Citation Nr: 18149423 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-12 307 DATE: November 9, 2018 ORDER The issues of entitlement to service connection for a low back condition, fatigue, muscle pain, joint pain, and weight loss, are dismissed. Service connection for an unspecified trauma-related disorder is granted. Service connection for a stomach disorder is denied. Service connection for headaches is denied. REMANDED The claims for service connection for a skin condition, bilateral hearing loss, vertigo, and sleep apnea, are remanded. FINDINGS OF FACT 1. In a statement, dated in August 2018, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated that the Veteran desired to withdraw the issues of entitlement to service connection for a low back condition, fatigue, muscle pain, joint pain, and weight loss. 2. The Veteran has an unspecified trauma-related disorder due to his service. 3. The Veteran does not have a stomach condition, to include an undiagnosed illness manifested by stomach symptoms, due to his service. 4. The Veteran does not have headaches, to include an undiagnosed illness manifested by headaches, due to his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals of the issues of entitlement to service connection for a low back condition, fatigue, muscle pain, joint pain, and weight loss, by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for an unspecified trauma-related disorder have been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for a stomach condition, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.6. 4. The criteria for service connection for headaches, to include as due to an undiagnosed illness have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from May 1987 to September 1987, and on active duty from January 1991 to September 1991. In July 2018, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.702 (e). In December 2017 (VA Form 21-526EZ and VA Form 21P-527EZ), the Veteran raised the issues of entitlement to pension, and to service connection for “fibromyalgia foot disease.” These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). 1. Dismissal. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. A review of the claims folder shows that the Veteran initiated an appeal on the issues of entitlement to service connection for a low back condition, fatigue, muscle pain, joint pain, and weight loss. The Veteran has since indicated that he desires to withdraw his appeal as to these issues. Specifically, in a statement, dated in August 2018, The Veteran’s representative stated that the Veteran desired to withdraw these issues. This statement indicates that the Veteran understands the consequences of withdrawing his claims. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal on the issues listed above. They are dismissed. 1. Service connection The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder, a stomach condition, and headaches, 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 ulcers, peptic (gastric or duodenal), 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. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). “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). 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 v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. There is a clear distinction between individuals who serve on active duty and those who only serve on active duty for training (ACDUTRA). An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and be entitled to disability compensation benefits. In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the Court stated that the placement of the burden of proof on a veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C. § 101 (22), (24); 38 C.F.R. § 3.6 (a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing inactive duty for training (INACDUTRA). Id.; see also 38 U.S.C. §§ 106, 1110; 38 C.F.R. § 3.303 (a). ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6 (c). To establish status as a “veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000). Further, the burden to establish “veteran” status for a claim based on a period of ACDUTRA is on the appellant. Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The Court has rejected the argument that there should be an “adverse presumption” against VA where service medical records have been lost or destroyed while in the Government’s control. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran’s service treatment records appear to be incomplete, and do not contain any findings, complaints, or diagnoses shown to be relevant. Separation examination reports are not of record; it appears that the Veteran waived a separation examination report following his active duty for training in 1987. See Statement of Option, dated in July 1987. A report, apparently created in association with service in the Army Reserve, dated in February 1989, shows that the Veteran was noted to have sought treatment for complaints of a one-day history of headache and lightheadedness. He was noted to have a history of head trauma in 1981, and epileptic seizure, with seizures usually preceded by a headache and lightheadedness. His last seizure was reported as occurring in June 1989 (presumably this is a typographical error, should be “1988”). The assessment was seizure disorder “unfit for duty.” Acquired psychiatric disorder. A VA PTSD examination report, dated in January 2014, shows that the examiner determined that the Veteran does not have PTSD, or any other mental disorder. A VA mental disorders DBQ, dated in January 2015, shows that the diagnosis was unspecified trauma-related disorder. The examiner concluded that the Veteran’s condition claimed was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that although the Veteran’s service treatment records did not show evidence of psychiatric disturbance in service, the Veteran started using psychotropic medications for depression and anxiety within roughly one year of discharge from service, and that there are no pre-military stressors reported that could better account for onset of symptoms than combat exposure. Although the Veteran had a bitter divorce a few years ago, it should be noted he had depression and anxiety prior to that time and records show he has largely attributed the divorce to his anxiety and depression. Therefore, it is at least as likely as not that his current diagnosis of unspecified trauma-related disorder per DSM-V criteria is due to military service in the Persian Gulf War in 1991. VA progress notes, dated beginning in 2014, contain multiple notations that the Veteran was seen for therapy for PTSD, anxiety, and an interpersonal problem, and that he was being monitored for PTSD, anxiety and depression. Subsequently-dated reports include problem lists that note PTSD and major depressive disorder. Private treatment records, dated in 2014, show that the Veteran was noted to have depression and anxiety. His medications included escitalopram, for anxiety, and Deplin, for mood. The Board finds that service connection for an unspecified trauma-related disorder is warranted. The only competent opinion of record is the January 2015 VA examiner’s opinion, and this opinion weighs in favor of the claim. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that service connection for an unspecified trauma-related disorder is warranted. Stomach condition. In a statement, dated in January 2014, the Veteran asserted that he has a stomach virus from service in the Philippines in 1987, or in the Persian Gulf in 1991, in both cases to include from drinking local water. See Veteran’s statement (VA Form 21-4138), dated in January 2014. During a hearing, held at the Regional Office in June 2016, the Veteran testified that during service he was diagnosed with a viral syndrome that was caused by bacteria (H. pylori). He further indicated that his condition had resolved in 2014. The post-service medical evidence includes reports from B.L., M.D., dated between 2013 and 2014. This evidence shows that in 2014, the Veteran was noted to have a helicobacter pylori gastrointestinal tract infection, helicobacter-associated gastritis, and flatulent dyspepsia. His medications included Prevpac. A VA Persian Gulf War protocol disability benefits questionnaire (DBQ), dated in January 2014, shows that no relevant history of digestive symptoms was reported. A VA esophageal conditions DBQ, dated in January 2015, shows the following: The Veteran reported a history of heartburn since 2005. He was positive for H. pylori and this was medically treated successfully. The diagnosis was gastroesophageal reflux disease (GERD), with a date of 2005. In April 2015, a VA opinion was obtained. The examiner, E.T., M.D., concluded that the Veteran’s stomach condition was less likely as not (less than 50 percent probability) incurred in, or caused by, the Veteran’s service. The physician explained the following: The Veteran had received a breath test for H. pylori in December 2014, with a positive result. He was treated with Prevpac. H. pylori is a bacterium that is found in the stomach, associated with gastritis and ulcers. When it is treated with the antibiotic combination in Prevpac, the infection is resolved. The symptoms most likely to be associated with the H. pylori are those for which the Veteran was evaluated in his VA examination for GERD. Therefore, whatever decision was made regarding GERD would be the same as any decision regarding H. pylori, with the exception that, with appropriate treatment, the H. pylori infection is no longer present. The Board parenthetically notes that service connection is not in effect for GERD. VA progress notes, dated beginning in 2016, contain multiple notations that the Veteran had been treated for H. pylori in 2014; the Veteran repeatedly denied having any relevant symptoms, to include nausea, vomiting, or diarrhea. The Board finds that the claim must be denied. The service treatment records do not show any complaints, findings, or diagnoses shown to be relevant. Accordingly, a chronic condition is not shown during service. 38 C.F.R. § 3.303(a), (b). The earliest medical evidence of a stomach disorder is dated in 2014. This is about 13 years after separation from service. There is no competent opinion of record to show a link between a stomach disability and the Veteran’s service. The only competent opinion is the April 2015 VA opinion, and this opinion weighs against the claim. Accordingly, service connection on a direct or presumptive basis (not involving 38 C.F.R. § 3.317), is not warranted. Headaches. VA progress notes show that in October 2013, the Veteran complained of trouble with chronic headaches since Desert Storm. A VA Persian Gulf War DBQ, dated in January 2014, notes complaints of headaches. A VA headache DBQ, dated in January 2014, shows that the Veteran reported that he had tension-type headaches beginning in around 1997, and that he wasn’t sure if the headache was associated with a dissolving marriage. He further stated that his migraine headaches started around 1998 or 1999. The diagnosis was headaches, with a date of onset of “late 1990’s.” The examiner concluded that the Veteran’s headache pattern is not etiologically related to any military associated environmental exposure, explaining that the Veteran’s headache pattern is more likely related to situational-relationship oriented stress and not factors of military service. A VA headache DBQ, dated in January 2015, shows that the Veteran reported having headaches since 2013. The diagnosis was tension (headache) with a date of diagnosis of 2013. The Board finds that the claim must be denied. The service treatment records do not show any complaints, findings, or diagnoses shown to be relevant. Accordingly, a chronic condition is not shown during service. 38 C.F.R. § 3.303(a), (b). The Veteran has provided significantly differing histories for his headaches, however, he reported that his headaches began in 1997 (during a January 2014 VA examination), and that they began in 2013 (during a January 2015 VA examination). In 1989, he was noted to have headaches in association with a seizure disorder, however, headaches were not diagnosed. The earliest medical evidence of a chronic headache disorder is dated in 2014. This is about 13 years after separation from service. There is no competent opinion of record to show a link between the Veteran’s headaches and his service. The only competent opinion is the January 2014 VA opinion, and this opinion weighs against the claim. Accordingly, service connection on a direct or presumptive basis (not involving 38 C.F.R. § 3.317), is not warranted. Conclusion. The Veteran’s service records show that his awards include the Southwest Asia Service Medal, 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., January 2015 VA DBQ. He has been shown to have had an H. pylori infection, and headaches, 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). 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. Finally, there is no evidence to show that the Veteran sustained any relevant injury during his ACDUTRA between May 1987 and September 1987, nor is there any evidence to show that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during any other period of ACDUTRA, or an injury that was incurred in or aggravated by a period of INACDUTRA. See 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “Veteran” by virtue of the ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24). 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). The Veteran’s 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 1. The claims for service connection for a skin condition, bilateral hearing loss, vertigo, and sleep apnea, are remanded. Skin condition: A VA skin disability benefits questionnaire (DBQ), dated in January 2015, shows that the Veteran was afforded a VA examination. The examiner indicated that the Veteran does not have an undiagnosed disability manifested by skin symptoms, however, the examiner did not provide an etiological opinion based on direct service connection. On remand, such an opinion should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Bilateral hearing loss: The post-service medical evidence includes a VA examination report, dated in January 2014, which shows that the Veteran was noted to have sensorineural hearing loss, bilaterally, however, the test results did not show that he had hearing loss in either ear, as defined for VA purposes at 38 C.F.R. § 3.385. Subsequently-dated VA progress notes show that in February 2018, the Veteran was noted to have word recognition scores of 92 percent AD (in the right ear), and 96 percent AS (in the left ear). As bilateral hearing loss in both ears, as defined for VA purposes at 38 C.F.R. § 3.385, is now shown, on remand an etiological opinion should be obtained. Barr. Vertigo: Private treatment reports, dated in 2014, note Meniere’s disease. A VA progress note, dated in July 2015 notes vertigo due to labyrinthitis and sinus issues while in the Persian Gulf, “as noted multiple vets returning from Middle East with ongoing issues of sinus infections, allergies, vertigo, this is more than likely due to the SC (service-connected) period while in Middle East.” A VA progress note, dated in February 2018, notes right-sided tinnitus associated with dizziness and unilateral headache possibly 2/2 (secondary to) retrocochlear pathology vs migraine. On remand, the Veteran should be afforded an examination, and an etiological opinion should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Sleep apnea: at the time of the Veteran’s VA examination, in January 2015, sleep apnea was not diagnosed. Evidence received thereafter includes a July 2016 sleep study which contains a diagnosis of sleep apnea. Two lay statements have also been received. On remand, the Veteran should be afforded an examination, and an etiological opinion should be obtained. McLendon. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a skin disorder that either began during or was otherwise caused by his military service, and, if not, whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran has an undiagnosed illness manifested by skin symptoms, to include any associated medically unexplained chronic multisymptom illness, as a consequence of his service in the Persian Gulf War? Why or why not? 2. Seek to obtain the Veteran’s audiometric test results from February 2018. 3. Afford the Veteran a VA examination to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has hearing loss in either ear that either began during or was otherwise caused by his military service? Why or why not? 4. Afford the Veteran a VA examination to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has vertigo that either began during or was otherwise caused by his military service, or that has been caused or aggravated by his service-connected tinnitus, or, if not, whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran has an undiagnosed illness manifested by vertigo or dizziness, to include any associated medically unexplained chronic multisymptom illness, as a consequence of his service in the Persian Gulf War? Why or why not? 5. Afford the Veteran a VA examination to determine whether it is at least as likely as not (50 percent or greater   probability) that the Veteran has sleep apnea that either began during or was otherwise caused by his military service? Why or why not? J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel