Citation Nr: 1338514 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-13 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for undiagnosed illness involving sleep and respiratory problems; muscle, bone or joint pain of the ankles, back, and knees; short-term memory loss; and gastrointestinal complaints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1988, February 1991 to March 1991, November 2002 to November 2003, and January 2004 to September 2004, to include service within the Southwest Asia Theatre of Operations. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran presented testimony before the Board in March 2009. A transcript of the hearing has been obtained. In August 2009, the Board denied a claim for bilateral leg disability. Consequently, that matter is no longer before the Board and the claim on appeal has been recharacterized accordingly. In June 2011, the RO awarded service connection for tinnitus, hearing loss of the right ear, and bilateral arthritis and strain of the ankles. In January 2012, the Board granted service connection for a bilateral knee disorder, a lumbar spine disorder, residuals of nasal fractures, and hearing loss of the left ear. The Board denied the claim for a chronic sinus disorder. In January 2012, the RO implemented the award of service connection for arthritis of the bilateral knees, lumbar spine, and left ear hearing loss. The RO additionally awarded service connection for allergic rhinitis, residuals of a nasal fracture, to include deviation of the nasal septum. As such, these matters are no longer before the Board. The Board ordered additional development and adjudication on the current claim in January 2012. Having been completed, the matter has been returned to the Board for appellate disposition. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the Persian Gulf War. 2. The claimed sleeping problems have been shown to be attributable to obstructive sleep apnea (OSA), a known clinical diagnosis; it is not otherwise shown to be related to service. 3. There is no currently diagnosed respiratory problem; complaint of shortness of breath is not a separately diagnosed disability and is not otherwise shown to be related to service. 4. The claimed muscle, bone, or joint of the ankles, back, and knees have been shown to be attributable to arthritis, a known clinical diagnosis, for which service-connection is already in effect. 5. There is no currently diagnosed short term memory problem; complaint of forgetting names and appointments is not a separately diagnosed disability and is not otherwise shown to be related to service. 6. The claimed gastrointestinal complaints have been shown to be attributable to gastroesophageal reflux disease (GERD) and status post cholecystectomy, known clinical diagnoses; it is not otherwise shown to be related to service. CONCLUSION OF LAW The criteria for service connection for undiagnosed illness involving sleep and respiratory problems; muscle, bone or joint pain of the ankles, back, and knees; short-term memory loss; and gastrointestinal complaints have not been met. 38 U.S.C.A. §§ 1110, 1131, 1117 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in May 2006. The Veteran indicated in June 2006 that he had no additional evidence or information to submit in support of his claim. VA has obtained some service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been obtain. The Veteran's complete service treatment records have not been associated with the claims folder. The National Personnel Records Center, Records Medical Center, and Kansas National Guard were unable to locate the Veteran's service treatment records. The Board made additional attempts to obtain these records upon Remand in August 2009. The RO made a formal finding on the unavailability of service treatment records in August 2010. The Veteran was notified in August 2010 on the unavailability of his service treatment records. He was asked to submit any copies in his possession, which he had previously done. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2). In January 2010, Dr. RW indicated there were no records available for the Veteran. Also in January 2010, Centerpoint Medical Center indicated they were unable to locate a record for the Veteran. The Veteran was notified in January 2010 and February 2010 that the aforementioned records were unavailable. He was asked to submit any copies in his possession. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.317 (2013), a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders); or (3) any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The term "medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.317(a)(2)(ii) . "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 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 is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. In making this determination, the Board referred to the Veteran's DD Form 214, which shows he was ordered to active duty in support of Operation Desert Shield/Storm from February 1991 to March 1991. He is in receipt of the Southwest Asia Service Medal with three bronze service stars. The Veteran's contentions can be grouped into two theories: (1) that his claimed disabilities are due to undiagnosed illnesses due to Persian Gulf service; and (2) that his claimed disabilities, even if not due to undiagnosed illnesses, are the direct result of service. The Board will address each contention in turn. (i.) Undiagnosed Illness Due to Persian Gulf Service The Veteran does not necessarily contend that his claimed sleeping and respiratory problems; muscle, bone or joint pain of the ankles, back, and knees; short-term memory loss; and gastrointestinal complaints are "stand alone" disorders. Rather, he contends that they are manifestations of an undiagnosed illness due to his service in the Persian Gulf, and that he should be compensated for such under 38 U.S.C.A. § 1117 (West 2002). A careful review of the claims file shows that the Veteran's claimed symptoms of sleeping problems, muscle, bone or joint pain of the ankles, back, and knees, and gastrointestinal complaints have each been attributed to a known diagnosis. The sleeping problems have been attributed to a known clinical diagnosis of OSA. Muscle, bone or joint pain of the ankles, back, and knees have been attributed to a known clinical diagnosis of arthritis, for which service connection is already in effect. The Board previously denied a claim for a bilateral leg disability in August 2009. The gastrointestinal complaints have been attributed to known clinical diagnoses of GERD and status post cholecystectomy. The competent medical evidence is therefore against the conclusion that the claimed sleeping problems, muscle, bone or joint pain of the ankles, back, and knees, and gastrointestinal complaints can be presumptively linked to an undiagnosed illness that is based on his service in the Persian Gulf. Accordingly, the provisions of 38 C.F.R. § 3.317 do not apply. (ii.) Direct Service Connection The Board must also address whether any claimed disorder is the direct result of a disease or injury of his service. The Board will not discuss whether muscle, bone or joint pain of the ankles, back and knees is the direct result of service because service-connection has already been established for arthritis of the bilateral ankles, knees, and lumbar spine. As noted, in order to establish direct service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, supra. At the outset, the Board notes that most of the Veteran's service treatment records are not on file and were apparently lost. The United States Court of Appeals for Veteran's Claims (the Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Memory Loss and Respiratory Problems The available service treatment records contain no complaints or diagnosis of memory loss or respiratory problems. Post-service, the Veteran has not been diagnosed with a disability manifested by either memory loss or respiratory problems. After multiple VA examinations, the VA examiners have not found any objective evidence of a respiratory or short-term memory loss disability despite complaints of shortness of breath on rest and forgetting names and appointments. Notably, the 2012 VA examiner indicated that even if the Veteran perceived that his memory was impaired (forgetting names and appointments) there was no objective evidence after testing that he had even mild memory loss. The 2012 VA examiner also found no objective respiratory disorder, despite the Veteran's complaints of shortness of breath upon rest. The physical examination, chest x-ray and pulmonary function test were unremarkable. The competent evidence does not establish that the Veteran has current short-term memory or respiratory disabilities. Without evidence of a current disability, there is no basis for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claims must be denied. Sleeping Problems and Gastrointestinal Complaints The available service treatment records contain no complaints or diagnosis of sleeping or gastrointestinal complaints, to include reports of medical examination dated in November 1988, April 1995, and December 2001 and pre- and post-deployment assessments in 2004. Post-service, the Veteran has been diagnosed with OSA, GERD, colon polyps, and status-post cholecystectomy. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's OSA, GERD, colon polyps, and status-post cholecystectomy and his active service. In that regard, the March 2009 VA examiner opined OSA and GERD were not caused by or related to his military service, including Gulf War service or Operation Enduring Freedom. The May 2011 VA examiner opined OSA was not caused by or a result of the Veteran's service, to include exposure to fumes and toxic materials in the desert. The examiner reasoned that the major risks for OSA were gender (male), age and obesity. The examiner found the Veteran met these risk factors. The May 2011 VA examiner opined complaints of frequent diarrhea with urgency were not related to service. The examiner noted the Veteran had a cholecystectomy and that sometimes after the removal, loose stools with urgency occurred due to the duct reopening or not totally closed. Moreover, the recent colonoscopy only showed internal hemorrhoids. Colon polyps have not been identified since their removal in 1996, prior to the Veteran filing his claim. The 2012 VA examiner opined GERD and status post cholecystectomy bile salt enteropathy were less likely than not related to his military service as there was no causal relationship between his conditions and his service in the Gulf. The examiner additionally opined OSA was not related to service. The examiner reasoned the disability was diagnosed in 2004 and lacking other history (only reported history was Veteran's complaints of snoring and daytime somnolence while deployed in Iraq) and/or physical examination finding, OSA was not the result of military service. The only evidence of record to support the Veteran's contentions is his statements. His statements do not establish a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to the claimed conditions, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his OSA and gastrointestinal complaints because he is not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. In short, service connection is not warranted on a direct or presumptive (based on Persian Gulf service) basis . The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and his claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for undiagnosed illness involving sleep and respiratory problems; muscle, bone or joint pain of the ankles, back, and knees; short-term memory loss; and gastrointestinal complaints is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs