Citation Nr: 1804867 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-17 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a left knee condition. 2. Entitlement to service connection for sleep apnea, to include fatigue, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117. 3. Entitlement to service connection for hypertension, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117. 4. Entitlement to service connection for periodontal disease, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to October 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is of record. The Veteran's claim of entitlement to service connection for periodontal disease, which is considered a dental disability, raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). A claim of entitlement to service-connection for a dental disability for treatment purposes only is separate and distinct from a claim of entitlement to service-connection for a dental disability for compensation purposes. 38 C.F.R. § 3.381. The claim for periodontal treatment is referred to the RO for any appropriate action. 38 C.F.R. § 19.9 (b). Specifically, the RO should consider whether to refer the claim for dental treatment to the appropriate VA Medical Center. The issue of entitlement to service connection for sleep apnea, to include fatigue, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative, competent evidence is against a finding that the Veteran has a current diagnosis for his left knee condition. 2. The Veteran's hypertension did not manifest during service or within one year of separation from service, is diagnosed and medically explained, and is not related to any disease, injury or exposure during service. 3. The Veteran is seeking VA compensation for a periodontal disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. Periodontal disease is not a compensable disability under law. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 4.150 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection 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 each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a) (2012). Under 38 C.F.R. § 3.317, service connection is available on a presumptive basis for certain types of qualifying disabilities in Persian Gulf veterans with service in the Southwest Asia theater of operations. 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 multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2). 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, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (e.g. irritable bowel syndrome). A 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(i). 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. 38 C.F.R. § 3.317 (c). Hypertension and periodontal disease are not among those diseases. 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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.317 (b). For purposes of section 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. 38 C.F.R. § 3.317 (a)(4). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. 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. Left Knee Condition The Veteran contends that he has a left knee condition which is due to service. Specifically, he states that he did a lot of lifting in service and driving semis which affected his left knee. When seeking service connection, the threshold requirement is that the Veteran demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Preliminarily, the Board notes that the Veteran's treatment records throughout the period on appeal reflect no definitive diagnosis of a left knee condition. Service treatment records are silent for complaints, diagnosis or treatment of a left knee condition. April 2012 VA treatment notes report complaints of unspecified knee pain. In a June 2012 general Gulf War VA examination, a left knee condition was not diagnosed. Upon examination there was no joint swelling, crepitation, or limitation of motion. In the Veteran's May 2014 VA Form 9, the Veteran reported that his left knee condition was due to carrying heavy equipment on a regular basis. He said that his knee was strained and still caused him stiffness, weakness, and lack of mobility. In an April 2015 VA treatment note, the Veteran denied any left knee problems. The Veteran testified at his August 2017 Board hearing that he did a lot of lifting and drove semis, which were high up, and he was in and out of them a lot. The Veteran stated that he started feeling a knee problem while he was in service, but he worked through it. Ultimately, the Veteran has submitted no medical evidence sufficient to show a current left knee condition. The Veteran has offered his own opinion on diagnosis and etiology, stating that his left knee condition was caused by service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d at 1372. Therefore, the Board affords more probative weight to the VA treatment records and there are no medical opinions to the contrary. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. At 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis of a left knee condition, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. At 225. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that there is a current left knee condition, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for a left knee condition is not warranted. Hypertension The Veteran asserts that he currently suffers from hypertension due to his environmental exposure during service in the Persian Gulf War. In a June 2012 general Gulf War VA examination, the examiner opined that the Veteran's hypertension, diagnosed in 2010, was not related to service. Specifically, the examiner stated that there was no clinical evidence to suggest any link between hypertension diagnosed 18 years after deployment as a residual of exposures while deployed to the Persian Gulf War. The examiner stated that the hypertension was not likely related to Persian Gulf War deployment. Also in June 2012, the Veteran submitted a statement in support of his claim. The Veteran reported that he served in the supply unit which carried tank engines and parts. He drove a truck to pick up the broken trucks where he drove past the burning oil wells on a regular basis. The Veteran stated that he had to wear a mask to get through this area. He described how he was stationed in Kuwait at this time. He also received malaria inoculations weekly and additional shots upon returning to the United States. He also served in Saudi Arabia and his unit was under missile attacks which he believed may have contained hazardous materials. The Veteran testified at his March 2017 Board hearing that he felt his hypertension was a direct result of the Gulf War because at that time he was taking pills weekly and shots, and he did not know what was the purpose of the pills and shots. The Veteran also testified that he started taking medication for hypertension around 2010. In addition, the Veteran stated that during service he would get his blood pressure checked but the examiners at that time would tell him that his blood pressure would lower once he calmed down. As an initial matter, the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.317. Although it is conceded that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, the medical evidence of record does not show that the Veteran's hypertension cannot be attributed to any known clinical diagnosis. The Veteran's hypertension has been clinically diagnosed, which firmly rules out the possibility of it being a symptom of an undiagnosed illness. Further, the Board also finds that the Veteran's hypertension cannot be warranted on a direct basis. Service treatment records are silent for complaints, treatment or diagnosis of hypertension. Further, the evidence of record does not show any nexus between the Veteran's hypertension and service. The Veteran has offered his own opinion on diagnosis and etiology, stating that his hypertension was caused by service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d at 1372. Therefore, the Board affords more probative weight to the VA examiner's opinion and VA treatment records, and there are no medical opinions to the contrary. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for hypertension, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117 is not warranted. Periodontal Disease The Veteran asserts that he currently suffers from periodontal disease due to his environmental exposure during service in the Persian Gulf War. Dental disabilities are treated differently than medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. Chapter 17. 38 C.F.R. § 3.381. Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. In July 2012, the Veteran was afforded a dental and oral VA examination. The Veteran was diagnosed with periodontal disease. The examiner did not find any anatomical loss or bony injury of the mandible. The Veteran similarly did not have any anatomical loss or bony injury of the maxilla. He also did not have anatomical loss or bony injury of any teeth. There was no anatomical loss or injury of the mouth, lips, or tongue. The Veteran had never been diagnosed with osteomyelitis or osteoradionecrosis of the mandible. The Veteran did not have a benign or malignant neoplasm or metastases related to his diagnoses. He had no scars related to his conditions or treatment of his condition. The examiner opined that after reviewing private dental records, radiographs and conducting a clinical examination, the Veteran's chronic periodontitis was less likely as not caused by or the result of exposure to environmental hazards in Southwest Asia. The examiner reasoned that chronic periodontitis was a common plaque induced periodontal infection that was a major cause of tooth loss. There was a general consensus that chronic periodontitis was initiated and sustained by dental plaque biofilms, but host response to plaque bacteria were responsible for most of the tissue destruction. In addition, the examiner noted that dental medical records from August 1987 to April 1994 did not show a periodontitis diagnosis at that time. Overall, there were no conditions found in the examination that warrant compensation under the applicable rating schedule. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease, therefore, the claim must be denied. The issue of eligibility for outpatient dental treatment for periodontal disease is referred to the appropriate VA Medical Center for a formal determination in the Introduction portion of this decision. ORDER Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for hypertension, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117 is denied. Entitlement to service connection for periodontal disease, to include as due to undiagnosed illness or other chronic qualifying disability pursuant to 38 U.S.C. § 1117 is denied. REMAND Regrettably, the Board must remand this matter for further development. The Veteran testified at his March 2017 Board hearing that he noticed something was wrong with his sleep pattern during service. Specifically, the Veteran stated that he noticed he felt fatigued during service. The Veteran said that following service, he was diagnosed with sleep apnea and provided a CPAP machine, but still felt a level of fatigue during the day and was tired. The Board notes that the Veteran has been diagnosed with sleep apnea. In a June 2012 VA examination, the examiner found that the Veteran's sleep apnea was a diagnosed disability and was not the result of exposures to hazardous materials while deployed to the Persian Gulf War. However, the examiner did not adequately address whether the Veteran's sleep apnea was directly related to service. In addition, the examiner stated that fatigue was a symptom, not a diagnosis, but did not address whether the fatigue was due to Gulf War service. Therefore, the Board finds the June 2012 VA opinion to be inadequate. In addition, new testimony was presented in the March 2017 Board hearing which has not been considered. Thus, a new VA examination is necessary to address direct service connection for sleep apnea as well as provide an opinion for the Veteran's claim of fatigue. The examiner must also consider the Veteran's recent lay statements. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran inform of any known outstanding treatment records and assist in retrieving them, if possible. Associate these with the claims file. 2. Then schedule the Veteran for an appropriate VA examination to determine whether the Veteran's sleep apnea is directly related to service. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. The examiner should opine whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's sleep apnea had onset during or was caused by or related to active duty service. The Veteran should also be scheduled for another VA examination to ascertain the presence, nature and likely etiology of any current disability manifested by fatigue. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: a) Does the Veteran have a chronic disability manifested by fatigue? The examiner should specifically state whether the Veteran has/has had a diagnosis of chronic fatigue syndrome (at any time during the period of the current claim). b) Please identify the most likely etiology for any/each disability entity manifested by fatigue diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated during the Veteran's active service? The examiner should specifically consider and address the Veteran's allegations of continuity of symptomatology since her Gulf War service, i.e., are they consistent with what is shown by factual evidence in the record, to include the level of the Veteran's activities since his active duty service? c) If the answer to (b) is NO, then please determine whether there are any objective medical indications that the Veteran is suffering from an undiagnosed illness or chronic disability manifested by fatigue; and opine as to whether it is at least as likely as not (a 50% or better probability), that the Veteran's alleged fatigue is due to an undiagnosed illness. The examiner must consider the lay statements made by the Veteran. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 3. Then review the record, ensure that all development sought is completed (and arrange for any further development suggested by any additional evidence received), and readjudicate the claim remaining on appeal. If any benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Then return the appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs