Citation Nr: 18146513 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-38 812 DATE: October 31, 2018 ORDER Service connection for a heart disability is denied. Service connection hypertension is denied. Service connection for sleep apnea is denied. Service connection for fibromyalgia is denied. REMANDED The claim for an increased rating for service-connected patellofemoral pain syndrome, right knee, is remanded. FINDING OF FACT The Veteran does not have a heart disability, hypertension, sleep apnea, or fibromyalgia, to include an undiagnosed illness manifested by heart, hypertensive, sleep, or pain symptoms, that is related to his service, to include service in the Southwest Asia Theater of Operations. CONCLUSION OF LAW The criteria for service connection for a heart disability, hypertension, sleep apnea, and fibromyalgia, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1987 to September 2005. In June 2018, the Veteran was scheduled for a videoconference hearing. However, he failed to report for his hearing. The hearing request is deemed to have been withdrawn, because he failed to report for this hearing, and no request for postponement has been received. See 38 C.F.R. §§ 20.703, 20.704. 1. Service connection. The Veteran asserts that he is entitled to service connection for a heart disability, hypertension, sleep apnea, and fibromyalgia, to include as due to an undiagnosed illness. Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for hypertension, and arteriosclerosis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. “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. 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) (2017). Service-connected disability compensation may be paid to (1) a claimant who is “a Persian Gulf veteran”; (2) “who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of [38 C.F.R. § 3.317 ]”; (3) which “became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021”; and (4) that such symptomatology “by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317 (a), (b). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any 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)(i). For purposes of this section, the term 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 will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “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). For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). By definition, section 1117 only provides compensation for symptoms of a chronic disability that have not been attributed to a “known clinical diagnosis.” 38 C.F.R. § 3.317 (a)(1)(ii); Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. The Board notes that service connection is currently in effect for disabilities that include major depressive disorder, irritable bowel syndrome, bilateral plantar fasciitis, chronic headaches, radiculopathy of the bilateral lower extremities, patellofemoral pain syndrome, carpal tunnel syndrome of the bilateral upper extremities, and degenerative arthritis of the right shoulder. The Veteran’s service treatment records show the following: A comprehensive clinical evaluation program (CCEP) report notes that beginning in March or April of 1991, the Veteran reported experiencing symptoms that included fatigue, joint pain, and sleep disturbance. In April 1995, he sought treatment for psychiatric problems. He was noted to have decreased sleep, and joint pain. A 5-day blood pressure check, covering findings between January and February of 1996, shows that he had systolic readings between 118 and 144, and diastolic readings between 78 and 82. In March 1999, he sought treatment for chest pain. The assessment was costochondritis. He was given a one-week prescription for prednisone. In February 2000, the Veteran complained of symptoms that included fatigue. His blood pressure was 138/78. A Physical Evaluation Board, dated in May 2005, shows that the Veteran was noted to have a Category One condition (“unfitting conditions which are compensable and ratable”) of chronic low back pain with degenerative disc disease. See also, Medical Board Report, dated in April 2005 (noting a sole diagnosis of chronic lower back pain). The findings included a blood pressure reading of 131/81. A report, dated in September 2005, shows that the Veteran reported that he slept two to three hours a night. The assessment was depression. As for the post-service medical evidence, a VA examination report, dated in November 2010, shows that the Veteran reported about a ten-year history of hypertension, with current use of Atenolol for 2-3 years. There is a notation that there is no history of myocardial infarction, hypertensive heart disease, heart rhythm disturbance, valvular heart disease, congestive heart failure, and sleep impairment, and that continuous medication is required for hypertension, but not for heart disease. A VA Gulf War Protocol disability benefits questionnaire (DBQ), dated in August 2014, notes that the Veteran reported a medical history that included sleep apnea. The examiner stated the following: The Veteran does not meet the diagnostic criteria for fibromyalgia, and he has no diagnosable chronic multi-symptom illness with a partially-explained etiology. None of his claimed conditions are related to his time in the Persian Gulf. VA reports, dated in 2009 and 2012, shows treatment for chest pain (2009) and possible cardiomegaly (2012), however, the Veteran’s hypertension, heart disorder, and OSA (obstructive sleep apnea) are not related to his military service. A VA heart DBQ, dated in August 2014, shows that the Veteran reported that he did not know what was wrong with his heart, but that he had previously been hospitalized for four to five days for heavy chest pain. He was noted to be a poor historian. He was also noted to be on medication for his heart. The report notes that there was no history of myocardial infarction, congestive heart failure, arrhythmia. An EKG (electrocardiogram) and chest X-ray, taken in August 2014, were both noted to be normal. The examiner stated that the Veteran’s claims file is silent for any issues related to his heart, that all service physical examinations are silent for a heart issue, and that there was no heart event for at least 21 years after the Veteran’s service in the Persian Gulf, and seven years after separation from service. A VA hypertension DBQ, dated in August 2014, contains a history of hypertension, with an unknown date of diagnosis. The Veteran was noted to have stated that he could not remember any specific details related to hypertension and his military service. The examiner noted that his claims file was silent for hypertension, and that all service physicals listed normal blood pressure readings. Hypertension appears on his problem list in remote data, and not during military service. Hypertension was not diagnosed until after separation from active duty service. The Veteran was noted to be a poor historian. A VA sleep apnea DBQ, dated in August 2014, contains a diagnosis of obstructive sleep apnea, with a date of diagnosis of 2010. The Veteran was noted to be a poor historian. The examiner noted that obstructive sleep apnea was first diagnosed in September 2005, over five years following separation from service. A VA fibromyalgia DBQ, dated in June 2015, shows that the Veteran complained of symptoms that included stiffness, fatigue, sleep disturbance, and widespread musculoskeletal pain. The examiner indicated that the Veteran does not now have, and has never been diagnosed with, fibromyalgia. The examiner concluded that fibromyalgia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that he could find no medical records reflecting a diagnosis of fibromyalgia. A VA sleep apnea DBQ, dated in June 2015, shows that the Veteran asserted that he had snored excessively during service, and that this was thought to be related to his chronic allergies. He was diagnosed with obstructive sleep apnea in 2006, following separation from service. He currently uses a CPAP machine. The examiner noted that a 2006 sleep study resulted in a diagnosis of sleep apnea. A VA hypertension DBQ, dated in June 2015, shows that the Veteran reported being treated with Atenolol during service on a daily basis. However, this appears to be contradicted by VA treatment records in July 2008 showing that Atenolol was a pending outpatient medication at that time, as well as On examination, he had systolic readings between 130 and 132, and three diastolic readings of 80. A VA Gulf War protocol DBQ, dated in June 2015, shows that the following conditions had been reported: hypertension, sleep apnea, and back, knee, lower leg, shoulder, arm, foot conditions and fibromyalgia. The only diagnosed condition was insomnia. A VA Gulf War protocol DBQ, dated in October 2015, shows that the Veteran did not report any relevant symptoms. The examiner noted that the Veteran’s overall health picture does not suggest that he is suffering from Gulf War Syndrome. VA progress notes include a July 2007 chest X-ray with an impression of “normal chest.” A January 2008 chest X-ray contains an impression of no acute or active cardiac or pulmonary disease. In July 2008, he was started on Atenolol (Atenolol was noted under the pending outpatient medications in July 2008). A March 2012 chest X-ray contains an impression noted borderline cardiomegaly, with no acute cardiopulmonary process. A May 2012 PET/CT myocardial infusion test contains an impression noting, “Scintigraphically suggestive of a moderate to large sized zone of the ischemia in the mid to distal anterior wall of moderate to severe intensity due to a corresponding reversible perfusion defect. There is no scintigraphic evidence of infarction. The remainder of the perfusion of the left ventricle appears normal.” Reports, dated in June 2012, note cardiac catheterization with percutaneous coronary intervention (PCI). A recent X-ray was noted to show cardiomegaly. He was noted to have been treated for chest pain two to three years before. It was noted that there was no prior history of myocardial infarction, congestive heart failure, coronary artery bypass graft, PCI, cardiac catheterization, valve surgery, or cardiac transplant. His medications were noted to include Atenolol. Another June 2012 report notes a medical history that included heart disease, chest pain, hypertension, sleep apnea, and obesity. A report, dated in June 2014, shows that the Veteran was noted to have elevated blood pressure, sleep apnea, “poor, restless sleep,” and CAD (coronary artery disease). He was noted to have a history that included obesity, snoring, joint pain (knee), degenerative joint disease, chronic back pain, heel arthralgia, coronary arteriosclerosis, and benign hypertension. The report indicates that follow-up was warranted for undiagnosed illnesses that included symptoms of muscle and joint pain, sleep disturbance, and cardiovascular symptoms. An August 2016 report indicates that the Veteran reported a history of coronary artery disease with a myocardial infarction in 2011, and placement of a catheter in 2012. The impressions included hypertension, obstructive sleep apnea, and knee, back and neck pain. A September 2016 report contains assessments that included chronic pain syndrome. The Board finds that the claims must be denied. The service treatment records have been summarized. They show complaints that included fatigue, decreased sleep, and joint pain. However, a heart disability, hypertension, sleep apnea, and fibromyalgia, were not diagnosed during service, nor were they shown upon separation from service. None of the claimed conditions are shown for years after separation from service; arteriosclerosis and/or hypertension is not shown during service, or within one year of separation from service. 38 C.F.R. §§ 3.303. 3.307. There is no competent opinion of record to show a link between a heart disability, hypertension, or sleep apnea, and the Veteran’s service. Fibromyalgia is not shown. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Accordingly, service connection on a direct or presumptive basis (not involving 38 C.F.R. § 3.317), is not warranted. The Veteran’s service records show that his awards include the Kuwait Liberation Medal, and the Southwest Asia Service Medal with two bronze stars, and that he meets the criteria for consideration as a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317. However, the Veteran is not shown to have an undiagnosed illness involving any of the claimed symptoms. See e.g., August 2014, June 2015, and October 2015 VA DBQs. He has been shown to have coronary artery disease, hypertension, obstructive sleep apnea, and multiple joint disorders, which are diagnosed conditions, and for which service connection may not be granted on this basis. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). He is not shown to have fibromyalgia. Gilpin. The Board therefore finds that the Veteran is not shown to have a “qualifying chronic disability” involving any of the claimed symptoms. See 38 C.F.R. § 3.317 (a)(2)(i). Accordingly, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. With regard to medical treatise evidence, the Board has considered the articles submitted by the Veteran, which merely note the criteria for undiagnosed illnesses, and background information on fibromyalgia in Gulf War veterans. The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In the present case, the treatise evidence submitted by the Veteran is not accompanied by the opinion of any medical expert associating any condition with the Veteran’s service in the Persian Gulf region; the Board has determined that the Veteran is not shown to have a “qualifying chronic disability” involving any of the claimed symptoms. The treatise evidence that has been submitted is general in nature, and does not reasonably approximate the facts and circumstances of the Veteran’s case. The Board therefore concludes that this information is insufficiently probative to warrant a grant of any of the claims on any basis. The Board has also considered the Veteran’s statements. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As he has repeatedly been noted to be a poor historian, the probative value of Veteran’s testimony has been reduced. His service treatment records have been discussed. There is no competent opinion of record in favor of any of the claims on a direct basis, or to show that he meets the criteria under 38 C.F.R. § 3.317 involving any relevant symptoms. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran’s contentions, to the effect that the claimed disabilities was caused by the Veteran’s service. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Accordingly, the Board finds that the preponderance of the evidence is against the claims, and the claims are denied. REASONS FOR REMAND The claim for an increased rating for a right knee disability is remanded. A review of the most recent VA disability benefits questionnaire for the Veteran’s right knee, dated in June 2016, shows that the examiner did not provide an estimated loss of range of motion in degrees based on the Veteran’s reported flare-ups and their impact. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Sharp, the Court of Appeals for Veterans Claims (Court) explained that it must be clear that a VA examiner has "considered all procurable and assembled data" before stating that an opinion cannot be reached. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). When the record is unclear as to whether a VA examiner has done this—for example, “by obtaining all tests and records that might reasonably illuminate the medical analysis”—the Board must remand the matter for clarification or additional development. Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In other words, it must be apparent that the inability to provide an opinion without resorting to speculation “reflect[s] the limitation of knowledge in the medical community at large” and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing—of the individual examiner. Id. As part of this obligation, a VA examiner should identify when specific facts cannot be determined. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional, to assess the current severity of the Veteran’s service-connected right knee disability, to include specific findings regarding pain on range of motion testing, and an estimation of functional loss. a) The examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable) for both the right and the left knee (i.e., the paired joint). If the examiner is unable to conduct the required testing, or concludes testing is not necessary, he or she should clearly explain why that is so. b) The examiner must provide an opinion as to the severity of the Veteran’s right knee symptoms, and how those symptoms impact the Veteran’s occupational functioning. c) With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups from the Veteran. The examiner should also record the Veteran’s complaints of symptoms with regard to any functional loss with repetitive use. d) The examiner must express an opinion as to whether or not the Veteran’s functional ability is significantly limited during flare-ups, or with repetitive use, and those determinations should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups or with repetitive use. e) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel