Citation Nr: 1337904	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  05-33 787	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for a respiratory disorder due to undiagnosed illness.

2. Entitlement to service connection for shoulder pain, claimed as joint pain, due to undiagnosed illness.

3. Entitlement to service connection for fatigue due to undiagnosed illness.

4. Entitlement to service connection for headaches due to undiagnosed illness.

5. Entitlement to service connection for a sleep disturbance due to undiagnosed illness.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The case is now under the jurisdiction of the RO in Chicago, Illinois.

The Board remanded this matter in January 2008, January 2011, and April 2013 for further evidentiary development, to include obtaining etiology opinions for each of the Veteran's claims.  It now returns for appellate review.  The Board finds that the RO partially complied with the directives of the January 2008 and January 2011 remands and substantially complied with the directives of the April 2013 remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

As provided in the January 2008, January 2011, and April 2013 Board remands, the Veteran requested a personal hearing before a Veterans Law Judge sitting at the RO in his October 2005 substantive appeal (VA Form 9).  However, in February 2007, in a form responding to a letter from the RO regarding his hearing options, the Veteran stated that he elected to have his claims go directly to the Board.  Although the Veteran did not choose the option on the form that explicitly stated that he no longer wanted a hearing, he also did not choose one of the options for the type of hearing he wanted.  Therefore, the Board construes the Veteran's statement as a withdrawal of his hearing request.  See 38 C.F.R. § 20.702(d), (e); 20.704(d); (e) (2013).


FINDINGS OF FACT

1. The Veteran does not have a diagnosed respiratory disorder or objective signs or symptoms of a respiratory disorder that are attributable to an undiagnosed illness.

2. The Veteran's bilateral shoulder pain has been diagnosed as arthritis of the shoulders, which did not have onset during service, within one year of separation from service, and is not otherwise related to service.

3. The Veteran does not have chronic fatigue syndrome and his claimed condition of fatigue has been identified as a symptom of his sleep apnea and his service-connected posttraumatic stress disorder (PTSD).

4. The Veteran's headaches have been diagnosed as tension headaches, which did not have onset during service and are not otherwise related to service.

5. The Veteran's sleep disturbance has been diagnosed as obstructive sleep apnea, which did not have onset during or as a result of service.


CONCLUSIONS OF LAW

1. The criteria for service connection for a respiratory disorder claimed as due to an undiagnosed illness have not been met.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).

2. The criteria for service connection for bilateral shoulder arthritis, claimed as shoulder pain and as due to an undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2013).

3. The criteria for service connection for fatigue, claimed as due to an undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).

4. The criteria for service connection for tension headaches, claimed headaches and as due to an undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).

5. The criteria for service connection for a sleep apnea, claimed as a sleep disturbance and as due to an undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Board finds that the duty to notify was partially satisfied by a letter sent to the Veteran in August 2004.  The letter addressed all notice elements except notification of degree of disability and the effective date of the disability and was sent prior to the initial unfavorable decision by the AOJ in January 2005.  Curative notice addressing the Dingess/Hartman criteria was sent in April 2006 after which the claims were readjudicated via a December 2006 supplemental statement of the case (SSOC).  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case).  Because the Veteran was provided notice and ample opportunity to respond, and because his claims were readjudicated via a SSOC after the notice was provided, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.

The duty to assist was also met in this case.  Limited service treatment records are in the claims file.  VA has made multiple attempts to obtain outstanding records from the California Air National Guard, the Records Management Center, the California Adjutant General's Office, the Nevada Adjutant General's Office, the National Personnel Records Center, the Illinois Army National Guard, and the Illinois Adjutant General's Office.  However, none of the foregoing offices had records for the Veteran.  The Board finds that further attempts to obtain records at this time are not warranted.

All pertinent VA and private treatment records have been obtained and associated with the physical and/or Virtual or electronic claims files.  VA examinations with respect to the issues on appeal were conducted in September 2004, April 2011 with an October 2012 addendum opinion, May 2013, and July 2013.  38 C.F.R. § 3.159(c) (4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the September 2004 examination report and opinions, April 2011 examination report, and October 2012 addendum opinions are not adequate for rating purposes due to inadequate rationales and/or failure to consider all medical evidence of record.  The May 2013 and July 2013 VA examination reports and opinions are adequate as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file.  The opinions consider all of the pertinent evidence of record and the statements of the Veteran, and the examiner provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").

Legal Criteria

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110 (West 2002).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d 1331), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker, 708 F.3d 1331.  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker, 708 F.3d 1331; 38 C.F.R. § 3.303(b).

Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016).  In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Notably, laypersons are competent to report objective signs of illness.  Id.

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  See Gutierrez v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes joint pain as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness.

A "medically unexplained chronic multi symptom illness" means 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.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  See 38 C.F.R. § 3.317(a)(2)(ii).

There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  See 38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  See 38 C.F.R. § 3.317(b).

For purposes of section 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  See 38 C.F.R. § 3.317(a)(4).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  In this regard, the Court of Appeals of Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Analysis

First, service personnel records indicate that the Veteran served in operation Desert Shield in the Kingdom of Saudi Arabia from December 1990 to January 1991 and in operation Desert Storm in Southwest Asia from January 1991 to April 1991.  Therefore, the Veteran qualifies for consideration of service connection based on the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

Next, the Board notes that the Veteran's limited service treatment records do not show complaints or treatment of respiratory or joint disorders, neurological symptoms, or sleep disturbances during service.  As noted above, VA made multiple attempts to obtain outstanding treatment records from multiple sources but the attempts were unsuccessful.

A. Respiratory Disorder

The Veteran seeks service connection for a respiratory disorder that he believes is due to exposure to oil well fires while deployed to Kuwait.  He also states that he has frequent colds and congestion but has not been diagnosed with any respiratory disease.

A February 1992 VA x-ray report shows a small calcified granuloma and a 5mm nodular density projected over the periphery of the left base of his lungs.  A March 1992 x-ray report shows a pulmonary nodule in the left lower lobe measuring approximately 8mm.  The nodule was indeterminate in nature.  Another March 1992 treatment record shows a history of granulomatous disease.

The Veteran had a VA examination in September 2004.  The Veteran denied having respiratory symptoms, but said he had occasional shortness of breath, which he related to anxiety.  Based on the Veteran's assertion, the examiner did not order pulmonary function tests (PFTs).  The examiner stated that the Veteran had an "essential normal" examination and concluded that the Veteran did not have any respiratory disorders that were not related to his current stress situation.  Since the examiner did not conduct testing and did not provide rationale to support his opinion, the examination report is not adequate for rating purposes.

May and November 2005 VA treatment records show occasional sinus problems.  No diagnosis was indicated.

The Veteran had a VA examination in April 2011.  The Veteran said he was in the proximity of oil well fires for two weeks while in Kuwait.  He said he coughed during this period.  His respiratory condition was stable until 2003 when he changed his exercise pattern.  At that time he noticed mild exercise intolerance compared to his prior training in the Marine Corps.  He said the condition had slowly progressed over the past 10 years.  He recently began exercising again and experienced expected shortness of breath with his activity level.  The respiratory and chest evaluations were normal.  Chest x-rays showed "a few calcified granulomata".  PFTs revealed essentially normal spirometry and no bronchodilator effect.  Diffusion capacity and oxygen saturation were normal.  The Veteran was unable to complete lung volumes.  The examiner's impressions included a finding of shortness of breath historically with exercise but normal clinical examination and PFT.  The examiner stated that historically, no diagnosis or treatment could be verified.  Respiratory symptoms were subjectively described but objective data was lacking and as such, the examiner was unable to render a clinical diagnosis.  The examiner also found no presence of clinical evidence of an undiagnosed multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches, and sleep disturbances.

An addendum opinion was provided in October 2012.  The examiner opined that it is less likely as not that the inability to complete a lung volume test during the April 2011 VA examination is secondary to an undiagnosed illness.  The examiner explained that the Veteran's PFTs and chest x-ray were essentially normal except for evidence of old granulomatous disease.  The examiner could offer no explanation for why the lung volumes could not be measured but stated that the Veteran did not have active pulmonary disease.

The Veteran had a VA respiratory examination in May 2013.  The examiner stated that the Veteran has never been diagnosed with a respiratory condition.  The x-ray findings state that the lungs appeared clear without evidence of focal airspace consolidation, pleural effusion, or pneumothorax.  X-rays of the sinuses showed sinusitis.  In a June 2013 addendum, the examiner stated that the Veteran has no current or history of diagnosed respiratory disease due to the Gulf War.  She stated that the Veteran has a history of occasional viral illness but no diagnoses associated with respiratory illness.

Based on the available evidence, the Board finds that service connection is not warranted on a direct or presumptive basis for respiratory disorder.  The competent and credible evidence does not show a current respiratory disorder or objective respiratory symptoms that could be attributable to an undiagnosed illness.  The medical evidence shows normal lungs and chest throughout the pendency of the claim.  While x-ray reports show a history of granulomatous disease, VA examiners have indicated that the Veteran does not currently have, and has not had during the pendency of the claim, a respiratory disorder.  At most, the evidence shows subjective complaints of shortness of breath, which the Veteran has attributed to anxiety and increased exercise.  While the Veteran is competent to report symptoms such as shortness of breath, he is not competent to opine as to the etiology of his symptoms as the underlying etiology cannot be readily observed by laypersons.  Barr, 21 Vet. App. at 309.  The Veteran has also reported frequent colds and sinus conditions, assertions that are noted in his medical records.  However, the VA examiner noted in June 2013 that the Veteran has a history of occasional viral illness but no diagnoses associated with respiratory illness.

For service connection to be granted, a disorder must be present.  Generally, subjective symptoms are not sufficient to satisfy this element of a service connection claim.  Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  For claims based on the presumptive provisions for undiagnosed illnesses under 38 C.F.R. § 3.317, a veteran must exhibit objective indications of a chronic disability resulting from undiagnosed illness.  Here, since the Veteran has not presented with objective evidence of a disorder or objective indications of a chronic disability during the pendency of the claim, service connection for a respiratory disorder must be denied on a direct basis and under the presumptive provisions of 38 C.F.R. § 3.317.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B. Bilateral Shoulders, Fatigue, Headaches, and Sleep Disturbance

The Veteran seeks service connection for a bilateral shoulder disorder, fatigue, headaches, and sleep disturbance.  The evidence includes May 2004 VA treatment records, which indicate complaints of aches all over, trouble sleeping with a past medical history of insomnia, and tension headaches.  An August 2004 mental health treatment record shows the Veteran had been taking medications for his mental health but stopped due to the side-effect of over-sedation.

The Veteran had a VA examination in September 2004.  The Veteran reported generalized muscle and joint aches but said none were present at the time of the examination.  The Veteran also reported headaches but said they were related to his sinus problems.  The examiner stated that the Veteran had an "essential normal" examination.  The Veteran did not have joint pain for observation and did not have headaches.  The examiner found that the Veteran's sleep disturbances were secondary to PTSD and that the Veteran was taking medication that helped him sleep.  The examiner concluded that the Veteran's conditions were related to his mental state and that he did not have any joints, muscles, neurologic, or respiratory disorders that were not related to his current stress situation.  No rationales were provided for the opinions; therefore, the opinions have no probative value.

May and November 2005 VA treatment records show continued complaints of occasional tension related headaches, joint pain, low energy, and sleep problems.  No diagnoses were provided.  Notably, mental health treatment records indicate that the Veteran's sleep problems were symptoms of increased arousal due his mental health disorder.

In March 2006, the Veteran presented to a private provider for a sleep study.  He complained of wakening and snoring, restless sleep, and excessive daytime sleepiness.  The diagnostic impression was mild obstructive sleep apnea.  The provider stated that the findings from the study are consistent with significant sleep apnea, which causes the Veteran's noted symptoms.

The Veteran had a VA examination in April 2011.  He reported diffuse discomfort in his shoulders.  He said he did not injure his shoulders during service but was physically active, carrying packs and armor on them.  He also said sleep problems and fatigue were present on a daily basis and that he would nap during the day.  He also described his headaches, which occurred one to two times per week.  His said his headaches were associated with activity, stress, and poor sleep.  The examination and x-rays of the shoulders were normal.

The examiner's impressions included somatic complaints of both shoulders with a normal clinical examination.  The examiner noted a sleep disorder, complex with secondary fatigue pattern and stated that the sleep disorder was undiagnosed.  The examiner did not address the sleep study conducted in 2006 which shows a diagnosis of sleep apnea; thus, the examiner's finding has no probative value.  Finally, the examiner found a chronic cephalgia or headache pattern, muscle strain historically.  The examiner did not indicate whether the chronic cephalgia or headache pattern was a symptom of an undiagnosed illness or whether it was related to service.  The examiner found no clinical evidence indicating an undiagnosed multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches, and sleep disturbances.

An addendum opinion was provided in October 2012.  The examiner opined that the Veteran's somatic shoulder complaints are less likely than not related to service as the service treatment records do not indicate any complaints or evaluations of the shoulders during service.  The examiner did not indicate whether the somatic complaints were symptoms of an undiagnosed illness.  The examiner also opined that it is at least as likely as not that the Veteran's undiagnosed sleep disorder with secondary fatigue is a sign or symptom of an undiagnosed illness or medically unexplained chronic multi-symptom illness.  Again, the examiner did not address the sleep study conducted in 2006 which shows a diagnosis of sleep apnea; thus, the examiner's finding has no probative value.  The examiner stated that symptoms of chronic multi-system illness are vague and that "symptoms usually include but are not limited to fatigue, musculoskeletal pain, sleep disturbances, cognitive dysfunction, moodiness, and other symptoms."  The examiner found that the Veteran has fatigue, musculoskeletal pain, headaches and sleep disturbance with no diagnosis.  The examiner did not opine whether the symptoms constitute a chronic multi-system illness.  Therefore, the opinion is inadequate for rating purposes.

The Veteran had a VA examination for his shoulders, headaches, fatigue, and sleep disturbance in July 2013.  The examiner said these symptoms are due to established conditions, e.g. shoulder arthritis, tension headaches, and obstructive sleep apnea, and not due to undiagnosed illness.  The examiner found that the Veteran does not meet the criteria for chronic fatigue syndrome based on the onset and physical examination findings and stated that a diagnosis of chronic fatigue syndrome is one of exclusion.  The examiner also opined that the Veteran does not have an unexplained chronic illness because all of his symptoms can be explained by his well documented medical and mental health conditions.

Regarding direct service connection, the examiner opined that the bilateral shoulder arthritis, headaches, and obstructive sleep apnea are less likely as not related to or caused by service.  The examiner found no specific incidents or events in service that have been identified as etiologies for the disorders and noted that service treatment records are silent for complaint or treatment of these conditions.  The examiner observed that onset and treatment of the disorders was not documented until years after service.  Regarding the shoulders, the examiner observed that x-rays from 2013 show arthritis but the films from 2011 do not show the degenerative changes.  The examiner said the changes are consistent with the Veteran's age.

Regarding obstructive sleep apnea, the examiner opined that the condition is less likely as not related to his service-connected PTSD.  The examiner stated that PTSD causes sleep issues but that the neurologic pathway of his sleep issues is separate and distinct from that of obstructive sleep apnea.  The examiner explained that the obstructive sleep apnea is caused by obstruction from the oropharyngeal soft tissues, likely due to the Veteran's elevated body mass index (BMI).  Other etiologies include congenital pharyngeal conditions, past surgeries, or past ear, nose and throat traumas.  The examiner said there is no accepted pathophysiologic link between PTSD and the crowding of the upper airway that causes OSA.  The examiner concluded that the sleep symptoms and fatigue are likely a combination of both his OSA and his PTSD and that it is impossible to assign how much each contributes.

As noted above, the Veteran has been diagnosed with arthritis of the shoulders, tension headaches, and sleep apnea.  The examiner has attributed his symptom of fatigue to his sleep apnea and service-connected PTSD.  Because the Veteran's claimed shoulder pain, fatigue, headaches, and sleep disturbances have been diagnosed or attributed to a diagnosed condition, service connection is not warranted under the presumptive provisions of 38 C.F.R. § 3.317 for undiagnosed illness.  

Regarding service connection on a direct basis, the Board finds that service connection for bilateral shoulder arthritis, tension headaches, fatigue and sleep apnea is not warranted.  First, as discussed above, the examiner did not find a nexus between bilateral shoulder arthritis and the Veteran's service.  Additionally, the Veteran's arthritis of the shoulders did not manifest itself during service or to a degree of 10 percent or more within one year of the Veteran's separation from service; therefore, service connection is not warranted under 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b); 3.307(a)(3), 3.309(a).  The Board has considered the Veteran's statements alleging that his bilateral shoulder pain had onset during service and persisted subsequent to service and finds that he is competent to report these symptoms.  However, he is not competent to provide a credible opinion regarding the etiology of his bilateral shoulder pain or arthritis because the etiologies for these complaints and disorders cannot be readily observed by laypersons.  Here, the VA examiner diagnosed bilateral shoulder arthritis and opined that the condition is consistent with the Veteran's age with no relationship to service.  Accordingly, the Board finds that service connection for arthritis of the shoulders is not warranted on a direct basis or under the presumptions of 38 C.F.R. §§ 3.303(b); 3.307(a)(3), 3.309(a).

Second, service connection is not warranted for fatigue as the competent and credible evidence shows that fatigue is a symptom of sleep apnea and the Veteran's service-connected PTSD.  As such, service connection for fatigue is not warranted.

Third, service connection is not warranted for tension headaches.  Service treatment records do not show complaints or treatment of headaches during service.  As discussed above, the examiner did not find a nexus between tension headaches and the Veteran's service.  The Board has considered the Veteran's statements and while he has alleged that he has had tension headaches since service in 1991, review of the claims file shows that he did not report or complain of headaches until the date of claim, July 2004, more than thirteen years after separation from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy period between service and initial symptoms of disability).  Thus, while the Veteran is competent to report his head pain during and since service, the Board finds the contemporaneous medical evidence and the VA examiner's opinion more probative.  Notably, because tension headaches are not listed under 38 C.F.R. § 3.309(a), service connection for a chronic disorder under 38 C.F.R. § 3.303(b) is not warranted.

Finally, service connection for sleep apnea is not warranted.  Service treatment records do not show complaints or treatment of sleep apnea or sleep disturbance during service.  As discussed above, the examiner did not find a nexus between sleep apnea or sleep disturbance and the Veteran's service.  At most, the medical evidence suggests that any sleep disturbance other than sleep apnea is related to his service-connected PTSD.  The Board has considered the Veteran's statements of sleep disturbance during service, and finds that he is competent to report his symptoms.  However, he is not competent to provide a credible opinion regarding the etiology of his condition.  Sleep disturbances and sleep apnea are not disorders that are readily observed by laypersons and in this case, the competent and credible evidence indicates that sleep apnea is not related to service and that any other sleep disturbance is due to his PTSD.

Consequently, the Board finds that the competent and credible evidence of record fails to support a finding that service connection is warranted for bilateral shoulder pain, headaches, and sleep disturbances.  The evidence is not so evenly balanced to allow for application of the benefit of the doubt rule.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49.  The appeal is denied.


ORDER

Service connection for a respiratory disorder due to undiagnosed illness is denied.

Service connection for shoulder pain, claimed as joint pain, due to undiagnosed illness is denied.

Service connection for fatigue due to undiagnosed illness is denied.

Service connection for headaches due to undiagnosed illness is denied.

Service connection for a sleep disturbance due to undiagnosed illness is denied.


______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs