Citation Nr: 18143846 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-48 137 DATE: October 22, 2018 ORDER Entitlement to service connection for bursitis and arthralgia of multiple joints is dismissed. Entitlement to service connection for chronic fatigue syndrome (CFS) is dismissed. Entitlement to service connection for mild obstructive airflow disease is dismissed. Entitlement to service connection for an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 is dismissed. Service connection for a lumbar spine disorder is granted. Service connection for a rash of the shoulders and armpits is granted. Service connection for migraines is granted. Service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depression, is granted. REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. On the record at the July 2017 Board hearing, before promulgation of a decision on the appeals, the Veteran withdrew his appeals for entitlement to service connection for bursitis and arthralgia of multiple joints, CFS, mild obstructive airflow disease, and an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702. 2. The competent and probative evidence is at least in equipoise as to whether a lumbar spine disorder had its onset during or is otherwise related to the Veteran’s active service. 3. The competent and probative evidence is at least in equipoise as to whether a rash of the shoulders and armpits had its onset during or is otherwise related to the Veteran’s active service. 4. The competent and probative evidence is at least in equipoise as to whether migraines had their onset during or are otherwise related to the Veteran’s active service. 5. The competent and probative evidence is at least in equipoise as to whether an acquired psychiatric disorder, to include adjustment disorder with anxiety and depression, had its onset during or is otherwise related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for entitlement to service connection for bursitis and arthralgia of multiple joints, CFS, mild obstructive airflow disease, and an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a rash of the shoulders and armpits have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for migraines have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to August 1988; June 1989 to August 1989; and January 1991 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran and his spouse, in Cincinnati, Ohio, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed.   Dismissal 1. Entitlement to service connection for bursitis and arthralgia of multiple joints. 2. Entitlement to service connection for CFS. 3. Entitlement to service connection for mild obstructive airflow disease. 4. Entitlement to service connection for an acquired psychiatric disability for purposes of eligibility for treatment under 38 U.S.C. § 1702. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 20.204. On the record at the July 2017 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeals for entitlement to service connection for bursitis and arthralgia of multiple joints, CFS, mild obstructive airflow disease, and an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 in accordance with 38 C.F.R. § 20.204. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. In addition, the appeals were in the presence of the Veteran’s attorney representative, who added one issue to be dismissed. The withdrawals were received by the Board prior to the promulgation of a decision on the appeals. Based on the foregoing, there remain no allegations of error of fact or law for appellate consideration as to these issues. The Board has no jurisdiction to review the appeals for entitlement to service connection for bursitis and arthralgia of multiple joints, CFS, mild obstructive airflow disease, and an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702; thus, the appeals for those issues are dismissed. See 38 C.F.R. § 20.202. Service Connection 5. Entitlement to service connection for a lumbar spine disorder. After review of the record, the Board finds that the criteria for service connection for a lumbar spine disorder have been met. The record contains competent diagnoses of degenerative disc disease, arthritis, and intervertebral disc syndrome (IVDS) of the lumbar spine. 08/30/2010, VA Examination; 07/13/2016, C&P Exam. Accordingly, the Board finds competent evidence of a current disability. In July 2017, the Veteran testified that during a period of active service, he experienced severe low back pain while lifting a crate of water, with pain radiating down the leg, and that his symptoms recurred on a continuous basis since. The Board finds such competent and credible evidence establishes an in-service event/injury. He further testified that he began treatment for low back pain within a year of discharge, with treatment on a more or less continuous basis since. 07/19/2017, Hearing Transcript. Statements submitted by the Veteran’s spouse, mother, and friend corroborate the Veteran’s testimony of continuous back pain since discharge. See 07/28/2018, Correspondence. The Board finds that the Veteran’s testimony and the other competent lay statements lend support a finding of continuity of symptoms of a chronic disorder (arthritis). In August 2010, a VA examiner opined that it is at least as likely as not that degenerative disc disease had its onset in or is otherwise related to the Veteran’s active service, noting that the in-service back injury could have started the degeneration process. 08/30/2010, VA Examination. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran has a lumbar spine disorder that had its onset during or is otherwise related to his active service. In sum, as all three service connection elements have been established by competent, credible, and probative evidence, the Board finds that service connection is warranted. 6. Entitlement to service connection for a rash of the shoulders and armpits. After review of the record, the Board finds that the criteria for service connection for a rash of the shoulders and armpits have been met. In July 2017, the Veteran testified that upon his arrival home from service, he had a rash across the shoulders and armpits, and that it has occurred on an intermittent basis since. 07/19/2017, Hearing Transcript. His testimony is corroborated by a statement submitted by his mother. 03/28/2016, Buddy Statement. The Board finds that the Veteran and his mother are competent to report the occurrence of a rash. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran has a skin disorder in the form of a rash of the shoulders and armpits that had its onset during or is otherwise related to his active service, to include based on recurrent symptoms first noted in service. 7. Entitlement to service connection for migraines. After review of the record, the Board finds that the criteria for service connection for migraines have been met. The record contains a competent diagnosis of migraines. 07/13/2016, C&P Exam. Accordingly, the Board finds competent evidence of a current disability. In July 2017, the Veteran testified that he first began experiencing migraines during a period of active service and has experienced them on an intermittent basis since. 07/19/2017, Hearing Transcript. An August 2010 VA examination indicates that the Veteran began experiencing headaches during service, with them occurring on an intermittent basis since. In September 2010, a VA examiner opined that it is at least as likely as not that the Veteran’s headaches are related to service based on complaints of headaches during and after service. 08/30/2010, VA Examination. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran has a headache disorder that had its onset during or is otherwise related to his active service. The Board acknowledges the September 2011 VA examiner’s opinion that headaches are not related to service, but finds that the competent and probative evidence is at least in equipoise as to whether headaches were noted in service with post-service continuity of the same symptomatology. As the disability in question is a chronic disease under 38 C.F.R. § 3.309(a) (as an organic disease of the nervous system), an award of service connection may be established based on continuity of symptomatology, and any doubt on the material issue of nexus is resolved in the Veteran’s favor and the claim is granted. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). 8. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depression. After review of the record, the Board finds that the criteria for service connection for an acquired psychiatric disorder have been met. The record contains a competent diagnosis of adjustment disorder with depression and anxiety. 07/30/2010, Medical-Government; 12/01/2016, Medical-Non-Government. Accordingly, the Board finds competent evidence of a current disability. A November 2012 VA examination indicated that the Veteran’s depression and anxiety are attributable to service-connected fibromyalgia. 11/19/2012, C&P Exam. In November 2016, a private psychologist opined that the Veteran’s adjustment disorder with anxiety and depression is caused by his service-connected fibromyalgia. The private psychologist’s opinion was supported by a review of the Veteran’s history, proper consideration of the relevant lay evidence, a mental status examination and interview, and mental health experience. 12/01/2016, Medical-Non-Government. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder is proximately related to his service-connected fibromyalgia. REASONS FOR REMAND Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. In July 2016, a VA examiner opined that sleep apnea is not due environmental exposures, and cited to medical literature regarding sleep apnea and its risk factors, but did not discuss how that information applies to the unique circumstances of the Veteran. Accordingly, the Agency of Original Jurisdiction (AOJ) should obtain an addendum opinion regarding the etiology of sleep apnea. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2016 to the present. 2. After completing directive #1, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of sleep apnea. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea manifested during or is otherwise related to the Veteran’s periods of active service, to include due to service in the Southwest Asia Theater of Operations. In providing this opinion, the clinician is to consider and address an August 2010 VA examination containing lay evidence of sleep disturbance/apnea during service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was caused by any service-connected disability, to include fibromyalgia and an acquired psychiatric disorder. In providing this opinion, the clinician is to consider and address a November 2012 VA examination that attributes sleep disturbances to fibromyalgia. (c.) Whether it is at least as likely as not (50 percent or greater probability) that sleep apnea has been aggravated (i.e., worsened beyond the normal progression of that disease) by any service-connected disability, to include fibromyalgia and an acquired psychiatric disorder. In providing this opinion, the clinician is to consider and address a November 2012 VA examination that attributes sleep disturbances to fibromyalgia. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel