Citation Nr: 1752720 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-28 122A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a disability manifested by fatigue. 2. Entitlement to service connection for a digestive condition, to include gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for type II diabetes mellitus (DMII). 4. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), schizophrenia, anxiety, depression, and psychosis. 5. Entitlement to service connection for other residuals of heat stroke/heat exhaustion, to include traumatic brain injury (TBI). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990 and from February to March 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2008, July 2010, and November 2013 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the November 2008 rating decision, the RO denied entitlement to service connection for schizophrenia. In the July 2010 rating decision, the RO denied entitlement to service connection for diabetes, a digestive condition, and fatigue. In the November 2013 rating decision, the RO, in relevant part, denied entitlement to a TBI resulting from heat stroke/heat exhaustion. The Veteran testified at a hearing before the undersigned in October 2015. The Board previously remanded these issues in May 2015 and January 2016 for further development. FINDINGS OF FACT 1. The Veteran does not have chronic fatigue syndrome. 2. The Veteran's current digestive disability is not the result of an in-service disease or injury. 3. The Veteran's current Type II Diabetes is not the result of an in-service disease or injury. 4. The Veteran's current psychiatric disability is not the result of an in-service disease or injury. 5. The Veteran does not have current residuals of heat stroke/heat exhaustion, to include traumatic brain injury (TBI). CONCLUSION OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for a digestive disability, to include gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 4. The criteria for service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), schizophrenia, anxiety, depression, and psychosis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for residuals of heat stroke/heat exhaustion, to include traumatic brain injury (TBI) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has testified, and otherwise contended, that the conditions at issue in this appeal were the results of a heat stroke he experienced while serving in Panama during his first period of active duty. VA has made numerous attempts to obtain records of the Veteran's reported treatment at Kaiser Permanente and asked the Veteran to identify other sources of treatment. Available records have been obtained. Records of his possible treatment at an emergency room following a reported motor vehicle accident have not been obtained. Kaiser Permanente has indicated that it does not have those records and no other source has been identified. Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement of a current disability is satisfied when the Veteran has a disability near the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury, which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering lay evidence, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Fatigue The Veteran complains of chronic fatigue and avers that its onset was when he hospitalized for heat exhaustion during his 1989 deployment in Panama. See hearing transcript at 3. He also contends that in service immunizations may have resulted in chronic fatigue syndrome. However, neither service nor post service treatment records document complaint, treatment, or diagnosis of chronic fatigue syndrome or a disability manifested by fatigue. The Veteran was afforded a VA examination in May 2017, at which time he reported that he, "feels sluggish and needs to clear his head before he starts a tasks" and "once that he starts doing something, he feels ok." The May 2017 VA examiner concluded that the Veteran had never met the criteria for chronic fatigue syndrome. The examiner further found that the Veteran had never had any cognitive impairment due to chronic fatigue syndrome or any other pertinent physical findings, conditions, signs or symptoms related to a chronic fatigue disability. Additionally, the examiner provided the opinion that the Veteran's fatigue was less likely than not related to his military service or the specific events of heat exhaustion and/or immunoglobulin injection. The examiner reasoned that there was no service medical record evidence to support any contention that the condition had an onset in service or that it was related to an in service disease or injury, specifically to include the immunization received for chemical weapons in February 1991 or the heat exhaustion incident in July 1989. The examiner added that the immunoglobulin shot administered rendered passive immunity to potential infections agents that the Veteran might have encountered had he been deployed to the Persian Gulf (which he was not). The medical literature did not support the contention that an immunoglobulin injection or heat exhaustion caused the nonspecific symptom of fatigue (which the Veteran describe as mental fogginess). The Veteran has provided competent, but vague, reports of fatigue. This symptom has not been ascribed to any underlying disability or disease. He has never been found to meet the criteria for a diagnosis of chronic fatigue syndrome and no other pertinent disability has been identified. As a layperson, the Veteran lacks the medical expertise to diagnose chronic fatigue syndrome or provide a medical opinion as to the causes of his symptom. The weight of the evidence is against a finding that the Veteran has chronic fatigue syndrome any chronic disability manifested by fatigue. The May 2017 opinion is imperfect in that it cites the absence of service treatment records as a basis for finding no nexus to service; but it ultimately relies on medical literature for the proposition that there was no relationship between heat injury and the mental fogginess or fatigue described by the Veteran. More importantly, a current disability that could be linked to service has not been shown. The May 2017 VA examination report reflects that the VA examiner noted the Veteran's contentions, opined that a diagnosis for chronic fatigue syndrome was not established, and essentially concluded that the criteria for chronic fatigue syndrome were not met. The opinion is probative with respect to service connection for chronic fatigue syndrome, as it is based on an accurate history, was definitive and was supported by a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the reasons discussed above, the preponderance of the evidence is against finding a current disability. Reasonable doubt does not, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Digestive Disorder The Veteran also contends a digestive condition, including hernia and GERD, began when he was hospitalized for heat exhaustion during his 1989 deployment in Panama and further aggravated in 1991 after receiving chemical weapons vaccinations. See January 2010 statement from Veteran. There is no question that the Veteran has a current digestive disorder. Medical records show that in December 2008 the Veteran was diagnosed with GERD and had a hiatal hernia with antral gastritis. However, service treatment records document no evidence of complaint, treatment, or diagnosis of a chronic disability manifested by gastrointestinal symptoms, complaints, or diagnosis. The Veteran was afforded a VA examination in May 2017, at which time he denied any current gastrointestinal (GI) symptoms, including upper or lower GI tract. The May 2017 VA examination report reflects that although diagnosed with gastroesophageal conditions, the Veteran has never been diagnosed with an intestinal condition, nor does he have any medical history in regard to an intestinal condition. The examiner further reported that the Veteran did not have nor had he ever had any pertinent physical findings, conditions, signs or symptoms related to a digestive disability. Additionally, the examiner concluded that was less likely than not that any digestive condition, to include GERD, had its clinical onset during the Veteran's active service or was related to an in-service disease or injury specifically to include any immunization received for chemical weapons in February 1991 and/or the Veteran's noted incident of heat stroke/heat exhaustion in July 1989. The examiner provided the rationale that there was no service medical record evidence to support any contention that a digestive condition onset in service or is otherwise related to an in service disease or injury, specifically to include the immunization received for chemical weapons in February 1991 or the heat exhaustion incident in July 1989. The Examiner also provided that the absence of digestive symptoms was likely due to the Veteran's weight loss of 40 pounds over time. His weight had been stable over 3 years and he had no intestinal symptoms. The examiner further reasoned that the Veteran was only hospitalized over night for heat exhaustion, not 4-5 days as he has repeated stated in his appeal and that there is no medical evidence to support any long-term sequelae from having mild heat stroke in 1981. The examiner also reasoned that there were no immunizations administered to prevent/thwart the effects of chemical weapons exposures and that the shots that the Veteran was given in February 1991 were an influenza vaccine, a diphtheria/tetanus booster, and an immunoglobulin (IG) shot. The IG shot rendered passive immunity to potential infectious agents the Veteran might have been exposed to had he been deployed to the Persian Gulf, but he was not. The medical literature does not support the contention that IG injections and/or heat exhaustion cause GERD/hiatal hernia or a digestive condition. The May 2017 opinion also includes the problematic language regarding the absence of service treatment records; but is redeemed by the reliance on medical literature and the Veteran's testimony. With regard to his testimony, the Veteran reported intestinal and kidney symptoms in service, while the only current symptoms and disability relate to the esophagus and hiatal area. The May 2017 VA examination report reflects that the VA examiner noted the Veteran's contentions, opined that a diagnosis a digestive was not established, and essentially concluded that any past symptomology is likely accounted for by the Veteran's weigh. The opinion is probative with respect to service connection for a digestive condition, as it is based on an accurate history, was definitive and was supported by a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has contended, throughout the course of this appeal that he has a digestive condition. The diagnosis of gastrointestinal abnormality requires specific diagnostic findings. The Veteran has not been shown to have such knowledge, training, or experience. Further, the Board finds that the Veteran's statements are outweighed by the May 2017 VA examination report finding no diagnosis or symptomology of a digestive condition. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a digestive condition, including a hernia or GERD. As the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Type II Diabetes Mellitus (DMII). The Veteran avers that type II diabetes also had its onset when he was hospitalized for heat exhaustion during the 1989 deployment in Panama and further aggravated in 1991 after receiving chemical weapons vaccinations. See January 2010 statement from Veteran. However, service treatment records show no evidence of diabetes mellitus diagnosed in service or diagnosed to a compensable degree within one year of separation from service. The records show no evidence of end organ damage or diagnosis of complication of illness related to the heat stroke documented in Panama in July 1989. Records from Kaiser Permanente show that diabetes was identified in December 2003. The Veteran was afforded a VA examination in May 2017, at he reported that he was first diagnosed with diabetes in 1997 or 1998. The May 2017 VA examination report reflects that the Veteran has does have a current diagnosis of Type II Diabetes that is managed by a restricted diet. However, as indicated above service treatment records show no evidence of diabetes mellitus diagnosed in service or diagnosed to a compensable degree within one year of separation from service. Also, the VA examiner opined that is less likely than not that the Veteran's diabetes had its clinical onset during active service or is related to an in-service disease or injury specifically to include any immunization received for chemical weapons in February 1991 and/or the Veteran's noted incident of heat stroke/heat exhaustion in July 1989. The examiner provided the rationale that there is no service medical record evidence to support any contention that diabetes onset in service or is otherwise related to an in service disease or injury, specifically to include the immunization received for chemical weapons in February 1991 or the heat exhaustion incident in July 1989. The Examiner further provided that the Veteran's diabetes is currently asymptomatic. The examiner reasoned that the Veteran was only hospitalized overnight and that there was no medical evidence to support any long-term sequelae from having mild heat stroke in 1981. The examiner also reasoned that there were no immunizations administered to prevent/thwart the effects of chemical weapons exposures and that the shots that the Veteran was given in February 1991 were an influenza vaccine, a diphtheria/tetanus booster, and an immunoglobulin (IG) shot. The IG shot rendered passive immunity to potential infectious agents the Veteran might have been exposed to had he been deployed to the Persian Gulf, but he was not. The medical literature does not support the contention that IG injection and/or heat exhaustion causes Type II Diabetes Mellitus. Again, there is no need for service or other medical records to confirm the onset of symptoms in service or to show a continuity of symptoms beginning in service. The Veteran's testimony and clinical records show; however, that diabetes mellitus was not identified until sometime between 1996 and 1998; and at the hearing he denied symptoms of diabetes dating back to service. The Veteran has contended, throughout the course of this appeal that his diabetes was caused and aggravated by service. However, the Veteran has not been shown to have the expertise need to provide a competent opinion as to whether remote events in service caused or contributed to his current diabetes. The May 2017 VA examination report was provided by a competent medical expert and found no relationship between the Veteran's diabetes and his active military service. There is no competent evidence linking the current diabetes to an event in service. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran diabetes is not linked to his active military service. As the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Psychiatric Disability Treatment records show that the Veteran was diagnosed as having schizophrenia in 1995. During the October 2015 hearing, the Veteran testified that he began to have psychiatric symptoms in service, but that the disability was not diagnosed until some time after service. He testified that this treatment took place at Kaiser Permanente. See hearing transcript p3. Records from Kaiser Permanente show that he was initially seen with psychiatric complaints in October 1995, when he reported depression after a conflict with his wife. Family members believed that he was depressed over the death of his grandmother in November 1994. In September 1996, he reported that he had quit his job in July; because he believed his employer was recreating the stress associated with an earlier motor vehicle accident. Later that month he reported stress from an investigation that had started at work one and a half years earlier. He also reported a motor vehicle accident in 1990 or 1991, but was not sure if this had added to his stress. It was noted that there was no prior psychiatric history and that the Veteran had depression that correlated with work. In March 1996, the Veteran reported that the motor vehicle accident had occurred on Valentine's Day in 1992. The Veteran was afforded a psychiatric examination in May 2017. The examiner diagnosed the Veteran with schizophrenia, undifferentiated or paranoid. There was no posttraumatic stress disorder (PTSD) diagnosis or a traumatic brain injury (TBI) diagnosis. The examiner opined that it is at least as likely as not that a psychiatric disability had its onset during the Veteran's active service or is related to an in-service disease or injury, specifically to include any immunization received for chemical weapons in February 1991 or the incident of heat exhaustion in July 1989. The examiner provided the rationale that, "VBS records were reviewed and have documented thoroughly the Veteran's psychiatric diagnosis and subsequent treatment and that it is clear the he suffers from a debilitating mental illness, namely paranoid schizophrenia. However, there is no evidence to connect the disorder with active duty as the Veteran was not treated for a mental illness and received honorable discharge." The examiner further reasoned that there was no evidence to suggest that the Veteran's schizophrenia was caused or exacerbated by a vaccination. He started showing symptoms at 30 years of age, which "is a little old according to research" for initial display of symptoms; however, he could have had mild psychotic symptoms before then. Records also suggest that his symptoms were noticed after the death of a family member, which often can cause the initial symptoms of a psychiatric diagnosis to emerge. The Veteran has provided competent testimony that he began having psychiatric symptoms during service. The records from Kaiser Permanente show; however, that the Veteran reported a variable history, but one that did not include symptoms in service. The report of the motor vehicle accident in 1990 or 1991 raises the possibility of symptoms during his service in 1991; but the subsequent clarification shows that the accident did not occur until after the end of his 1991 service. Given the variability in the reported history and the fact that the Veteran reported no relevant service history when initially seen for treatment; the testimony as to a service onset is deemed to be of little probative value. Although the Veteran attributes his psychiatric condition to his in service heat exhaustion and vaccinations, he lacks the expertise to provide a competent opinion in this regard; and such an opinion is not consistent with the contemporaneous record showing intervening triggers for the psychiatric disability. The more probative opinion is that offered by the May 2017 VA examiner. The May 2017 VA examination report reflects that the VA examiner noted the Veteran's contentions and reviewed the entire claims file. The opinion is probative with respect to service connection for a psychiatric disorder as it is based on an accurate history, was definitive and was supported by a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has contended, throughout the course of this appeal that his mental condition was caused by service. However, the Veteran has not been shown to have such knowledge, training, or experience to make such a determination. Further, the Board finds that the Veteran's statements are outweighed by the May 2017 VA examination report finding no relationship between the Veteran's schizophrenia diagnosis and his active military service. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran paranoid schizophrenia is not linked to his active military service. As the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Heat Stroke Residuals including TBI There is no evidence of a traumatic brain in injury in service. Service treatment records show that the heat stroke/heat exhaustion episode in July 1989 did not include a head or traumatic brain injury. The records showed no evidence of end organ damage or diagnosis of complication of illness related to the heat stroke/heat exhaustion documented in Panama in July 1989. The Kaiser Permanente Records show that the Veteran reported that during the February 1992 motor vehicle accident, his vehicle hit a bridge and he had bruising on the side of his head. There were no reports of a current TBI or TBI in service. Further, during the May 2017 psychiatric examination the examiner noted that the Veteran had no TBI diagnosis or diagnosis for any residuals of heat stroke. Without a current diagnosis or evidence that there is or has been a diagnosis of heat stroke residuals, including TBI related to military service, service connection for residuals of heat stokes residuals is not warranted. The Veteran has contended, throughout the course of this appeal that he has heat stroke residuals including TBI. The diagnosis of residuals of heat stroke, including TBI requires specific diagnostic findings The Veteran has not been shown to have such knowledge, training, or experience. Further, the Board finds that the Veteran's statements are outweighed by the May 2017 VA examination report finding no diagnosis of a TBI disability or any other residuals of heat stroke. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a residual of heat stroke, including TBI disability. As the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a disability manifested by fatigue is denied Service connection for a digestive condition, to include gastroesophageal reflux disease (GERD) is denied. Service connection for type II diabetes mellitus (DMII) is denied. Service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), schizophrenia, anxiety, depression, and psychosis is denied Service connection for other residuals of heat stroke/heat exhaustion, to include traumatic brain injury (TBI) is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs