Citation Nr: 18153572 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-32 093 DATE: November 28, 2018 ORDER Resolving reasonable doubt in the Veteran’s favor, new and material evidence is found sufficient to reopen the previously denied claim of service connection for skin rashes; to this extent only, the claim is granted. Service connection for a right ankle tibiotalar anteromedial osteophyte is denied. Service connection for chronic fatigue syndrome (CFS), secondary to the Veteran’s service-connected depressive disorder, is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. The claim of entitlement to service connection for sleep disturbance is dismissed. An initial compensable rating for epididymitis is denied. REMANDED Entitlement to service connection for a disability manifested by intermittent skin rashes is remanded. Entitlement to service connection for a disability manifested by back pain is remanded. Entitlement to service connection for a disability manifested by bilateral knee pain is remanded. Entitlement to service connection for a functional gastrointestinal disorder, including irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. Service connection for skin rashes was denied in a February 2010 rating decision on the basis that a skin disability did not currently exist, and was not shown to be attributable to the Veteran’s active service. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period thereafter. 3. Evidence submitted since the February 2010 denial is new, and when credibility is presumed solely for the purpose of reopening the claim, raises a reasonable possibility of substantiating the claim of service connection, at least in so far as triggering VA’s duty to assist in obtaining a new medical opinion. 4. The Veteran’s right ankle osteophyte, also known as a bone spur, has not been shown to be etiologically related to a disease, injury, or event during active service, including the June 1995 right ankle inversion injury. 5. The Veteran’s diagnosed chronic fatigue syndrome is proximately due to the Veteran’s service-connected depressive disorder. 6. The Veteran’s diagnosed PTSD is identified by a psychologist contracted by VA as being related to an in-service stressor that is adequate to support a diagnosis of PTSD and is associated with the Veteran’s fear of hostile military or terrorist activity. 7. Service connection is already in effect for chronic sleep impairment as a component of the Veteran’s persistent depressive disorder. After perfecting this appeal for service connection of sleep disturbance, service connection was also granted for the Veteran’s sleep apnea. As such, the Veteran is already receiving disability compensation for his service-connected sleep conditions. There are no remaining questions of fact or law to be decided on this matter of service connection. 8. The Veteran’s symptoms of epididymitis are not analogous to complete atrophy of both testicles, and the Veteran has not required long-term drug therapy, hospitalization or intermittent intensive management of infection. Loss of use of one or both testicles is not established. CONCLUSIONS OF LAW 1. The February 2010 rating decision that denied the Veteran’s claim of entitlement to service connection for skin rashes is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. The criteria for reopening the claim of entitlement to service connection for skin rashes have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for a right ankle tibiotalar anteromedial osteophyte have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria to establish service connection for chronic fatigue syndrome as secondary to the Veteran’s service-connected depressive disorder have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. The criteria to establish service connection for PTSD, also associated with the Veteran’s already service-connected depressive disorder, have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). 6. The claim of entitlement to service connection for sleep disturbance has been previously granted, and is dismissed as moot. 38 U.S.C. § 7105(d)(5) (2012). 7. The criteria for a compensable rating (in excess of zero percent) for epididymitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.350, 4.1-4.7, 4.10, 4.115b Diagnostic Code 7523 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1993 to January 1997. His official DD Form 214 confirms one year, one month, and 25 days of sea service. There is no foreign (land) service shown. The Veteran is also in receipt of the Southwest Asia Service Medal. Receipt of this medal, without land service, is indicative of ship-based service in the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, or the Red Sea, which fall within the Southwest Asia theater of operations. As such, the Veteran is a Persian Gulf veteran as defined by VA. 38 C.F.R. § 3.317(e) (2017). New and Material Evidence 1. The previously denied claim of service connection for skin rashes is reopened. Where a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran’s claim of entitlement to service connection for skin rashes was last finally denied in February 2010. This determination was based upon a lack of evidence that the Veteran had a currently diagnosed skin disability, and that any such disability was related to the episodes of acne and open sores the Veteran thought to be a bug bite on the back of his head during service. The Veteran did not appeal the February 2010 rating decision, nor submit additional evidence within the applicable one-year period, and that rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. Thus, new and material evidence is now required to reopen the claim. The Veteran provided photographs of one or both upper thighs and his left arm which are unclear, but appear to show some redness in areas. The Veteran also submitted lay statements from a fellow serviceperson that attests to seeing “skin rashes” present on the Veteran’s arms, stomach, thighs, and back during service. This evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection. Specifically, the Board finds that this new and material evidence triggers VA’s duty to assist in obtaining a new skin examination. As new and material evidence has been received, the claim of entitlement to service connection for a skin disorder is reopened, and to this extent only, the claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a different already service-connected disability; and (3) competent evidence establishing a medical relationship between the service-connected disability and the current disability for which compensation is sought. See Wallin v. West, 11 Vet. App. 509 (1998). The necessary medical relationship may be shown by evidence that the nonservice-connected disability is proximately due to or the result of a service-connected disability, or that the nonservice-connected disease or injury increased in severity beyond its natural progression due to the service-connected disability. 38 C.F.R. § 3.310. The latter circumstance is known for VA purposes as “aggravation.” 38 C.F.R. § 3.310(b). As this Veteran meets VA’s definition of a Persian Gulf veteran based upon his sea service in the Southwest Asia theater of operations, a presumption of service connection is also available for certain undiagnosed illness and medically unexplained chronic multisymptom illnesses. 38 C.F.R. § 3.317. Such disability may be service-connected if it became manifest during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and provided that the disability cannot be attributed to any known clinical diagnosis (i.e. with conclusive pathophysiology or etiology) by history, physical examination, or laboratory testing. 38 C.F.R. § 3.317(a)(1). This presumption applies to chronic disability resulting from any of the following, or any combination of any of the following: an undiagnosed illness; a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, specifically including chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome and other functional gastrointestinal disorders (excluding structural gastrointestinal disease). Compensation shall not be paid under 38 C.F.R. § 3.317 if (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) there is affirmative evidence that an undiagnosed illness 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 during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). 1. Entitlement to service connection for a right ankle tibiotalar anteromedial osteophyte is denied. To be clear, the provisions for presumption of service connection for Persian Gulf veterans discussed above do not apply where a known clinical diagnosis is present, as is the case for the Veteran’s claimed right ankle disability here. Although signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses subject to this presumption may include generalized muscle and/or joint pain, and the Veteran describes right ankle pain, there is specific right ankle pathology that has been identified upon x-ray examination in this instance. VA examination, September 2014. Therefore, service connection for right ankle joint pain is not warranted under the provisions of 38 C.F.R. § 3.317 for undiagnosed illness or medically unexplained chronic multisymptom illnesses. In the September 2014 VA examination, the examiner observed no objective evidence of painful motion, but found a tibiotalar anteromedial osteophyte present on x-ray with some limitation of range of motion shown on examination. The examiner recounted the Veteran’s in-service right lower extremity injuries. Specifically, reports of a June 1995 inversion injury, a July 1995 soft tissue contusion or bruise, and an August 1995 tissue lump are reflected in the service treatment records. However, x-rays taken contemporaneously with these injuries are negative for any abnormalities shown in the right ankle. An August 1995 x-ray finds a normal lower leg series with no fractures or osseous abnormalities demonstrated. The overlying soft tissues were also unremarkable. Similarly, an October 1995 x-ray found no acute changes, no fracture or dislocation, and a normal right leg. On the Report of Medical History form completed by the Veteran in November 1996 at the time of his separation examination, he explicitly denied experiencing right lower leg symptoms, including lameness, broken bones, leg cramps, and bone, joint, or other deformity. The separation medical examination in November 1996 found the lower extremities to be clinically normal. As such, the September 2014 VA examiner opined that given the negative x-rays taken after the in-service injuries in question occurred, the Veteran’s explicit denial of symptoms at the time of his separation from active service, and the normal physical examination at separation, it is most likely that the osteophyte or bone spur now observed on x-ray is due to events occurring after his discharge from active service. In other words, although there is evidence of a current right ankle osteophyte, and evidence of some injury to the right ankle or right lower leg soft tissues occurring in service, the Board finds no competent evidence of a causal relationship, or nexus, between the in-service events and the present disability. Therefore, the criteria for service connection are not met and the appeal must be denied. 38 C.F.R. § 3.303. 2. Service connection for chronic fatigue syndrome is granted. In contrast to the above, chronic fatigue syndrome is explicitly named by VA as a medically unexplained chronic multisymptom illness subject to presumptive service connection for Persian Gulf veterans. 38 C.F.R. § 3.317(a)(2)(i)(B)(1). The Veteran was diagnosed with chronic fatigue syndrome by a VA contracted examiner in July 2018. However, to qualify for presumptive service connection for Persian Gulf veterans, such disability must not be attributed to any known clinical diagnosis by history or other examination or testing methods. 38 C.F.R. § 3.317(a)(1)(ii). Here, the July 2018 examiner determined that the Veteran’s chronic fatigue is secondary to his diagnosed depressive disorder, specifically finding that chronic fatigue began subsequent to the depression and is the “direct result of the antecedent condition.” VA opinion, July 2018. The examiner further stated that while depression does not cause chronic fatigue syndrome, it can certainly cause increased fatigue. As a result, service connection is not warranted as a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, but instead is warranted as a disability proximately due to or aggravated by his service-connected persistent depressive disorder. 38 C.F.R. § 3.310. The claim is granted. 2. Service connection for PTSD is granted. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If, however, a claimed stressor is related to fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the symptoms in a given case are related to the claimed stressor, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran was diagnosed with PTSD by a private psychologist in February 2015. An appropriately verified stressor was not of record at the time, and VA psychologists found that the Veteran did not meet the diagnostic criteria for PTSD. However, in August 2018, a psychologist contracted by VA diagnosed PTSD supported by one of the Veteran’s stressors regarding shipboard service where an acquaintance on another ship fell overboard, while involved in evacuating the American Embassy in Somalia, and the Veteran “knew he could be killed.” Although there is some reasonable doubt as to the matter, this examiner found this stressor to be related to the Veteran’s fear of hostile military or terrorist activity. VA’s definition of “fear of hostile military or terrorist activity” is a Veteran experiencing, witnessing, or being confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire; or attack upon friendly military aircraft, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear helplessness, or horror. Although the Board finds that the sparse description of a fellow serviceman falling overboard from a different ship during evacuation operations may not meet this definition, the Board will resolve all reasonable doubt on this matter and defer to the determination of the contracted psychologist. As the examiner also found this stressor to be adequate to support the diagnosis of PTSD for this Veteran, service connection is warranted. 38 C.F.R. § 3.304(f); VA examination, August 2018. Of note, this examiner also opined that this Veteran’s PTSD and already service-connected persistent depressive disorder have the same etiology and are not independent of each other. Symptoms of these mental disorders will be rated together. 3. The claim of entitlement to service connection for sleep disturbance is dismissed. The Veteran perfected this appeal on a claim of service connection for sleep disturbance with a VA Form 9 submitted in June 2016. A rating decision issued in June 2017, however, granted service connection for persistent depressive disorder, explicitly stating that the compensation provided for the disorder was based in part on the Veteran’s symptoms of chronic sleep impairment. As such, sleep impairment due to mental disorder is already subject to service connection, and the Veteran is currently receiving compensation based on those symptoms. Additionally, a September 2018 rating decision also granted service connection for sleep apnea. Thus, even though this does not appear to be the type of sleep disturbance initially claimed and subject to the appeal perfected in June 2016, it too has already been granted service connection, and the Veteran is already receiving compensation for these symptoms. In all, as service connection has already been established for chronic sleep impairment due to mental disorder, and for sleep apnea, the Board finds this to constitute a complete grant of the benefits sought on appeal in this claim of service connection for sleep disturbance. Having been rendered moot, the claim of service connection for sleep disturbance must be dismissed as there remains no question of fact or law for the Board to decide. 38 U.S.C. § 7104 (2012). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. In this case, the Veteran seeks a higher initial rating for his service-connected epididymitis, currently rated as noncompensably or zero percent disabling. 4. An initial compensable rating (greater than zero percent) for epididymitis is denied. Ratings of the genitourinary system are described in 38 C.F.R. § 4.115b. There is no diagnostic code specific to epididymitis. When an unlisted condition is encountered, the Veteran’s disability is to be rated under a “closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.” Conjectural analogies must be avoided, and ratings may not be assigned to organic diseases and injuries by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Epididymitis is an inflammation of the epididymis, the cordlike structure at the rear of the testicles that provides for storage, transit, and maturation of spermatozoa. Dorland’s Illustrated Medical Dictionary 639 (31st ed. 2007) (defining epididymitis and epididymis). The condition is currently rated under diagnostic code (DC) 7523 for complete atrophy of one or both testes. Under this DC, complete atrophy of one testicle is evaluated as zero percent disabling, complete atrophy of both testicles is evaluated as 20 percent disabling. Rating under this code is appropriate as the anatomical localization and symptomatology are closely analogous. However, the Board does not find the symptomatology of this Veteran’s service-connected epididymitis to equate to complete atrophy of both testicles that would warrant a 20 percent rating. Upon VA examination in September 2014, the Veteran described symptoms as intermittent pain in the region of his right testicle occurring after ejaculation or exertion. The Veteran has not sought medical treatment for the condition since service. He takes over-the-counter ibuprofen and the condition gets better. The Veteran has no renal, voiding, or erectile dysfunction due to epididymitis. His penis was normal on physical examination. The epididymis was normal on examination. Both testes were found to be sensitive to touch, but otherwise no abnormalities were noted. The examiner found no other pertinent physical findings, complications, conditions, signs or symptoms of the disability. The examiner nonetheless found that the Veteran’s “history of possible epididymitis and testicular pain” was as likely as not related to similar complaints during service, and service connection was established on this basis. VA examination, September 2014. Nonetheless, the Board does finds that the intermittent pain on exertion experienced by the Veteran and the testicles being sensitive to touch on examination, with no other signs or symptoms of disability present, is not equivalent or analogous to complete atrophy of both testicles to warrant a 20 percent rating. The Board has considered whether any other diagnostic code pertinent to the genitourinary system would be more appropriate to rate the Veteran’s disability, but does not conclude that any other DC is more applicable. Specifically, the Board considered DC 7525 for chronic epididymo-orchitis, which is an inflammation of both the epididymis and the testes. This DC directs rating as urinary tract infection, unless the epididymo-orchitis infection is related to tuberculosis, which is not the case here. If the rating for urinary tract infection is considered under 38 C.F.R. § 4.115a, a 10 percent rating is warranted for disability requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. No such treatment or management is required for the Veteran’s disability, so although a rating under DC 7525 would also arguably be analogous to the Veteran’s condition, it would also result in a zero percent rating. The Board has also considered whether the Veteran would be entitled to special monthly compensation (SMC) based on the loss of use of a creative organ. Although the Veteran described intermittent pain occurring, including with ejaculation, this explicitly contemplates that ejaculation is still possible, thus negating loss of use. Additionally, loss of use of a testicle is established only where the diameter of the affected testicle is reduced to at least one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle, or when a biopsy, recommended by a genitourologist establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1). However, physical examination of the Veteran’s testes in this case identified no change in diameter, no atrophy, no alteration of consistency, and there has been no biopsy or other finding of absence of spermatozoa shown. Thus, special monthly compensation based on loss of use of a creative organ is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board finds no other grounds by which a rating in excess of zero percent for the Veteran’s current symptoms of epididymitis is warranted under any applicable diagnostic code. The claim must be denied. REASONS FOR REMAND 5. Entitlement to service connection for a disability manifested by intermittent skin rashes is remanded. 6. Entitlement to service connection for a disability manifested by back pain is remanded. 7. Entitlement to service connection for a disability manifested by bilateral knee pain is remanded. 8. Entitlement to service connection for a functional gastrointestinal disorder is remanded. The Board cannot make a fully-informed decision on the issues of service connection for skin rashes, back pain, bilateral knee pain, or a functional gastrointestinal disorder because no VA examiner has opined whether it is at least as likely as not that these are symptoms due to an undiagnosed illness or medically unexplained chronic multisymptom illness resulting from service in Southwest Asia during the Gulf War. The matters are REMANDED for the following action: Schedule the Veteran for a VA Gulf War general medical examination to determine the nature and etiology of any skin rashes, back pain, bilateral knee pain, and functional gastrointestinal (GI) disorder. The examiner must identify any objective indications that the Veteran is suffering from chronic disability of the skin, back, knees, or gastrointestinal system. The examiner should then determine whether these symptoms can be attributed to any known clinical diagnosis, or to a chronic multisymptom illness such as IBS or fibromyalgia. The examiner should also address the relationship, if any, between the Veteran’s claimed skin, back, knee and GI symptoms and his service-connected chronic fatigue syndrome or any other service-connected disability. Is it at least as likely as not that any objective indications of skin, back, knee, or GI disability is (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability? Is it at least as likely as not that any currently diagnosed skin, back, knee, or GI disability is etiologically related to the Veteran’s active service? Consideration should include lay statements describing skin symptoms during service, as well as reports of back pain in January 1995 diagnosed as trapezius strain and in January 1996 diagnosed as muscle strain, reports of knee pain in February 1994 diagnosed as left knee patellofemoral syndrome and February 1995 diagnosed as right knee contusion, or other complaints of diarrhea or GI upset during service. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald