Citation Nr: 18145462 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-36 412 DATE: October 29, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to Gulf War service, is denied. Entitlement to service connection for insomnia disorder, to include as due to Gulf War service, is denied. Entitlement to service connection for sleep apnea, to include as due to Gulf War service, is denied. Entitlement to service connection for degenerative arthritis of the left knee (left knee disability) is granted. Entitlement to service connection for degenerative arthritis for right knee (right knee disability) is granted. Entitlement to service connection for lumbar strain, spasm, recurrent (low back disability) is granted. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome. 2. An insomnia disorder is not shown to be casually or etiological related to an in-service event, injury or disease, or an undiagnosed multisymptom illness. 3. The Veteran’s sleep apnea is not shown to be casually or etiological related to an in-service event, injury or disease, or an undiagnosed multi symptom illness. 4. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s degenerative arthritis of the left knee is related to his military service. 5. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s degenerative arthritis of the right knee is related to his military service. 6. The competent and probative evidence of record is at least in equipoise as to whether the Veteran’s lumbar strain, spasm, recurrent is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for service connection for insomnia disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 4. The criteria for service connection for degenerative arthritis of the left knee have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for service connection for degenerative arthritis of the right knee have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for service connection for lumbar strain, spasm, recurrent have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 4, 1990 to May 25, 1990 and July 2011 to January 2012. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a June 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Service Connection The Veteran is seeking service connection for chronic fatigue syndrome (CFS), insomnia, sleep apnea, right knee disability, left knee disability, and a low back disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A “Persian Gulf veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2 (i). The Veteran’s records show that he had service in Southwest Asia from January 1991 to May 1991. Therefore, the Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 C.F.R. § 3.317 (a)(2)(i). 1. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to Gulf War service. The Veteran asserts that he is currently suffers from chronic fatigue syndrome as a result of his active duty service, to include service during the Gulf War. 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. Preliminarily, the Board notes that the Veteran’s treatment records throughout the period on appeal reflect no definitive diagnosis or treatment of chronic fatigue syndrome. The Veteran’s service treatment records do not contain any notation, treatment, or diagnosis related to chronic fatigue syndrome. The Veteran was afforded a VA examination in April 2015 related to his claimed chronic fatigue syndrome. The examiner did not find that the Veteran had separate and distinct diagnosis of chronic fatigue syndrome. The examiner acknowledged that the Veteran has a diagnosis of obstructive sleep apnea and the treatment of his sleep apnea has resulted in the improvement of daytime fatigue. Thus, the examiner opined that the Veteran’s chronic fatigue is a symptom or a consequence of his sleep apnea. In this case, as to the issue of whether the Veteran has a separate and distinct diagnosis of chronic fatigue syndrome, the Board finds that the April 2015 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the April 2015 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 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. See Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 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 chronic fatigue syndrome, it is unnecessary to address the remaining elements of the claim for service connection. Moreover, the presumption for the Gulf War veterans is not warranted in this case because as mentioned above by the April 2015 VA examiner the Veteran does not have a current diagnosis of chronic fatigue syndrome and found his fatigue a symptom or consequence of his sleep apnea. Therefore, the Board finds that the Veteran’s claimed chronic fatigue syndrome is a disease with a clear and specific etiology and diagnosis not related to any specific exposure event experience by the Veteran during service in Southwest Asia. 38 C.F.R. § 3.317. Therefore, the Veteran’s claimed chronic fatigue syndrome is not related to any unexplained chronic multi-symptom illness. 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 chronic fatigue syndrome, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for chronic fatigue syndrome is not warranted. 2. Entitlement to service connection for insomnia disorder, to include as due to Gulf War service. The Veteran contends that his insomnia disorder is related to his military service. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of an insomnia disorder. See April 2015 VA examination. Therefore, this element is met. The Board also finds that competent and credible evidence of in-service incurrence or aggravation of an injury of disease. The Veteran served in the Gulf War. The Veteran stated that she was exposed to thick black smoke from burning oil wells, which contained harmful chemicals that the Veteran contends is related to his current disability. It follows that his lay statements are sufficient to show the occurrence of hazardous environmental hazards during service as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the preponderance of the evidence is against finding that the Veteran’s insomnia disorder was caused or aggravated by his military service. The Veteran’s STRs are absent any complaints, treatment, diagnosis, or injury in service related to an insomnia disorder. The Veteran was afforded a VA examination in April 2015 to determine the etiology and nature of the Veteran’s claimed insomnia disorder. The VA examiner confirmed that the Veteran suffered from an insomnia disorder and he noted that the Veteran was also diagnosed with sleep apnea and insufficient sleeps syndrome. The Veteran was prescribed a c-pap machine to treat his sleep apnea, however the Veteran reported seldom use of his c-pap machine. The examiner opined that the Veteran’s insomnia disorder was less likely than not incurred in or caused by his military service. The examiner found no clear link between the Veteran’s sleep disturbance and his military service. The examiner provided that the Veteran’s sleep apnea could be contributing to the Veteran’s sleep difficulties. The Veteran was also afforded a Gulf War general VA examination in April 2015. The examiner opined that the Veteran did not suffer from any diagnosed illnesses for which no etiology, or an undiagnosed illness or diagnosed medically unexplained chronic multi symptom illness. In this case, as to the issue of whether the Veteran’s insomnia disorder is related to his military service and/or whether the Veteran suffers from any diagnosed illnesses for which no etiology, or an undiagnosed illness or diagnosed medically unexplained chronic multi symptom illness, the Board finds that the April 2015 VA examination reports are the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the April 2015 examiner provided a complete and thorough rationale in support of his opinions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s statement concerning his insomnia disorder. In this regard, the Veteran is competent to report the symptoms that Veteran experienced and history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). However, as a lay person, the Veteran has not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of his insomnia disorder. Given his lack of demonstrated medical expertise, the Board finds that the opinion of the April 2015 VA examiner, a medical professional, to be the most probative evidence of record as to the current nature and etiology of his insomnia disorder. Moreover, the presumption for the Gulf War veterans is not warranted in this case because as mentioned above by the April 2015 VA examiner, the Veteran’s insomnia disorder “is a disease with a clear and specific etiology and diagnosis not related to any specific exposure event experience by the Veteran during service in Southwest Asia.” 38 C.F.R. § 3.317. Therefore, the Veteran diagnosed tension insomnia condition is not related to any unexplained chronic multi symptom illness. Although the Veteran has established a current disability and Gulf War service, the preponderance of the evidence weighs against finding that the Veteran’s insomnia disorder is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for an insomnia disorder will therefore be denied. 3. Entitlement to service connection for sleep apnea, to include as due to Gulf War service. The Veteran contends that his sleep apnea is related to his military service. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of sleep apnea. See April 2015 VA examination. Therefore, this element is met. The Board also finds that competent and credible evidence of in-service incurrence or aggravation of an injury of disease. The Veteran served in the Gulf War from about 1990 to 1991. The Veteran stated that she was exposed to thick black smoke from burning oil wells, which contained harmful chemicals that the Veteran contends is related to his current disability. It follows that his lay statements are sufficient to show the occurrence of hazardous environmental hazards during service as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the preponderance of the evidence is against finding that the Veteran’s sleep apnea was caused or aggravated by his military service. The Veteran’s STRs are absent any complaints, treatment, diagnosis, or injury in service related to sleep apnea. The Veteran was afforded a VA examination in April 2015 to determine the nature and etiology of his sleep apnea. The examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the Veteran’s military service. The examiner provided that the Veteran’s sleep apnea is generally related to anatomically obstructive issues in the upper airway. Moreover, the Veteran’s sleep apnea is a condition with a clear and specific etiology. The Veteran was also afforded a Gulf War general VA examination in April 2015. The examiner opined that the Veteran did not suffer from any diagnosed illnesses for which no etiology, or an undiagnosed illness or diagnosed medically unexplained chronic multi symptom illness. In this case, as to the issue of whether the Veteran’s sleep apnea is related to his military service and/or whether the Veteran suffers from any diagnosed illnesses for which no etiology, or an undiagnosed illness or diagnosed medically unexplained chronic multi symptom illness, the Board finds that the April 2015 VA examination reports are the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the April 2015 examiner provided a complete and thorough rationale in support of his opinions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the presumption for the Gulf War veterans is not warranted in this case because as mentioned above by the April 2015 VA examiner, the Veteran’s sleep apnea “is a disease with a clear and specific etiology and diagnosis not related to any specific exposure event experience by the Veteran during service in Southwest Asia.” 38 C.F.R. § 3.317. Therefore, the Veteran diagnosed condition is not related to any unexplained chronic multi symptom illness. Although the Veteran has established a current disability and Gulf War service, the preponderance of the evidence weighs against finding that the Veteran’s sleep apnea is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for sleep apnea will therefore be denied. 4. Entitlement to service connection for degenerative arthritis of the left knee (left knee disability). 5. Entitlement to service connection for degenerative arthritis for right knee (right knee disability). 6. Entitlement to service connection for lumbar strain, spasm, recurrent (low back disability). The Veteran contends that his left knee, right knee, and low back disabilities were caused or aggravated by his military service. The Board will discuss the issues of service connection for a right knee disability, left knee disability, and low back disability together for the sake of brevity. In the present case, the Board first finds competent evidence of current disabilities. The Veteran has a diagnosis with a lumbosacral strain and bilateral arthritis of the knees. See April 2015 VA Examination. Accordingly, the Board finds that the first element of service connection has been met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Veteran contends that his back and knees began during his military service. The Veteran reported that he was required to run and march constantly while deployment. The Veteran also stated that he often had to lift heavy equipment and carrying heavy objects. The Board finds no reason to doubt the Veteran’s credibility as to the aforementioned statements regarding the onset of low back and bilateral knee disability during service, therefore element (2) is met. The question is whether the Veteran’s bilateral knee disability and low back disability are related to his military service. The Board finds that the preponderance of the evidence is in favor of a finding that his right knee, left knee, and low back disabilities are related to his service. The Veteran was afforded VA examination in April 2015 to determine the nature and etiology of the Veteran’s claimed right knee, left knee, and low back disabilities. The examiner held that the Veteran’s claimed conditions were not due to his military service. However, the examiner also opined that the Veteran’s knee and back conditions were likely due to a combination of genetic factors, occupational stresses and rigors of military service. The Board finds that evidence is at least at relative equipoise as to whether the Veteran’s right knee, left knee, and low back disability are related to his military service. The evidence indicates that the Veteran reported an onset of knee and low back pain during service and progression of such pain since his discharge. Coupled with the April 2015 VA examination, which named the rigors of military service as a factor in the Veteran’s current disabilities, the Board finds that evidence is at least at relative equipoise as to whether the Veteran’s right knee, left knee, low back disabilities are related to his military service. (Continued on the next page)   As such, the benefit of the doubt is resolved in the Veteran's favor, and entitlement to service connection for a right knee disability, left knee disability, and a low back disability must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel