Citation Nr: 18149316 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-17 112A DATE: November 9, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to service connection for a sleep disability, to include obstructive sleep apnea, is denied. Entitlement to service connection for bilateral upper extremity disability claimed as paralysis is denied. Entitlement to service connection chronic obstructive pulmonary syndrome (COPD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PSTD) and/or depression, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, chronic fatigue syndrome. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, obstructive sleep apnea. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, left arm paralysis. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, right arm paralysis. 5. The Veteran’s COPD is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. 1112, 1113, 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. 1112, 1113, 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 3. The criteria for service connection for left arm paralysis have not been met. 38 U.S.C. 1112, 1113, 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 4. The criteria for service connection for right arm paralysis have not been met. 38 U.S.C. 1112, 1113, 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 5. The criteria for service connection for COPD have not been met. 38 U.S.C. 1112, 1113, 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from June 1955 to June 1957. He died in December 2017. The appellant is his surviving spouse. In January 2018 correspondence, VA informed her that she had been substituted for the Veteran in the claims pending at the time of his death. The appellant was scheduled for a Board hearing in August 2018 for which she failed to appear. A subsequent August 2018 VA Form 27-0820 reflects that she was informed that if she wished to schedule another hearing, she would need to contact the Board. It has now been more than two months, and the appellant has not requested that the RO or the Board schedule her for another Board hearing. Moreover, her representative has submitted an appellate brief and has not requested a Board hearing. Thus, the Board considers her request to be withdrawn. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for chronic fatigue syndrome, obstructive sleep apnea, and paralysis of the bilateral upper extremities With regard to a present disability, a March 2011 VA examiner found the Veteran’s symptoms did not meet the diagnostic criteria for chronic fatigue syndrome, any sleep conditions including sleep apnea, or upper extremity paralysis. In addition, a review of VA medical center (VAMC) records does not show treatment for chronic fatigue syndrome, obstructive sleep apnea, or paralysis of the bilateral upper extremities. Neither the Veteran nor the appellant has been shown to be competent to make a diagnosis of the claimed disabilities or an etiology. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran’s service treatment records are negative for chronic fatigue complaints, upper extremity complaints, or sleep complaints. As is discussed in further detail below, the preponderance of the evidence is against the claims; therefore, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Chronic Fatigue Syndrome The claims file does not reflect a diagnosis of chronic fatigue syndrome. While the Veteran has reported daytime sleepiness and fatigue, the probative evidence does not reflect that these are manifestations of chronic fatigue syndrome. A February 2004 VA record reflects that the Veteran reported feeling “tiredness all the time”; he was evaluated and treated for a thyroid problem. The Veteran has also reported that he feels tired after walking half a block, and that this started after he had surgery for a kidney stone post-service (see 2011 VA clinical record). The 2011 VA examiner found the Veteran’s symptoms including fatigue were more likely than not due to his nonservice-connected COPD and iron deficient anemia. The probative evidence of record reflects that the Veteran’s symptoms were related to nonservice-connected disability(ies), and that he did not have chronic fatigue syndrome; thus, service connection is not warranted. Sleep Disability An August 2003 VA record reflects that the Veteran reported a history of snoring at night with interrupted sleep and daytime sleepiness. An April 2004 VA record reflects that the Veteran reported a 20-year history of loud snoring, that he wakes up sleepy, and that he takes a nap in the afternoon; the assessment was most likely obstructive sleep apnea. The Veteran was scheduled for a sleep study, but records reflect that he did not show for the appointment. 2010 and 2011 VA records reflect that the Veteran denied obstructive sleep apnea; however, a 2012 record reflects “preop sleep apnea of Level 1”. Assuming arguendo, that the Veteran had sleep apnea or another sleep disability manifested by snoring and daytime sleepiness, there is no probative evidence that it was causally related to, or aggravated by, service and/or a service-connected disability. Moreover, his reported 20-year history of loud snoring is indicative of an onset of symptoms in approximately 1984, which is decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Bilateral Upper Extremity Disability The Veteran referred to having bilateral upper extremity paralysis; however, in describing the symptoms, he stated in 2011 that when he is tired, he gets hand tremors and cannot hold a cup in the right hand. He did not lose movement, did not have numbness, and did not have paresthesia of the upper extremities. Upon examination, he retained strength of all major muscle groups to include hand grasp. The 2011 VA examiner opined that the Veteran did not have muscle paralysis, but instead had generalized muscular atrophy. The only disability for which the Veteran is in receipt of service-connection is a left upper arm scar; the 2011 VA examination report reflects no residuals of nerve damage, tendon damage, bone damage, or loss of deep fascia or muscle substance. Subsequent VA clinical records are also against a finding of paralysis. April 2015 records reflect that the Veteran moved all his extremities well, had no resting tremor, had intact sensation, and had normal reflexes. He was noted to have slight intention tremor in the upper extremities. An April 2004 VA clinical record reflects that the Veteran reported shaking of the hands for 30 to 40 years, or since approximately 1964, which is several years after separation from service; he was noted to have postural tremor. The Federal Circuit has held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case, assuming arguendo that the Veteran’s muscle atrophy and/or tremors results in functional impairment to such an extent and is a disability, the evidence does not support a finding that it is as likely as not causally related to, or aggravated by, service, and/or a service-connected disability. The earliest evidence of muscle atrophy and/or tremors is years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent credible evidence of record that the Veteran has a bilateral upper extremity disability causally related to service and/or a service-connected disability. Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD) With regard to a present disability, a March 2011 VA examination report shows a diagnosis of COPD. Service treatment records (STRs) are silent for complaints, treatment, or diagnosis of COPD. However, the records show a diagnosis of acute poisoning due to exposure to mass accumulation of paint fumes and dust in 1956. In April 1956, the Veteran had been wearing a respiratory while cleaning a fresh water tank, and subsequently had complaints of nausea, vomiting, a fever, and general malaise. A diagnosis of metal fume fever was made. He was treated for two days and released to duty as asymptomatic. Turning to nexus, the preponderance of the evidence does not support a finding that Veteran’s in-service metal fume poisoning, or any other complaint, is causally related to his COPD. The February 2011 VA examiner opined that there was no evidence of persistent symptoms during service, nor evidence of chronic poisoning that could have had later sequela. In this regard, the Board notes that the Veteran’s 1957 Report of Medical Examination for separation purposes reflects that his lungs and chest were normal upon clinical evaluation; in addition, a chest x-ray at that time was normal. The 2011 VA examiner opined the Veteran’s COPD was a result of his fifty-year history of smoking. VA clinical records reflect that the Veteran was a smoker and had been counseled to stop smoking (see June 2002, January 2014 records) and that he had been smoking since as early as 1953. As such, the Board finds that the February 2011 VA examination has significant probative weight. The examiner based his opinion upon review of the record, lay statements, and an examination of the Veteran. Additionally, his opinion is consistent with the evidence of record notably that the Veteran did not receive treatment for COPD during his service or have chronic complaints in service. Further, as to any argument that service connection should be awarded because the Veteran, assuming arguendo, began smoking in service or because he was supplied with cigarettes in service, the Board notes that for claims filed after June 9, 1998, as here, special provisions in the law relating to claims based upon the effects of the use of tobacco products during service provide that, notwithstanding any other provisions of law, a veteran’s disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran’s service. 38 U.S.C. § 1103; 38 C.F.R. § 3.330. Thus, there is no basis in law for granting service connection on a direct basis for any disability due to his tobacco use during the Veteran’s period of service. Given that the most probative evidence is against the finding of a nexus between the Veteran’s service and the current disability, the Board finds that service connection is not warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. VA clinical records reflect that the Veteran screened normal/negative upon PTSD screenings in July 2003, July 2004, and July 2005. He subsequently filed a claim for service connection for an acquired disability, to include PTSD. The Veteran has alleged several stressors; however, the Board finds that his contention of having two friends killed when fired upon by the enemy is not consistent with his service (he served during peacetime), and his contention of firing on targets during the Korea War is not consistent with his service (he served during peacetime). Thus, further development with regard to those claimed stressors is not warranted. The Veteran also contends that he witnessed the death of someone whom he knew by the name of “Big Joe” when a gun exploded aboard the USS Bushnell. The Veteran served aboard the USS Bushnell from December 1955 to May 1967. VA has a duty to attempt to verify the Veteran’s claimed stressor. The Board is mindful that the Veteran could not provide specific dates or the Veteran’s last name. Nonetheless, VA has a duty to attempt to verify the Veteran’s stressor, even if requests for verification cover only 60-day periods (i.e. VA may need to divide the requests into 60-day periods from December 1955 to May 1967 if required by the verifying authority). Gagne v. McDonald, 27 Vet. 397 (2015). Thereafter, if the Veteran’s stressor is verified, a supplemental opinion should be obtained as to whether it is as likely as not that the Veteran had an acquired psychiatric disability based on solely on a verified stressor. The matter is REMANDED for the following actions: 1. Attempt to verify an alleged stressor, of the witnessing the death of a sailor (perhaps named Joe) when his gun exploded aboard the USS Bushnell, through the JSRRC (Joint Service Records Research Center), ship logs, investigations, and/or the other appropriate repositories. As the time-period alleged by the Veteran is longer than the two-month period required by JSRRC, the RO should submit multiple 60-day record searches. 2. Thereafter, If and Only If, there is competent credible evidence that the Veteran witnessed the death of a sailor aboard the USS Bushnell when his gun exploded, obtain a supplemental opinion by a psychologist or psychiatrist as to whether it is as likely as not (50 percent or greater) that the Veteran had an acquired psychiatric disability based on a verified stressor. The clinician should consider the pertinent evidence of record to include the a.) normal/negative screenings for PTSD screenings in July 2003, July 2004, and July 2005; and b.) the 2011 VA examination report. If the clinician finds that is it as likely as not that the Veteran has an acquired psychiatric disability causally related to service, the clinician must state the stressor. (Continued on the next page)   A complete rationale should be provided by the clinician. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel