Citation Nr: 1802077 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-07 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a prostate condition 4. Entitlement to service connection for sarcoidosis. 5. Entitlement to an increased rating for a left knee disorder. REPRESENTATION Appellant represented by: Michael G. Smith, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from April 1990 to November 1992. This matter came before the Board of Veterans' Appeals (Board) from May and December 2010 decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing before the undersigned Veterans Law Judge was held at the RO in September 2016. The hearing transcript has been associated with the claims file. The increased rating claim is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran's PTSD is related to service. 2. A right knee disorder was not present until several years after service and is not related to service, including Persian Gulf service. 3. A prostate disorder was not present until after service and is not related to service. 4. Sarcoidosis was not present until several years after service and is not related to service, including Persian Gulf service. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for a prostate disorder have not been met. 38 U.S.C.A. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1117 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the duty to assist has been satisfied. The service medical records, VA treatment and examination records, and post-service medical evidence identified by the Veteran have been obtained. The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate a claim decided herein. The record includes probative evidence as to whether the claimed conditions are related to service, including a medical opinion for the sarcoidosis claim. The Board finds no such medical opinion is needed for the right knee or prostate disorder claims because there is no probative evidence linking either condition to service. Accordingly, the Board will address the merits of the appellant's appeal. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests sarcoidosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). The Veteran is a Persian Gulf veteran. Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders ) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, including signs or symptoms involving the respiratory system. The symptoms must be manifest to a degree of 10 percent or more. There are three types of "qualifying chronic disabilities" for the purposes of 38 C.F.R. § 3.317: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome); or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 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. 38 C.F.R § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, 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). 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Psychiatric Disorder Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, the criteria for verifying in-service stressors were amended. The amendment states that 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 posttraumatic stress disorder 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. Upon consideration of the evidence, the Board finds service connection is warranted for PTSD. The record documents that the Veteran served in Saudi Arabia during the Gulf War, and the record suggests the Veteran was exposed to a situation of potential danger and fear. The record also documents a diagnosis of PTSD by a VA psychiatrist based on this service, reported in a November 2016 statement. The Board acknowledges that the record includes April and November 2010 and April 2013 VA examination records that report findings that the Veteran did not meet the full criteria for a diagnosis of PTSD. However, the Board finds the November 2016 diagnosis is probative evidence of PTSD during the period of the claim. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the Board finds service connection is warranted for PTSD. Right Knee Disorder Service treatment records reveal no complaints or findings indicative of a right knee disorder, and the September 1992 separation examination reveals normal clinical findings and no history suggestive of a knee disorder. An October 2006 VA x-ray report reveals the Veteran's history of chronic knee pain that had progressively worsened over the previous six months. He denied injury but reported recurrent stress in military service. Imaging of the knees was normal. A March 2008 VA x-ray report indicates that imaging was normal. An April 2010 VA examination record reveals the Veteran's history of bilateral knee pain and stiffness. The diagnosis was "mild arthritis of the knee, although plain films underestimated the findings." Following the review of the evidence, the Board must conclude that service connection is not warranted for a right knee disorder, currently diagnosed as arthritis. Initially, the Board finds that a knee disorder was not present until many years after the Veteran's service. Service treatment and examination records reveal no finding or history indicative of a right knee disorder, and the first complaint pertaining to the right knee dates more than 13 years after discharge from service. Furthermore, the Veteran has not reported the existence of right knee symptoms during and since service. Furthermore, the Board further finds the probative evidence does not suggest that a right knee disorder is related to service. There is no probative evidence linking the current right knee disorder to service. Notably, the record is absent any medical evidence of a link, and the Veteran has not reported symptoms during and since service. Although the Veteran might believe that the right knee disorder is related to service, the record does not suggest the Veteran, who is a layperson, is competent to determine the cause of the current disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. Prostate Disorder Service treatment records reveal no complaints or findings indicative of a prostate disorder, and the September 1992 separation examination reveals normal clinical findings and no history indicative of a prostate disorder. A September 1995 VA medical record reveals a finding of questionably tender prostate. No diagnosis was rendered. A December 2008 VA treatment record reveals treatment for prostatitis. Following the review of the evidence, the Board must conclude that service connection is not warranted for a prostate disorder. Initially, the Board finds that a prostate disorder was not present until after the Veteran's service. Service treatment and examination records reveal no finding of a prostate disorder, a prostate abnormality was not found until almost seven years after discharge from service, and a diagnosis was not rendered until 16 years after discharge from service. Furthermore, the Veteran has not reported the existence of symptoms currently attributed to a prostate disorder during and since service. Furthermore, the Board further finds the probative evidence does not suggest that a prostate disorder is related to service. There is no probative evidence linking the prostate disorder to service. Notably, the record is absent any medical evidence of a link, and the Veteran has not reported symptoms during and since service. Although the Veteran might believe that the prostate disorder is related to service, the record does not suggest the Veteran, who is a layperson, is competent to determine the cause of the current disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. Sarcoidosis Service treatment records reveal no complaints or findings indicative of sarcoidosis, and the September 1992 separation examination reveals normal clinical findings for the lungs, normal X-ray imaging of the chest, and negative history of shortness of breath, chest pain or pressure, or chronic cough. A May 2007 VA treatment record reveals the Veteran's history of shortness of breath on moderate exertion. He reported that the symptoms began in 1992, after returning from the Persian Gulf, and that his exertional breathlessness and fatigue resulted in him failing physical testing and leaving service. The Veteran reported that a biopsy showed pulmonary sarcoidosis. Subsequent records reveal diagnosis of pulmonary sarcoidosis. An April 2010 VA examination record reveals diagnosis of pulmonary sarcoidosis. The examiner reported that the cause of the sarcoidosis was unknown. The examiner reported the opinion that the sarcoidosis was not a Gulf War diagnosis. The examiner reported that the Veteran would have developed sarcoidosis had he gone to the Gulf War or not. The examiner added that the examiner did not think the sarcoidosis started when the Veteran was in service. The examiner explained that sarcoidosis is most common in the third and fourth decades which corresponds with the Veteran's diagnosis at approximately age 39. Following the review of the evidence, the Board must conclude that service connection is not warranted for sarcoidosis. Initially, the Board finds that presumptive service connection is not warranted under 38 C.F.R. § 3.317. The Veteran's symptoms have been attributed to a known clinical diagnosis, notably sarcoidosis. As such, there is no "undiagnosed illness," as defined by VA. Furthermore, sarcoidosis is not a disease recognized as presumptive under 38 U.S.C. 1117(d) and the record is absent probative evidence that sarcoidosis is a "medically unexplained chronic multi-symptom illness." Although the record reports that the etiology of sarcoidosis is not known, the record indicates that the Veteran has pulmonary sarcoidosis without extrapulmonary features; the record does not indicate that the Veteran's sarcoidosis is characterized by overlapping symptoms and signs and features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Notably, there is no history or allegation of such features or that the sarcoidosis is a "medically unexplained chronic multi-symptom illness." The Board further concludes that the sarcoidosis was not present until more than one year after the Veteran's service. Service treatment and examination records reveal no finding of sarcoidosis, sarcoidosis was first diagnosed many years after service, and a VA examiner has determined that the sarcoidosis was not present during service. There is no countervailing medical opinion. Although the Veteran has competently reported exertional fatigue and shortness of breath during and since service, the Board finds the history is not credible as it is not consistent with the record. The service records do not reveal any histories of exertional shortness of breath or fatigue, and the Veteran denied shortness of breath at separation. The Board finds the histories presented at the time of separation are more credible, and thus more probative, than the histories first provided in 2007. As such, the Board finds there is no probative evidence of symptoms potentially attributable to sarcoidosis during and since service. Finally, the Board further finds the probative evidence does not suggest that the sarcoidosis is related to service. There is no probative medical opinion of record linking the sarcoidosis to service, and a VA examiner has determined that the sarcoidosis is not related to service. In making this determination, the examiner explained that the onset of the sarcoidosis was within the normal range of onset for sarcoidosis. There is no countervailing medical evidence. Although the Veteran might believe that the sarcoidosis is related to service, the record does not suggest the Veteran, who is a layperson, is competent to determine the cause of the current disability. As such, the Veteran's assertion of a relationship is not competent evidence of a nexus. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. ORDER Service connection for a psychiatric disorder, to include PTSD, is granted. Service connection for a right knee disorder is denied. Service connection for a prostate disorder is denied. Service connection for sarcoidosis is denied. REMAND The record includes an April 2011 notice of disagreement with the initial noncompensable rating assigned by a May 2010 decision for the left knee disability. The record indicates that a compensable rating was then awarded effective August 7, 2013. See January 2014 rating decision. The record does not indicate that this action satisfied the Veteran's appeal. The record does not include a statement of the case, and the record does not indicate that the matter is pending development. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded for the RO to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to an initial compensable rating for the left knee disability. The Veteran must be informed of the criteria for perfecting the appeal. If the Veteran perfects an appeal, ensure that all indicated development is completed before the issue is returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U. S. 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. §§ 5109B, 7112 (West 2012). ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs