Citation Nr: 18151937 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-20 660 DATE: November 20, 2018 ORDER 1. Entitlement to service connection for chronic fatigue syndrome is denied. 2. Entitlement to service connection for memory loss, due to Gulf War hazards as due to an undiagnosed illness, is denied. 3. Entitlement to service connection for obstructive sleep apnea is denied. REMANDED The issue of whether the reduction of the 30 percent disability rating for the service-connected irritable bowel syndrome (IBS) to 10 percent was proper is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome. 2. The Veteran does not have a current diagnosis of a memory loss disorder. 3. The preponderance of the evidence shows that the Veteran’s obstructive sleep apnea is not related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 3. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to March 1993. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from April 2011 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The June 2012 rating decision reconsidered the previous denial of service connection for chronic fatigue syndrome and memory loss, and continued the denial of the claims, while also denying service connection for sleep apnea. In August 2014, the Veteran and his representative were notified of the date, time, and location of a Board hearing, requested by the Veteran, in connection with the present appeal. See 38 C.F.R. § 20.704 (b). He failed to appear for the hearing, however, and no motion for rescheduling was received. Accordingly, the Board will process his appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704 (d). In April 2017, the Board effectively reopened the claim for service connection for chronic fatigue syndrome and remanded the issues on appeal for further development. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). For those who served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 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. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as 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. A “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). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). “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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for chronic fatigue syndrome is denied. The Veteran contends that he has chronic fatigue syndrome related to service in the Gulf War. Service treatment records indicate that the Veteran reported difficulty sleeping due to pain on May 22, 1991. However, on review of the VA examination reports, the Board notes that the examiners did not find that the Veteran has a diagnosis of chronic fatigue syndrome. See January 2011 and May 2017 VA Examination Reports. The May 2017 examiner noted that the Veteran was unsure when the fatigue began, but that it had improved with use of a CPAP machine to treat his sleep apnea. The examiner concluded that it was less likely than not that the Veteran’s complaints of fatigue were related to his service in the Persian Gulf, as the fatigue was the result of his sleep apnea diagnosis. That is, the Veteran did not have chronic fatigue syndrome and the symptom of fatigue was not a symptom of an undiagnosed illness, but instead was a symptom of his sleep apnea. The Board finds the May 2017 examination report highly probative. The examiner considered the Veteran’s entire record, to include his lay statements and medical history, while providing a clear conclusion with a detailed supporting rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). To the extent the Veteran reports experiencing chronic fatigue, the Board finds that while that may be the case, the Veteran is not competent to state that he has a separately diagnosed chronic fatigue disability. See Woehlaert, supra. His reports are outweighed by the more probative evidence of record, which shows that his fatigue is a symptom of his sleep apnea and, as such, has been attributed to a known diagnosis. Thus, because the Veteran does not have a separately diagnosed disability of chronic fatigue syndrome, or symptoms which have not been attributed to a known diagnosis, the Board finds that service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). 2. Entitlement to service connection for memory loss, claimed as an undiagnosed illness due to the Gulf War, is denied. The Veteran also contends that he has memory loss related to service in the Gulf War. However, on review of the VA examination reports, the Board notes that the examiners did not find that the Veteran has a diagnosis of memory loss. See January 2011 and September 2017 VA Examination Reports. Indeed, the January 2011 examination report noted that the evaluation for memory was normal. The Veteran reported that he did not have a diagnosis of memory loss, but that his wife believed he had such a disability. He did not know the onset of such symptomatology, but stated that it had been happening for a long time. The September 2017 examiner opined that he did not have a current diagnosis of memory loss as a symptom of a condition, nor as a separate and distinct condition, due to any exposure during the Gulf War. The examiner noted that the results of a “mini” mental status examination were within normal limits, and that the examination was not indicative of a memory loss disorder. The Board finds the September 2017 examination report highly probative. The examiner considered the Veteran’s entire record, to include his lay statements, and provided a clear conclusion with a supporting rationale. See Nieves- Rodriguez, supra. To the extent the Veteran reports that he is forgetful, the Board finds that the Veteran is not competent to state that he has a separately diagnosed memory disability. See Woehlaert, supra. His reports are outweighed by the more probative evidence of record, which shows that he does not have a current diagnosis of a separate memory disorder or that it is a symptom of an alternative condition. Thus, because the Veteran does not have a separately diagnosed disability of memory loss, or symptoms which have not been attributed to a known diagnosis, the Board finds that service connection must be denied. See Brammer, supra. 3. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran seeks entitlement to service connection for obstructive sleep apnea as a result of his military service. There is no dispute that the Veteran has a current diagnosis of obstructive sleep apnea. See June 2015 VA Examination Report. The Board notes that the Veteran reported that his wife noticed his difficulty breathing at night during the 1990’s. As noted above, the Veteran reported difficulty sleeping due to pain on May 22, 1991. However, service treatment records do not reflect any treatment or symptomatology related to sleep apnea during active duty. The Veteran underwent a VA examination for his sleep apnea in June 2015 and a VA medical opinion was obtained in May 2017. The May 2017 examiner opined that the sleep apnea was less likely than not related to his military service. She acknowledged the service treatment record regarding the Veteran’s reports of difficulty sleeping due to pain in 1991. However, she explained that the documented complaint was nonspecific, and that the Veteran was not diagnosed with sleep apnea until 2011, which was many years after his complaint during service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for obstructive sleep apnea. In this regard, the Board places great probative weight on the May 2017 examiner’s opinion that the Veteran’s sleep apnea was not related to his active service. The examiner clearly reviewed the claims file and adequately explained her conclusion. The Veteran has contended on his own behalf that his sleep apnea is related to his military service. The Board appreciates that the Veteran believes that his current disability is related to service, and that he is competent to report his personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords the lay opinion no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, determining whether sleep apnea, is due to military service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the preponderance of the evidence is against entitlement to service connection for obstructive sleep apnea. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of whether the reduction of the 30 percent disability rating for IBS to 10 percent was proper is remanded. With regard to the issue of a rating reduction for the service-connected IBS, the Board finds that in a May 2017 notice of disagreement, the Veteran disagreed with the rating reduction for IBS in the March 2017 rating decision. As the RO has not issued a statement of the case addressing this claim, the Board is required to remand it. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue a statement of the case on the issue of the propriety of the reduction of the 30 percent rating for IBS. Notify the Veteran of his appeal rights with respect to that issue. If a timely substantive appeal is received, return the case to the Board. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel