Citation Nr: 18151847 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-25 647 DATE: November 20, 2018 ORDER The request to reopen a claim of entitlement to service connection for hypertension is granted. The request to reopen a claim of entitlement to service connection for an eye disability is granted. The request to reopen a claim of entitlement to service connection for chronic fatigue is granted. Entitlement to chronic obstructive pulmonary disease (COPD) claimed as shortness of breath is denied. Entitlement to service connection for nerve damage is denied. REMANDED The underlying claim for service connection for hypertension is remanded. The underlying claim for service connection for an eye disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for unspecified joint pain is remanded. The underlying claim for service connection for chronic fatigue is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A January 1993 rating decision denied the Veteran’s claim of entitlement to service connection for hypertension; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 2. A January 1993 rating decision denied the Veteran’s claim of entitlement to service connection for an eye disability; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 3. A January 1993 rating decision denied the Veteran’s claim of entitlement to service connection for chronic fatigue; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 4. The Veteran’s diagnosed COPD claimed as shortness of breath is not shown to have been incurred in or aggravated by active service. 5. The Veteran is not shown to have a disability manifested by nerve damage; neither was any such disability incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 1993 denial of service connection for hypertension, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received since the January 1993 denial of service connection for an eye disability, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received since the January 1993 denial of service connection for chronic fatigue, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. Criteria for service connection for COPD claimed as shortness of breath have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2018). 5. Criteria for service connection for nerve damage have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1969 and from September 1990 to December 1991. The Veteran’s second period of service includes service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, the Veteran submitted a claim for unspecified joint pain when he submitted the current claims in March 2011. The RO accepted the claim as an application to reopen a claim of entitlement to service connection for fibromyalgia to include joint and muscle pain. The Board acknowledges that the RO adjudicated a claim for entitlement to service connection for joint pain in a January 1993 rating decision. However, the Veteran’s joint pain was attributed to the right knee only at that time. As the current clam refers to unspecified joint pain, the Board has considered this claim de novo. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim has been recharacterized as noted above. After issuance of an April 2017 Supplemental Statement of the Case (SSOC), the Veteran submitted additional evidence in the form of lay statements and private treatment reports including a statement from S. Leyland, M.D., dated in July 2016. However, the Veteran submitted a waiver of review of the evidence by the Agency of Original Jurisdiction (AOJ). As such, the Veteran is not prejudiced by adjudication of the claims decided herein. The Board notes that the Veteran requested a video conference hearing before the Board in May 2017. The Veteran was notified that he was scheduled for a video conference hearing before the Board in September 2018. In correspondence dated in October 2018, the Veteran indicated that he did not desire a hearing. New and Material Evidence Hypertension, Eye Disability, and Chronic Fatigue The Veteran most recently filed a request to reopen his claim for entitlement to service connection for hypertension, an eye disability, and chronic fatigue in March 2011. At the time of his last final denial in January 1993, the evidence of record included service treatment records and VA examination reports. Since the last final denial, evidence added to the record includes VA treatment records, private treatment reports, records from the Social Security Administration (SSA), VA examination reports, private medical opinions, and a hearing transcript from a hearing held before a Decision Review Office (DRO). Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for hypertension, an eye disability, and chronic fatigue are reopened. The underlying claims for service connection are addressed in the remand section below. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the injury or disease was contracted in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Regulations provide that compensation may be paid to any Persian Gulf War veteran “suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses).” 38 U.S.C. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested 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 no later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a 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. Id. 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 (CFS); (2) fibromyalgia; (3) irritable bowel syndrome (IBS); 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). To date, VA has not identified any other medically unexplained chronic multi-symptom illnesses for purposes of 38 C.F.R. § 3.317. Shortness of Breath - COPD The Veteran submitted the current claims on appeal in March 2011. The Veteran disagreed with the denial of the claim and this appeal ensued. A review of the Veteran’s service treatment reports (STRs) does not reflect any complaints, findings, or treatment for a respiratory disability during either period of active duty service. Private treatment reports from Spartanburg Regional Healthcare System dated in July 2004 reflects a report of shortness of breath and increased heart rate. The Veteran was assessed with atrial fibrillation, congestive heart failure, and hypertensive disease. The private and VA outpatient treatment reports do not reflect treatment for a respiratory disability including COPD. At a VA examination in May 2011, the Veteran reported that he got shortness of breath when walking uphill and trouble breathing since 1999. He attributed his trouble breathing to his congestive heart failure. He denied any known lung problems and he did not have a history of any respiratory diagnosis or asthma. He was noted to have a history of smoking and exposure to SCUD missiles, chemical fires, and burning waste. He reports a cough which is occasionally productive and a feeling that something is stuck in his throat. He denied hemoptysis and anorexia. He endorsed dyspnea but no chest pain. The examiner indicated that the Veteran did not have any respiratory diagnosis but pulmonary function tests (PFTs) were ordered. In a March 2012 VA addendum, a VA examiner indicated that the PFTs revealed a diagnosis of moderately severe COPD. The examiner noted that the Veteran had quit smoking eighteen years prior. The examiner concluded that the Veteran’s respiratory disability has a clear and specific etiology and was less likely than not related to a specific event in Southwest Asia. The examiner indicated that he could not find any medical or scientific research to link the respiratory disability to Gulf War exposure or a specific exposure event. As an initial matter, the Board notes that the Veteran’s report of shortness of breath has been attributed to a known clinical diagnosis (COPD). As such, it does not fall within the purview of the presumptive provisions of 38 C.F.R. § 3.317 for undiagnosed illnesses in veterans who served in the Persian Gulf. With regard to COPD, the Veteran has not submitted any medical evidence specifically indicating that his COPD is related to his service. In the March 2012 addendum opinion, the VA examiner specifically found that the Veteran’s COPD was related to his history of smoking and unrelated to any exposures during the Gulf War. The examiner provided specific detail in support of the opinion, including citing to medical treatise evidence. The VA examiner was fully aware of the Veteran’s past medical history. Moreover, the opinion has not been questioned or undermined by any other medical opinions. Thus, the Board finds the VA examiner’s opinion to be highly probative and entitled to great weight. As to the Veteran’s belief that his shortness of breath which has been associated with COPD is related to his period of service, the Board acknowledges the holding of the United States Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is considered competent to observe symptoms such as shortness of breath, but determining a diagnosis for, or cause of, the symptoms requires medical training and expertise. Likewise, the determination of the etiology of the shortness of breath is a medically complex determination that requires advanced knowledge of the mechanical systems of the body. Here, the Veteran has not been shown to have the requisite medical qualifications and/or training to address the etiology of the claimed shortness of breath. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for COPD claimed as shortness of breath must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nerve Damage The Veteran submitted the current claims on appeal in March 2011. The Veteran disagreed with the denial of the claim and this appeal ensued. A review of the Veteran’s service treatment reports does not reflect any complaints, findings or treatment for nerve damage. Nerve conduction studies of the lower extremities performed in November 2003 at Carolina Neurology were conducted for a report of numbness in the left foot and occasional back pain. The studies revealed focal disease in the left tibial greater than peroneal nerve. A more proximal radicular component appeared present but additional entrapment at the left popliteal fossa could not be excluded. At a VA examination in May 2011, the Veteran reported toe numbness on the left starting in 1991 and right upper extremity numbness in 1992. He also endorsed upper extremity weakness worse on the right and left fourth toe weakness and right leg weakness. Following a clinical evaluation, the Veteran was assessed with mild to moderate sensory polyneuropathy by physical examination. An electromyography (EMG) was ordered. In an October 2011 VA examination note, the results of EMG of the lower extremities was reported to be normal. In a February 2012 addendum, the VA examiner indicated that there was no objective evidence of peripheral neuropathy of the lower extremities based on the EMGs. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for nerve damage. In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim”). Absent competent evidence of the existence of a disability, service connection cannot be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While it appears that the Veteran had a focal disease in the left tibial greater than peroneal nerve in 2003 based on nerve conduction studies, prior to the filing of the current claim, when an EMG was conducted in 2011 at VA, the study was normal. As such, the evidence of record does not establish that any diagnosed nerve damage is related to the Veteran’s service. The Board acknowledges that the Veteran is competent to testify as to symptoms he has experienced during and since service-such as numbness and weakness of the extremities. However, to the degree that such symptomatology satisfies the criteria for a diagnosis, the Board places far greater weight on the opinions and findings of the VA examinations which included diagnostic testing. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of neuropathy or any other nerve disorder. See 38 C.F.R. § 3.159(a)(1) (2018) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Moreover, there is no clinical evidence to show that the Veteran has been diagnosed with any nerve disorder at any time during the appeal period. The absence of any current nerve disorder is clearly supported by the medical evidence of record. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a nerve disorder claimed as nerve damage as a consequence of an event, injury, or disease in service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for nerve damage must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the remaining claims can be reached. Hypertension, Eye Disability, Heart Disability A review of the Veteran’s service treatment reports reflects that while the Veteran was deployed to the Saudi Arabia during the Persian Gulf War, he underwent a blood pressure protocol for five days in September 1991. During that time his blood pressure was recorded as 190/120 and 170/110 on the first day, 170/110 and 160/100 on the second day, 150/92 and 146/90 on the third day, 180/100 and 142/90 on the fourth day, and 159/94 and 160/100 on the fifth day. The records do not include an assessment of hypertension. An undated Summary of Care reflects a diagnosis of hypertension as of 1992. In a March 2011 and a February 2012 statement, T. Copeland and W. Youngblood, fellow service members, reported that the Veteran had to make twice daily visits during his deployment for blood pressure checks. The Veteran was afforded a VA examination in May 2011 at which time he was diagnosed with hypertension since at least 1988. In an addendum opinion in February 2012, a VA examiner noted that the Veteran’s hypertension existed prior to service [in Southwest Asia]. The examiner indicated that he was unable to find the Veteran’s blood pressures from 1988 nor was there evidence of aggravation beyond the natural progression during service. The examiner indicated that the Veteran’s blood pressure was recorded as 160/106 in August 1991 and this was not found to be sustained. He concluded that there was no evidence to link any aggravation beyond the natural progression to active duty. The Veteran submitted a statement from S. Leyland, M.D., dated in July 2016. Dr. Leyland indicated that he was not able to review any service treatment reports because the Veteran was not provided with those records. However, he noted that the Veteran did not have systolic hypertension prior to his deployment to Saudi Arabia and multiple individuals who worked with the Veteran confirmed that the Veteran was treated for severe high blood pressure during that time. He opined that the Veteran’s blood pressure changes during his service in Saudi Arabia were related to his status and the physiologic and psychologic stress that he experienced while involved in the Gulf War. Dr. Leyland also concluded that the Veteran’s high systolic pressures which were over 200 at times had a severe impact on the condition of his heart and his aorta. He concluded that the longstanding hypertension resulted in complications including congestive heart failure, enlarged heart, and aortic dissection. In light of the opinion of Dr. Leyland which links hypertension to the Veteran’s second period of service as well as his opinion linking the claimed heart disability to the Veteran’s hypertension, and the VA examination which includes a diagnosis of hypertensive retinopathy, another VA opinion and, if necessary, a VA examination should be obtained prior to adjudication of these issues. Joint Pain and Chronic Fatigue At a May 2011 VA examination, the Veteran reported chronic fatigue since the Gulf War. He was noted to have been diagnosed with hypothyroidism in 1990 for which he takes medication. He reported that his fatigue did not last twenty-four hours or longer after exercise and after resting for two hours he felt better. His fatigue has not been debilitating and there have been no incapacitating episodes of treatment by a physician. The examiner concluded that the Veteran does not meet the criteria for chronic fatigue syndrome. The examiner noted that the Veteran did not report chronic fatigue when he returned from the Gulf War and his fatigue was not constant, lasting 24 hours or more. At the May 2011 VA examination, the Veteran did not have any suboccipital, lateral neck, upper trapezius, medial scapular, subintercostal space, lateral elbow, upper or outer buttock area, proximal or lateral thigh, or medial or distal thigh tender points on examination. The Veteran reported pain in the back of his neck, pain in his upper back, and right hip pain. He denied migratory joint pain, neuropsychologic symptoms, generalized muscle aches, and weakness. Motor examination was grossly normal. There was no muscle abnormality on examination. The examiner indicated that there was no evidence of fibromyalgia on examination. The examiner failed to offer any opinion as to the etiology of the claimed chronic fatigue and joint pain nor did he link any symptoms to a diagnosed disorder. In order to properly adjudicate the claims on appeal, an etiology opinion should be obtained. Skin Disability A review of the Veteran’s service treatment reports does not reflect any complaints, findings, or treatment for a skin disability during either of the Veteran’s period of service. At a hearing before a DRO, the Veteran testified that he developed skin discoloration and pigmentation changes as well as rashes from his knees to his ankles while serving in Saudi Arabia. He indicated that he was under high stress and exposed to very high temperatures and chemicals during service. At a VA examination in May 2011, skin examination revealed stasis hyperpigmentation changes in the anterior lower leg with chronic venous stasis changes. The Veteran was assessed with stasis dermatitis. In an addendum opinion in February 2012, the examiner indicated that the stasis dermatitis was less likely than not related to a specific exposure event while serving in Southwest Asia. The examiner indicated that he could not find any medical or scientific research to link the condition to Gulf War exposure or a specific exposure event. The examiner did not address whether the Veteran’s stasis dermatitis was directly related to service and instead focused only on exposures during the Veteran’s Gulf War service. In light of the testimony which indicates that the Veteran developed skin changes and rashes during his Gulf War service and continues to suffer from the same, an addendum etiology opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). TDIU The Board observes that the development and readjudication of the Veteran’s appeal for service connection for hypertension, an eye disability, a heart disability, chronic fatigue, joint pain, and a skin disability may affect his combined evaluation during the appeal period under consideration for the TDIU appeal. As such, the service connection issues are inextricably intertwined, and adjudication of the Veteran’s TDIU appeal must be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Submit the Veteran’s claims file to an examiner with expertise to determine the etiology of the claimed hypertension, an eye disability, and a heart disability (other than the previous VA examiners, if possible). The examiner should review the claims file and provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that hypertension originated during any period of the Veteran’s active service or is otherwise etiologically related to the Veteran’s periods of active service. (b) The examiner should also specifically state whether there is clear and unmistakable evidence that hypertension existed prior to any period of active duty service and, if so, whether hypertension was aggravated beyond the natural progression of the disorder by the Veteran’s active service. (c) IF AND ONLY IF the examiner determines that hypertension is related to service, the examiner should provide an opinion as to whether the claimed eye disability (diagnosed as hypertensive retinopathy) or any heart disability (variously diagnosed as congestive heart failure, enlarged heart, and aortic dissection) were either caused or aggravated by hypertension. A complete rationale should be included for any opinion expressed. If the examiner determines that another VA examination is necessary, schedule the Veteran for an appropriate examination. 2. Forward the Veteran’s claims folder to an examiner (other than the previous VA examiners, if possible) for an addendum opinion regarding the etiology of the Veteran’s complaints of joint pain and chronic fatigue. The examiner is requested to review the claims file. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. (a) The examiner is asked to provide an opinion as to whether the Veteran has an undiagnosed illness or a medically unexplained chronic multisymptom illness. (b) If the Veteran has a disability or disabilities, manifested by joint pain of the neck, upper back, and right hip or chronic fatigue, is it is at least as likely as not (50 percent or more probability) that the Veteran’s claimed conditions had their onset or are etiologically related to the Veteran’s periods of active service, with discussion of the environmental hazards of the Gulf War? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements and complaints concerning his symptoms, including those made to medical providers, VA medical opinions, and the Veteran’s testimony before a DRO. The report of examination should include a complete rationale for all opinions expressed. 3. Submit the Veteran’s claims file to an examiner with expertise in treating skin disabilities (other than the previous VA examiners, if possible). The examiner is requested to review the claims file. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran’s claimed skin disability (diagnosed as stasis dermatitis) had its onset or is etiologically related to the Veteran’s second period of active service. A complete rationale should be included for any opinion expressed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel