Citation Nr: 18152545 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-46 694A DATE: November 23, 2018 ORDER 1. Entitlement to service connection for an unspecified joints disorder, to include as due to an undiagnosed illness, is denied. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. 3. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness, is denied. 4. Entitlement to service connection for skin rashes, to include as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War Era. 2. The Veteran’s chronic unspecified joints condition is not shown to be a manifestation of an “undiagnosed” illness, and is not shown to be etiologically related to his service. 3. The Veteran is not shown to have a diagnosis of chronic fatigue syndrome; his claimed chronic fatigue is not shown to be a manifestation of an “undiagnosed” illness, and is not shown to be etiologically related to his service. 4. The Veteran is not shown to have a diagnosis of a sleep disorder; his reports of impaired sleep are not shown to be manifestations of an “undiagnosed” illness. 5. The Veteran is not shown to have a skin rash disability (diagnosed or “undiagnosed”). CONCLUSIONS OF LAW 1. Service connection for an unspecified joints condition, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 2. Service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. 3. Service connection for a sleep disorder, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. 4. Service connection for skin rashes, to include as due to undiagnosed illness, is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1985 to August 1992. These matters are before the Board on appeal from a September 2013 rating decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish in-service incurrence of an observable medical condition, injury, or event. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The term ‘qualifying chronic disability’ means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (a)(2)(i). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness such as joint pain or fatigue. Id. at 9-10. The symptom is presumed to be related to service, and unlike a claim of “direct service connection,” VA cannot impose a medical nexus requirement. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Compensation shall not be paid for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 3.317(a)(7). The Veteran’s service personnel records reflect that he served in the Southwest Asia Theater of operations during the Persian Gulf War Era. 1. Entitlement to service connection for an unspecified joints disability, to include as due to an undiagnosed illness, is denied. The Veteran’s STRs reflect that he was treated for low back pain in November 1986, October 1987, December 1987, May 1989, April 1990, April 1991, and July 1991. May 1991 lumbar spine X-ray was normal. He was treated for neck pain in November 1991. He was treated for left knee pain in July 1988. He was treated for a right ankle sprain in January 1988. He was treated for left foot plantar fasciitis pain in March 1988. On June 1992 service separation examination, the spine, upper extremities, feet, and lower extremities were all normal on clinical evaluation. In a contemporaneous report of medical history, he denied any history of swollen or painful joints; “trick” or locked knee; foot trouble; or arthritis, rheumatism, or bursitis; he reported a history of bone, joint, or other deformity and recurrent back pain. He reported a dislocated thumb on his left hand, an unusual swelling in the back of his neck that ached at times, and pain in the lower and upper part of his back. Postservice treatment records show treatment for back problems in October 2004 and neck pain/stiffness in April 2005 and in November 2010. On March 2013 VA examination, the Veteran reported that since 1989-1990, his neck had felt stiff; there was no injury but he reported having to carry a heavy ruck sack with helmet and he felt his neck muscles had been hard since then. He reported having back pain since service; he could not remember in detail because it was over 20 years earlier. He reported current daily neck pain lasting 1 to 2 hours and current intermittent low back pain. He reported that his neck pain was not associated with numbness or weakness in the fingers, but his elbow and knee joints hurt mainly with exertion. He was not taking any medication for back/neck/joints pain. The examiner noted that all joints were X-rayed recently, including the elbows, hands, and knees, and all were normal, and ranges of motion were normal on clinical exam. The examiner noted that an October 2004 cervical spine X-ray was normal and a November 2010 cervical spine X-ray revealed degenerative joint disease; a November 2010 thoracic spine X-ray also showed mild lower thoracic degenerative change. Following a physical examination, the diagnoses included cervical degenerative joint disease, diagnosed in 2010; back strain, diagnosed in 1991; and lumbar degenerative joint disease, diagnosed in 2010. The examiner opined, “It is felt [the Veteran’s] back problem developed after discharge from service 1992”, noting that his 1991 back X-ray, one year before discharge, was normal. The examiner noted that the Veteran’s non-migrating joints were normal on clinical exam, with normal range of motion and normal X-ray, and did not have a [joint] disability. The examiner noted that the Veteran’s claimed neck and lumbar pain showed normal range of motion and normal X-ray until 2010, compatible with degenerative joint disease at age 46, and was also not causing a disability pattern. The examiner noted that the Veteran was working until a few months earlier, in 2012, and was then laid off. The examiner opined that the back and neck degenerative joint disease were felt to have begun in 2010, 8 years after the Veteran’s discharge from service. The examiner indicated that there were no diagnosed illnesses for which no etiology was established. The examiner opined that, therefore, the Veteran’s medical problem is a diagnosable illness and less likely as not related to exposure while he served in Southwest Asia. The Veteran is not shown to have an unspecified joints condition, to include as due to undiagnosed illness, nor is the claimed disability shown to be a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders). He has diagnoses of cervical and lumbar degenerative joint disease and back strain (known clinical diagnoses). Examination did not find objective signs or symptoms which may be manifestations of an undiagnosed illness; the Veteran’s reports of such are strictly subjective and have not been independently verified. 38 C.F.R. § 3.317 (a)(1) and (3). Accordingly, service connection for the claimed unspecified joints condition on a presumptive basis (as an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317) is not warranted. The Board finds that the service and postservice evaluation and treatment records, overall, provide evidence against this claim, indicating that the Veteran’s current claimed joint pain is not related to his service. The more probative evidence in the record is against a finding that any current unspecified joints condition was incurred in or caused by the Veteran’s active service. A VA provider has opined that the diagnosed disorders had their onset a number of years after service, and are unrelated to service. Regarding the Veteran’s contention that his joints condition is related to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the cause of, his musculoskeletal disabilities. That is a medical question beyond the realm of common knowledge and incapable of resolution by lay observation. The Veteran has not provided supporting medical opinion or medical treatise evidence; does not cite to supporting factual data; and does not provide an explanation for his opinion that his condition is related to his military service. Therefore, his lay opinion cannot be assigned any significant probative value. While a layperson is qualified to testify about observable matters (see Davidson, supra), the cause of a musculoskeletal disability (without evidence of a related injury or continuity from a precipitating event or injury) is a question beyond the scope of common knowledge or lay observation. It requires medical training and expertise (see Jandreau, supra). Accordingly, the Board concludes that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of fatigue or a chronic fatigue syndrome. On June 1992 service separation examination, there was no report of fatigue. On March 2013 VA examination, the Veteran reported that he had gradual fatigue for years with the same level of tiredness, not progressing, and not debilitating. He reported that he did not see a doctor for fatigue during service or following separation. He reported mostly having fatigue after a bad night’s sleep, and that he was able to do things he had to do with no limitation. He reported that his memory was poor at times, particularly his short-term memory. The examiner noted that on a December 2007 stress test for reported chest pain, the Veteran was able to walk for 10 minutes on a treadmill. No medication was required for chronic fatigue syndrome. The examiner opined that the Veteran’s fatigue may link to his depression/PTSD. The examiner indicated that there were no diagnosed illnesses for which no etiology was established. The examiner opined that the claimed fatigue 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 noted that the Veteran’s claimed fatigue was not shown to be a disability at that time, and indicated that the Veteran did not have, nor had he had, any findings, signs, or symptoms attributable to chronic fatigue syndrome. The examiner indicated that the Veteran did not have, and had not received a diagnosis of, chronic fatigue syndrome. The Veteran is not shown to have a fatigue disorder, to include as due to undiagnosed illness, nor is the claimed disability shown to be a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders). Examination did not find objective signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness; the Veteran’s reports of such are strictly subjective and have not been independently verified. 38 C.F.R. § 3.317 (a)(1) and (3). Notably, chronic fatigue syndrome has not been diagnosed. Accordingly, service connection for the claimed chronic fatigue on a presumptive basis (as an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317) is not warranted. The Board finds that the service and postservice evaluation and treatment records, overall, provide evidence against this claim, indicating that the Veteran’s current claimed fatigue is not related to his service. The more probative evidence in the record is against a finding that any current chronic fatigue disorder was incurred in or caused by the Veteran’s active service. Chronic fatigue was not manifested in service or clinically noted postservice, and service connection for such claimed disability on the basis that it became manifest in service and persisted is not warranted. Regarding the Veteran’s contention that he has chronic fatigue that is related to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the cause of, a complex medical issue such as identifying the cause of such disability. This is a medical question beyond the realm of common knowledge and incapable of resolution by lay observation. The Veteran has not provided supporting medical opinion or medical treatise evidence; does not cite to supporting factual data; and does not provide an explanation for his opinion that his condition is related to his military service. Therefore, his lay opinion cannot be assigned any significant probative value. While a layperson is qualified to testify about observable matters (see Davidson, supra), the cause of a specific medical condition is a question beyond the scope of common knowledge or lay observation and requires medical training and expertise (see Jandreau, supra). The Board notes that a VA examiner has opined that the Veteran’s reports of fatigue may be linked to his service-connected PTSD. Significantly, that same examiner opined that the Veteran did not have a separate fatigue disorder. Any fatigue that is merely a manifestation of PTSD (and not a separate disability) would be considered in rating the PTSD. Accordingly, the preponderance of the evidence is against the claim of service connection for chronic fatigue syndrome, and the appeal in the matter must be denied. 3. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness, is denied. The Veteran’s STRs are silent for any complaints, findings, treatment, or diagnosis of a sleep disorder or respiratory disorder. On June 1992 service separation examination, there was no report of a sleep disorder and the respiratory system was normal on clinical evaluation. In a contemporaneous report of medical history, he denied any history of frequent trouble sleeping. On November 2003 treatment, the Veteran reported that from time to time he had sleepless nights and felt that his sleep was “light”. On September 2010 VA psychiatric examination, the Veteran reported that he had developed symptoms of posttraumatic stress disorder including difficulty falling asleep and staying asleep each night, poor sleep quality, and tossing, turning, sweating, and thrashing in his sleep. He reported that he seldom slept through the night and suffered from recurrent nightmares. These symptoms were attributed to his PTSD, adjustment disorder with mixed anxiety and depressed mood, and polysubstance abuse. On March 2013 VA examination, the Veteran reported that he was deployed to Iraq and Saudi Arabia for 7 months during service. He reported having sleep problems since 1992. He described breathing problems at night, with problems closing his mouth and feeling like his teeth were coming out of his mouth, and waking up 3 to 4 times during the night. He reported having bad dreams and wanting to get up but being unable. He reported going to bed at 11:00 or 12:00 at night, falling asleep after about one hour of tossing and turning and difficulty keeping his legs still. He reported snoring and feeling short of breath while sleeping but not when awaking. He reported that his girlfriend told him he talked, cursed, and argued in his sleep but did not stop breathing. He reported sometimes feeling sleepy during the day and getting tired in the afternoon; he sometimes found it difficult to get out of bed after a poor night’s sleep of only 3 to 4 hours. He reported seldom getting a good night’s sleep without dreaming and not feeling tired the next day. He reported trying to exhaust himself with exercise in hopes of sleeping well. He took no sleep medication and did not require use of a CPAP machine. He did not have any findings, signs, or symptoms attributable to sleep apnea. Following a physical examination, the examiner opined that the Veteran does not have, and has not ever had, sleep apnea. The examiner indicated that there were no diagnosed illnesses for which no etiology was established. The examiner opined that the Veteran’s claimed sleep disorder 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 noted that a sleep study did not find sleep apnea. The examiner opined that, therefore, the Veteran’s medical problem is a diagnosable illness and less likely as not related to exposure while he served in Southwest Asia. On April 2013 sleep study, a diagnosis of sleep apnea was not found. Primary snoring was noted. The Veteran is not shown to have a sleep disorder, to include as due to undiagnosed illness. Examination did not find objective signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness; the Veteran’s reports of such are strictly subjective and have not been independently verified. 38 C.F.R. § 3.317 (a)(1) and (3). Notably, a sleep disorder has not been diagnosed. Accordingly, service connection for the claimed sleep disorder on a presumptive basis (as an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317) is not warranted. The Board finds that the service and postservice evaluation and treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a sleep disorder related to his service. Regarding the contention that he has a sleep disorder related to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, a diagnosis of a sleep disorder. That is a medical question beyond the realm of common knowledge and incapable of resolution by lay observation; it requires medical expertise (aided by clinical observation and diagnostic studies). The Veteran has not provided supporting medical opinion or medical treatise evidence; does not cite to supporting factual data; and does not provide an explanation for his opinion that his condition is related to his military service. The preponderance of the evidence is against the claim of service connection for a sleep disorder, and the appeal in the matter must be denied. 4. Entitlement to service connection for skin rashes, to include as due to undiagnosed illness, is denied. The Veteran’s STRs reflect that in November 1988, he was treated for tinea cruris. In June 1992, he reported a rash in the groin area for one month, noting that exercise and sweating made it worse and frequent showers helped him control itching; the assessment was tinea cruris. On June 1992 service separation examination, his skin was normal on clinical evaluation. In a contemporaneous report of medical history, he denied any history of skin diseases. Postservice treatment records reflect that in January 2004, the Veteran was treated for tinea pedis. In February 2004, he complained of a skin disorder since returning from the Persian Gulf, and papular lesions were noted on both shoulders with scarring; he was treated for jock itch. On April 2004 dermatology consult, the assessment was post-inflammatory hyperpigmentation, which the Veteran was told would fade over time (9 to 12 months); and mild acne vulgaris, of which the Veteran was noted to have a history although no active lesions were seen at that time. In July 2004, he was seen for furunculosis, which had resolved. In April 2005, he was treated for acne. On March 2013 VA examination, the Veteran reported that since 1992 he had an area of discoloration on his neck and arms, chest, and back; the area was not itchy or painful and there was no discharge. He reported that the size of the affected area stayed the same. He reported that he had a rash on his neck during service that recurred and then resolved after 3 years; it then came back and stayed for a few months. He reported that currently there was only discoloration on the right arm and no active skin problem; he was not using any medication for any skin condition. The examiner noted the Veteran’s diagnoses in service of tinea cruris in 1988-1989 and a rash in the groin area in November 1988. On current examination, a skin rash or visible skin condition was not found. The examiner noted that the tinea cruris diagnosed in 1988-1989 had resolved, and that no other skin condition was diagnosed. The examiner opined that the Veteran did not have any diagnosed [skin] illnesses for which no etiology was established. The examiner noted that the Veteran was seen twice by dermatology, and was not found to have an active rash on examination. It is not in dispute that during service the Veteran was found to have/treated for skin rashes. He was also treated for some acute skin complaints 2004/2005. However, the complaints during service were not noted on service separation examination, and the postservice complaints treated in 2004/2005 were also acute, and resolved. The threshold matter that must be addressed is whether the Veteran now has (during the pendency of the instant claim has had) a skin rash disability. No examination or treatment record during the pendency of the instant claim shows/has revealed a chronic disability manifested by skin rash (and the Veteran has not identified any medical provider who during the pendency of the instant claim has diagnosed, or made findings reflective of, a skin rash disability. Accordingly, the Veteran has not presented as valid claim of service connection for such disability, and the appeal in this matter must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel