorder were, in fact, misdiagnoses.  

In this regard, the Veteran concedes that he neither sought nor received psychiatric treatment during either period of active duty.  Significantly, his 2003 Post Deployment Health Assessment shows that he specifically denied having the types of signs and symptoms of any psychiatric disability, and particularly those characteristic of PTSD.  He testified that symptoms of PTSD were of delayed onset and that it was explained to him by his treating clinician that this was due to the support of fellow servicemembers.  However, a review of the Veteran's VA clinical records contains not such comment or opinion.  

Also with respect to PTSD the Veteran focuses on what he reports was an incorrected clinical history recorded by a VA psychiatric examiner in 2013, vis-à-vis, an attempted childhood molestation.  However, that same VA examiner re-examined him in September 2014 at which time the Veteran's Report of General Information and VA Form 21-4138, Statement in Support of Claim, both in February 2014 were of record and contain the information that he had not actually been sexually molested but that there had only been an unsuccessful attempt followed by only one counseling session.  As to this, regardless of the accuracy of recording his clinical history the fact remains that both of the VA psychiatric examinations, in 2013 and 2014, found that he did not meet the criteria for a diagnosis of PTSD even after considering his putative combat stressors.  

The Board concedes that the Veteran was in combat during service.  However, even if was in combat this is not necessarily the same as having undergone experiences that necessarily cause chronic psychiatric disability, such as PTSD, and having resulting chronic disability.  In other words, even though he was exposed to enemy fire during service, this does not automatically mean that he incurred a chronic psychiatric disorder, including PTSD.  The Veteran and his representative have not pointed to any such statutory or regulatory presumption to this effect, and the Board is aware of none.  Thus, while not disagreeing that the Veteran participated in combat under the circumstances which he has described, the Board rejects the notion that his current psychiatric disorders must necessarily be conceded as being due to inservice combat.  

The Veteran first alleged having PTSD in 2011 but, as noted by the contemporaneous VA clinical record in 2011 and by the VA psychiatric examiner that conducted the VA psychiatric examinations in 2013 and 2014, the Veteran's symptoms at that time had existed for only 6 months and were related to stress and anxiety in connection with his VA employment.  In fact, his reported triggers in 2011 made him recall the anxiety that this employment had provoked.  Moreover, it is clear that he has tried to obtain workers compensation on this very basis.  

At the time of the 2016 videoconference the Veteran's service representative elicited testimony from the Veteran which the service representative then alleged met the criteria for a diagnosis of PTSD.  However, this is in stark contrast to the information elicited at the 2013 and 2014 VA psychiatric examinations which, while recording some of his military experiences, specifically found that he did not meet the criteria for a diagnosis of PTSD.  Indeed, the 2014 VA psychiatric examination noted that the Veteran's reports of panic attacks appeared to be only symptoms of anxiety and not true panic attacks.  As to the Veteran's testimony that while performing funeral honor guard duties he had had anxiety which while not in a hostile environment brought him back to a "military setting," the 2014 VA psychiatric examination indicated that a similar experience had only been an anxiety attack.  

With respect to the diagnosed anxiety disorder, the Board gives more probative value to the contemporary evidence of record, as opposed to the Veteran's more recent recollections of his feelings, e. g., of anxiety, many years earlier.  This is because when the Veteran first complained of psychiatric symptoms, and particularly anxiety, he reported in 2011 that it had begun only 6 months earlier and was due to stress in his postservice VA employment.  The fact that the Veteran has sought workers compensation on this basis is consistent with the opinions expressed by the VA psychiatric examiner in 2013 and 2014 that the diagnosed anxiety disorder was due to matters prior to or after the Veteran's periods of military service, or both.  

Lastly, it was contended by the service representative at the videoconference that based on the Veteran's testimony endorsing symptoms of PTSD, this was proof that the diagnoses of an anxiety disorder and a personality disorder were actually misdiagnoses.  While the Veteran did, in a very summary form, testify as to symptoms of PTSD, the Board cannot ignore that at the time of the July 2013 VA psychiatric examination, the September 2013 VA Mental Health clinic record, and the September 2014 VA psychiatric examination it was determined that he did not have PTSD.  Thus, there is no merit to the contention of the Veteran's service representative at the videoconference that further investigation as to the possibility that PTSD has been misdiagnosed.  

Accordingly, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder, and an adjustment disorder.  

GI disorder, to include GERD

The Veteran's STRs are negative for a GI disorder, including GERD.  

A June 2003 Post Deployment Health Assessment shows that as to his 2003 active duty deployment he reported that he had not put on his gas mask at any time due to an alert and not because of exercises.  He did not think that he was exposed to any chemical, biological or radiological warfare agents during his deployment.  While deployed he was sometimes exposed to vehicle or truck exhaust fumes.  He did not have any concerns about possible exposure or events during the deployment which he might feel could affect his health.  

A 2006 VAOPT record shows that the Veteran had GERD.   A May 2009 esogastroduodenoscopy (EGD) confirmed the presence of a hiatal hernia.  

A May 31, 2012, VAOPT record shows that the Veteran underwent a Gulf War registry evaluation.  His environmental exposure were small particulate matter, smoke from oil well fires, fuel from ships, diesel jet fuel, paint solvents and primers, volatile organic compound exposures and lead, cigarette smoke from other, and smoke contaminated water and food.  There was a discussion with the Veteran of the three presumptive conditions related to the Gulf War, i.e., fibromyalgia, irritable bowel syndrome (IBS), and chronic fatigue syndrome (CFS) but at the current time he did not have symptoms or diagnosis of these conditions.  

On gastrointestinal (GI) examination as part of a VA Gulf War General Medical examination in June 2013 it was reported that the Veteran had multiple GI complaints including episodic right upper quadrant (RUQ) discomfort, episodic dysphagia, heartburn, and loose stools with bowel movements about 1 to -2 times a day.  Regarding symptoms of loose stools, he claimed that since he had increase dose of Sertraline and started on Bupropion, his bowels had become more firm.  He continued to have a sense of bowel urgency.  He claimed that this began about 10 years ago at a "minimum".  He denied abdominal discomfort other than RUQ discomfort.  He denied generalized abdominal discomfort.  He had had a colonoscopy in 2009 which was within normal limits.  The report of the 2013 examination noted that an October 2008 abdominal CT scan, when comparted to a January 2008 CT scan, revealed mild hepatomegaly with fatty infiltration in the liver.  There was diverticulosis of the sigmoid colon.  

Regarding his RUQ pain, this had been opined to be related to hepatic capsular strain from steatohepatitis.  He had had a sigmoid colon workup regarding this, including an ultrasound and other studies which were grossly unremarkable other than hepatomegaly and fatty infiltration.  He had had a liver biopsy in May 2006 which had documented a fatty liver.  In addition, RUQ discomfort worsened when he was over "200 pounds".  Regarding GERD, his symptoms had been present for about 10 years, although not diagnosed until 2006.  He no longer took medication for GERD.  He believes that loss of weight had also helped with this.  He had an EGD in 2009 which had revealed +H. Pylori and gastric inflammation, and which had been treated.  

The examiner stated that the diagnoses were steatohepatitis and GERD.  The GERD was less likely than not related to Gulf War service given that the diagnosis was not made until 2006.  As to steatohepatitis, an opinion had already been generated that this was not related to service.  Regarding his symptoms of loose stool, this was without a clear diagnosis.  There was no apparent irritable bowel syndrome (IBS) because the Veteran did not meet the diagnostic criteria for a diagnosis of IBS.  However, these symptoms were also less likely than not related to Gulf War exposure and the rationale was that the Veteran had denied GI disturbance on post deployment health history.  

As to a GI condition, the Veteran testified at the videoconference that GERD had first been diagnosed about 12 years ago at the Hines, VA Medical Center and his current symptoms were a closing of the esophagus when eating and having gas.  He was taking Omeprazole for this as well as calcium tablets, and medication, Flonase, for opening is nostrils.  Page 10.  He had had symptoms of GERD during service and within one year of service discharge.  Page 11.  The Veteran testified that he could not recall is symptoms of GERD during his service from 1990 to 1994.  Page 18.  

Analysis

Initially, the Board finds that the Veteran's STRs of both periods of service are negative for a chronic GI disease, including GERD.  In this regard, the Board notes that gastroesophageal reflux is the "reverse flow of material from stomach to esophagus."  Cox v. Brown, 5 Vet. App. 95, 97 (1993).  

The Board concedes that the Veteran served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War.  However, the Veteran has been diagnosed as having GERD which is a recognized disease and, as such, is not an undiagnosed chronic illness.  His symptoms of GERD include those related to heartburn and accompanying dysphagia, and his right upper quadrant pain is clinically shown to be due to his nonservice-connected nonalcoholic steatohepatitis.  Similarly, he recently related having loose stools and while the VA examination indicated that this was without a clear diagnosis, there is evidence that he now has diverticulosis of the sigmoid colon.  Thus, the Veteran is not shown to have a medically unexplained chronic multi-symptom illness.  

Likewise, the VA examiner in 2013 found that the Veteran did not meet the criteria for IBS and, so, presumptive service connection is not warranted for IBS.  The Veteran's testimony that he had symptoms of GERD during service was the same as the clinical history related at the 2013 VA examination, when he reported having symptoms of GERD for 10 years although it was not diagnosed until 2006.  Nevertheless, because the STRs were negative and the 2003 Post Deployment Health Assessment was negative for GI complaints, the medical opinion was that GERD was unrelated to the Veteran's Gulf War service.  Since service, with fluctuation in the Veteran's weight he has had accompanying fluctuations in his symptomatology due to GERD and, so, there is no lack of an explanation as to the variation of this GI symptomatology.  

In sum, the evidence fails to demonstrate that the Veteran's potential exposure to a variety of possible contaminants and his service in Southwest Asia during the Persian Gulf Conflict are related in any manner to any existing GERD or other GI disease, e.g., steatohepatitis, or to any of his GI symptoms.  Accordingly, service connection for a GI disorder, to include GERD, is not warranted.  


ORDER

The application to reopen the claim for service connection for steatohepatitis is granted.  

Upon de novo review, service connection for steatohepatitis is denied.  

Service connection for acquired psychiatric disorder, to include PTDS, an anxiety disorder, and an adjustment disorder is denied. 

Service connection for a GI disorder, to include GERD, is denied.  


REMAND

Because additional evidence has been received pertaining to the claims for service connection for sleep apnea and for a low back disorder which the RO has not had the opportunity to review, and initial RO consideration of that evidence has not been waived, these claims must be remanded.  

Sleep apnea, claimed as due to Gulf War hazards

A June 2003 Post Deployment Health Assessment shows that as to his 2003 active duty deployment he reported that he had not put on his gas mask at any time due to an alert and not because of exercises.  He did not think that he was exposed to any chemical, biological or radiological warfare agents during his deployment.  While deployed he was sometimes exposed to vehicle or truck exhaust fumes.  He did not have any concerns about possible exposure or events during the deployment which he might feel could affect his health.  He also reported that since his deployment he still felt tired after sleeping.

A 2006 VAOPT record shows that the Veteran had obstructive sleep apnea for which he used a CPAP device.  

A June 22, 2012, VAOPT record noted that the Veteran had a history of status post septoplasty, uvulopalatopharyngoplasty, and tonsillectomy in April 2007.  

On VA Gulf War General Medical examination in June 2013 it was reported that the Veteran had been diagnosed as having sleep apnea.  

A September 2013 record from a VA Mental Health clinic shows that the Veteran reported that as to obstructive sleep apnea (OSA) he had had his adenoids removed.  He slept in a supine position to help him due to the OSA and, as a result, he did not need to use the CPAP device.

At the July 2016 videoconference the Veteran testified that he had first been diagnosed with sleep apnea about 12 years ago and he had since been prescribed a CPAP machine and had had surgery to remove tissue from his throat to open his airway.  However, he had only had a 50 percent improvement and, so, still had sleep apnea.  Page 3 of the transcript.  He testified that he had been demobilized in 2003 and that he possibly had been treated within one year thereof at the Hines, VA Medical Center.  His active duty had been from 1990 to 1994 and he did not believe that there were any other sailors who could now recall any of his excessive snoring or gasping for air at night because the ship he was stationed on was a very loud environment, to such an extent that others would not have been able to hear him.  Page 4.  However, he would attempt to obtain a supporting statement from his military roommate.  Page 5.  It was agreed to hold the record open until September 15, 2016 for the submission of supporting lay statements.  Page 6.  The Veteran believed that there was one comrade who could attest to his inservice sleep disturbance and the Veteran would seek such a supporting statement.  Page 17.  

Following the testimony at the videoconference a September 2016 statement was received from the Veteran's domestic partner.  It was stated that they had been in such a relationship since January 2001.  The domestic partner reported that in July 2003 after the Veteran's demobilization he began to snore very loudly, and at times when he snored he would stop breathing.  On one occasion it sounded as if the Veteran were choking and gasping for air.  He now continued to snore loudly and stop breathing at night.  He went to a physician to check his swollen uvula and had then had surgery to remove extra tissue in his throat, but his sleep apnea had persisted.  A physician had ordered a sleep study and the Veteran had been given a CPAP machine.  

Also received in September 2016 was a statement from T. S., a fellow naval reservist that served with the Veteran in the navy reserves from 2003 to 2010.  They had together performed annual training, individual duty training (IDT) and Funeral Honors Team since 2004.  They had been assigned to Navy Funeral Honors details a few times per month.  He had observed the Veteran almost on a weekly basis for the past 12 years.  When tasked to perform IDT together in May 2004 for four days, they had been assigned to the same sleeping quarters.  At night the Veteran would snore and breathe loudly for extended amount of time and, sometimes, become very quiet as if he had stopped breathing.  It became evident that he had some type of breathing problem.  After awaking he could not appear well rested and he would complain of headaches.  He had not been able to keep up with others due to a lack of sleep.  

Also received in September 2016 was another statement from A. W., a servicemember who, during active duty, had served with the Veteran in Naval Support Activity, Naples, Italy, from May to July 2003 during the Veteran's mobilization as a Navy Reservist.  He had seen the Veteran have a lot of daytime sleepiness and complained of morning headaches and have difficulty concentrating and memorizing mail sorting regulations.  He would fall asleep at inappropriate times.  

Low Back Disorder

A June 2003 service clinical record in conjunction with a post deployment medical screening shows that the Veteran complained of low back pain which he reported developed from his work as a mail handler.  After an examination the assessment was "documented LBP [low back pain]."  

A June 2003 Post Deployment Health Assessment shows that as to his 2003 active duty deployment he reported that since that deployment he had had back pain.  His only concerns were lower back pain and left lower extremity varicose veins.  It was commented that his back pain was currently acute but if it became chronic he was to follow-up with a primary care provider.  

A May 15, 2014, VAOPT record shows that the Veteran reported having had chronic low back pain for 5 years and that he denied any trauma at onset.  It was reported that a lumbar MRI several years ago found multi-level degenerative disc disease.  

At the September 2014 VA examination the Veteran reported that his low back began in 2003 when he was moving boxes as a postal clerk in the reserves, just prior to deployment.  He had not sought treatment for back pain during service but had mentioned it on his post-deployment physical assessment.  He reported having suffered from back pain though that period of service.  He reported that he continued to have left-sided low back pain.  He had difficulty bearing weight on his left leg due to left-sided varicose vein surgery and he believed that this might be affecting his low back as well.  He reported still receiving VA treatment for back pain.  On physical examination it was reported that he did not have intervertebral disc syndrome (IVDS).  X-rays of May 2014 revealed no fracture or subluxation of the thoracic spine, normal lumbar lordosis, no significant degenerative changes, and that the intervertebral disc spaces were maintained.  

With respect to whether the Veteran's low back disorder, manifested by chronic back pain, was at least as likely as not related to back pain noted at the time of the June 2003 post-deployment assessment, the examiner opined that it was not.  The rationale was that in reviewing the Veteran's VBMS file, Vista Web, and Hines VA Medical Center treatment records, there was no diagnosis of a back disorder until May 15, 2014.  Dr. V. M. diagnosed the Veteran has having chronic low back pain, and that physician noted that the Veteran claimed that his back pain started about 5 years earlier, i.e., which would be 2009.  The mechanism of injury or precipitating incident was not noted in Dr. V. M.'s note.  The Veteran sought no treatment for his back pain until 2014, after his initial claim was denied and the VA rating narrative mentioned that his VA treatment records were silent regarding any complaint of or treatment for back pain until 2014, and the rating narrative mentioned that his VA treatment records were negative for any complaint of or treatment for low back pain.  The examiner stated that there was no way to connect the Veteran's post-deployment health assessment complaint of back pain with his current diagnosis eleven (11) years later.  

As to the claimed low back disorder, at the videoconference the Veteran testified that this had first been diagnosed on his exit physical examination from active duty in July 2003, when he was demobilized.  He had not sought treatment for low back disability during service.  His military duties in 2003 had been as a postal clerk and he had to carry up to 70 pounds of packages, while stationed in Naples, Italy and it was then that he experienced low back pain.  Page 14.  He had been in multiple car accidents since that time while performing his military duties in a funeral guard.  In April 2015 he was in a vehicle that was rear-ended in a car accident while returning from a funeral honor detail, which had been determined to be in the line of duty.  Unfortunately, it happened again in November 2015 while returning from an honor funeral detail, i.e., his vehicle was again rear-ended, which aggravated his back pain, and this also had been determined to be in the line of duty.  Page 15.  The Veteran testified that both of the car accidents had occurred during periods of inactive duty for training (INACDUTRA).  Pages 21 and 22.  

On file are records of the Sparc Chiropractic clinic reflecting treatment for low back pain in March 2015.  A March 12, 2015 [thus, predating the April 11, 2015 MVA] clinical record reflects that the Veteran reported having had such pain for about 10 years.  The Veteran attributed it to poor posture and work performing heavy lifting as a mail man.  He reported that past acupuncture and chiropractic treatment had helped.  

On file are records showing that following the two motor vehicle (MVA) accidents in April and November 2015 the Veteran was seen and treated by a chiropractor for a cervical strain or sprain and lumbar sprain.  A January 2016 orthopedic consultation noted that he had been in the two MVAs and that his symptoms were primarily left-side, both the left neck and left lower back.  He complained of intermittent left leg weakness.  He had had physical therapy and chiropractic therapy.  Imaging revealed lumbar degenerative changes and changes in the cervical spine.  The assessment was cervical and lumbar sprains.  

Attached to VA Form 21-4142, Authorization for Consent to Release Information, dated in July 2015, in which the Veteran reported having been treated since April 2015 at the Chicago Health Medical Group, were private clinical records.  These reflect treatment for neck and back pain following two vehicular accidents in 2015.  

On file are records of the Veteran's receiving physical therapy at the Athletic and Therapeutic Institute (ATI) for cervical and lumbar symptoms in 2015.  

In VA Form 21-526EZ received in May 2016 the Veteran reported that he had sustained cervical and lumbar strains in a line of duty auto accident and had been treated from January 2012 to April 2016 at the Hines VA Medical Center.  

Accordingly, the case is REMANDED for the following action:

1.  Arrange to have the Veteran afforded an examination by an appropriate clinician for the purpose of determining, if possible, whether the Veteran's sleep apnea is related in any manner to either of his two periods of active duty, i.e., the first being from July 1990 to July 1994, and the second being from February to July 2003.  

The examiner is requested to address the recent statements following the July 2016 videoconference with respect to whether they support the claim for service connection for sleep apnea.  

The statements and testimony of the Veteran, and the other lay statements may serve to support any medical determination to the extent the statements may be reasonably made by a layperson.  For example, a layperson may address what was personally observed or experienced, including current or past symptoms, and what a physician previously said.  The examiner must not accept lay statements beyond the ambit of lay knowledge or comprehension.  The examiner may accept that a physician told the Veteran certain things, for purposes of establishing etiology or a diagnosis, but not accept the Veteran's personal knowledge of such matters.  The examiner should also address whether any statements or evidence are contradicted or reasonably questioned based on other evidence of record.  

The examiner is requested to opine whether it is at least as likely as not that the Veteran's current sleep apnea had its onset during either of the Veteran's periods of active duty.  

In reaching an opinion the examiner is requested to address the significance, if any, of the Veteran's reported in the June 2033 Post Deployment Health Assessment that since his deployment he still felt tired after sleeping.  

The medical personnel rendering the opinion is asked to note the different standards of proof.  The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.

A complete rationale should be provided for each opinion or conclusion made or explain why such an opinion or conclusion cannot be rendered.  

2.  Contact the Veteran and request that he provide information as to the dates and places of treatment or evaluation for residuals of the MVAs in April and November 2015.  Then take the appropriate steps to ensure that reasonable steps are taken to obtain such records and associate them with the record.  

If any such evaluation or treatment was from a private medical source, and such records are not already on file, take the appropriate step(s) to request the Veteran to execute and return the needed authorization or release forms to obtain such records.  Thereafter, take the appropriate steps to obtain such records and associate them with the record.  

Ensure the records of treatment of the Veteran at the Hines VA Medical Center since April 11, 2015, are associated with the record.  

3.  Thereafter, arrange to have the Veteran afforded an examination by an appropriate clinician for the purpose of determining, if possible, whether the Veteran has chronic low back disability which is as likely as not due to or aggravated by MVAs in April and November 2015, or both, while he was on INACDUTRA.  

In light of the assertion by the Veteran at the September 2014 VA examination that his service-connected residuals of varicose veins, status post vein stripping of the left leg, caused difficulty weight-bearing which might affect his low back, the examiner is requested to opine whether it is as likely as not that this service-connected disability has caused or aggravated any low back disability.  

The medical personnel rendering the opinion is asked to note the different standards of proof.  The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.

A complete rationale should be provided for each opinion or conclusion made or explain why such an opinion or conclusion cannot be rendered.  

4.  Thereafter, readjudicate the claims for service connection for sleep apnea and for a low back disorder.  If either claim remains denied issue a supplemental statement of the case (SSOC) as to such issue and provide the Veteran and his representative with the appropriate period of time within which to respond, at their option.  Then, return the case to the Board for further appellate consideration.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).






This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs