Citation Nr: 18153864 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-30 579 DATE: November 28, 2018 ORDER Entitlement to service connection for skeletal arthritis of the entire body, to include as due to undiagnosed illness is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a sleep disorder, to include as due to undiagnosed illness is denied. Entitlement to service connection for hair loss as due to undiagnosed illness is denied. REMANDED Entitlement to service connection for muscle damage to the left leg is remanded. Entitlement to service connection for valvular heart disease is remanded. Entitlement to service connection for female sexual arousal disorder is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a bilateral eye disability secondary to diabetes mellitus is remanded. Entitlement to service connection for a kidney disability secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity secondary to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. The evidence shows the Veteran’s whole-body pain is attributable to skeletal arthritis, which diagnosis bears no etiological relationship to any aspect of active duty service. 2. The Veteran does not have a hearing loss disability in either for VA purposes. 3. The record shows the Veteran’s tinnitus began more than a year after separation from active duty service, and is etiologically unrelated to any aspect of service, including any exposure to hazardous noise therein. 4. The most probative evidence of record shows the Veteran’s diagnosed sleep apnea is etiologically unrelated to service. 5. The objective evidence of record does not show a current disability related to hair loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for skeletal arthritis of the entire body have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.385 (2017). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 5. The criteria for entitlement to service connection for hair loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1983 to March 1987, and from March 1987 to September 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on a claim for entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for whole body pain, to include as due to undiagnosed illness Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active 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 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317 (a)(1). I n claims based on qualifying chronic disability, 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. The record shows the Veteran served in the Southwest Asia theater of operations. However, in the case of the whole body pain of which the Veteran complains, the record reflects a clear diagnosis of skeletal arthritis to which the symptom is attributable, furnished at the Veteran’s September 2015 VA examination. The examiner continued, “[t]he [Veteran’s] skeletal arthritis is due to degenerative joint disease which is related to the normal aging process and genetic predisposition,” adding, “[n]o joint pain is due to [an] undiagnosed condition.” As the Veteran’s arthritis owes to a clear and specific etiology, it cannot be considered a component of a multisymptom undiagnosed illness. Moreover, the examiner’s explanation makes clear that the Veteran’s skeletal arthritis bears no etiological relationship to active duty service. The service treatment records show no in-service complaints of whole body arthritic symptoms, and no treating or examining provider has identified an in-service injury or event that may have triggered the condition. Accordingly, the Board must deny the appeal for service connection for whole body pain, to include as a component of a medically unexplained chronic multisymptom illness. 2. Entitlement to service connection for a sleep disorder, to include as due to undiagnosed illness As explained above, where a firm diagnosis has been furnished, a symptom or disorder related thereto shall not be considered a component of a medically unexplained chronic multisymptom illness. The Veteran has averred that her sleep problems constitute a component of such illness. However, the record reflects a September 2013 sleep study which resulted in a diagnosis of sleep apnea. The sleep apnea diagnosis was confirmed at the Veteran’s September 2015 VA examination. A review of the service treatment records shows no sleep-related complaints. No sleep study was performed in service or within a year of separation therefrom, and no treating or examining provider has ever suggested the Veteran’s sleep apnea might be attributable to any aspect of active duty service. Accordingly, the appeal for service connection for a sleep disorder must be denied. In sum, the symptoms of which the Veteran complains have been shown to be attributable to a firm diagnosis, and there is no objective evidence that that diagnosis bears any etiological relationship to any aspect of active duty service. 3. Entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A review of the record shows the Veteran has never been shown to have hearing loss in either ear as defined in the regulations. A September 2015 audiological examination showed puretone thresholds in to be 20 decibels or lower at every tested frequency in both ears. Speech recognition scores, using the Maryland CNC test, were 98 percent in the right ear and 100 percent in the left. The examiner indicated that these results reflected no thresholds shifts since service, and essentially no change in hearing from what is shown at the Veteran’s 1982 entrance examination. There is no objective evidence to controvert these findings. As such, the Board finds that the Veteran does not have a current diagnosis of hearing loss in either ear as defined in the regulations, and the appeal must be denied. 4. Entitlement to service connection for tinnitus The Veteran acknowledged at her September 2015 audiological examination that the onset of her tinnitus was approximately two years prior to that examination, or approximately ten years after separation from service. As explained above, the Veteran does not have hearing loss in either ear as defined in the regulations, and there is no showing of a traumatic in-service noise event that might explain the Veteran’s tinnitus. There were no tinnitus-related complaints in service. Finding no basis in the record to link the tinnitus symptom of which the Veteran now complains to any aspect of active duty service, or to hearing loss, the evidence cannot be said to be in equipoise with regard to this claim. As such, the appeal for service connection for tinnitus must be denied. 5. Entitlement to service connection for hair loss as due to undiagnosed illness The Veteran avers that she has experienced hair loss, and has argued that this constitutes a component of multisymptom undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran underwent a VA examination in connection with the claim in September 2015. That examiner stated, “I suspect traction alopecia based on history. However, the patient’s hairpiece makes it impossible to conduct a comprehensive examination of her hair and scalp. Because of this I am not able to render a confident diagnosis...I advised the patient that if she is able to return to clinic without her hairpiece in place, that I will be able to perform a complete exam and come to a diagnosis, as well as assess the likelihood of connection to military service. The patient reports that it is unlikely that she will be willing to have her hairpiece removed. She is welcome back should she change her mind.” These examination notes make clear that a firm diagnosis cannot be furnished without the Veteran’s cooperation. While the Board recognizes that providing that cooperation may be cumbersome and inconvenient, the duty to assist, to include by way of the provision of a VA examination to develop evidence necessary to support a service connection claim, is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, where a Veteran wishes help, she must provide information that is essential in obtaining the putative evidence required to prove a claim. As that has not happened here, and as the record does not otherwise reflect a current diagnosis of hair loss, or indeed show objectively that hair loss has taken place, the claim for service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, and for its associated disorders, including a bilateral eye disability, a kidney disability, and peripheral neuropathies or the bilateral upper and lower extremities, are remanded The record reflects a current diagnosis of diabetes mellitus, type II, and the record shows that a panoply of disorders, including a bilateral eye disorder, a kidney disorder, and peripheral neuropathies affecting every extremity have been directly attributed to the Veteran’s diabetes. The Board notes that the above-enumerated disorders, excepting diabetes, have not been theorized as directly related to service, but rather as secondary manifestations of the Veteran’s diabetes mellitus, which she has argued is directly related to active duty service. However, the record is bare of a medical opinion explicitly addressing the etiology of diabetes mellitus in this case, which opinion has profound significance for all of the above-enumerated claims. As such, a remand is necessary here so that a VA examination can be scheduled and a medical opinion obtained exploring the etiology of diabetes mellitus in this case. 2. Entitlement to service connection for muscle damage to the left leg is remanded The record reflects that the Veteran is service-connected for scarring affecting the left leg. The nature and basis of her claim for muscle damage to that leg, including any relationship to the injury associated with the scarring, is not fully apparent from the record. On remand, the Veteran should be afforded a VA examination exploring the etiology of any muscle damage to the left leg. 3. Entitlement to service connection for valvular heart disease is remanded. The Veteran has not yet been afforded a VA examination exploring the etiology of her heart disease. On remand, an examination must be scheduled and a medical opinion obtained to determine whether heart disease bears any etiological relationship to any aspect of active duty service in this case. 4. Entitlement to service connection for female sexual arousal disorder is remanded. The Veteran has not been afforded a VA examination to explore the etiology of her claimed sexual arousal disorder. On remand, such an examination must be scheduled and a medical opinion obtained to determine the etiology of the condition, to include whether it is a symptom of or otherwise attributable to any other service-connected condition, or whether it may constitute a component of a multisymptom undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. 5. Entitlement to service connection for depression is remanded. The Veteran has not been afforded a VA psychiatric examination in this case. On remand, a VA examination must be scheduled and a medical opinion obtained exploring the etiology of any psychiatric disorders that may be present. 6. Entitlement to service connection for headaches is remanded. The Veteran has consistently averred that her headaches began in service, that they have continued unabated since that time, and that they became markedly worse around 2013. The record does not contain a firm diagnosis of a condition to which these headaches might be attributable. A VA examiner with whom the Veteran met in September 2015 suggested they might be etiologically related to untreated sleep apnea, but furnished a negative etiological opinion with respect to direct service connection. The Board notes the Veteran is not service connected for a sleep disorder. However, that examiner did not adequately address the Veteran’s consistent and credible complaints of headaches, nor explain fully why a diagnosis of migraine headaches or other headache-related diagnosis was inappropriate. Moreover, as noted above, the Veteran’s claimed psychiatric disability is herein remanded for a VA examination to explore its etiology. It is not apparent from the record whether headaches constitute a component of the Veteran’s psychiatric disability, if any. Accordingly, on remand, a new VA examination must be scheduled, and a medical opinion obtained giving due consideration to the Veteran’s lay statements regarding continuity of symptomatology since separation. Finally, the examiner must explain fully whether headaches may constitute a component of a multisymptom undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. The matters are REMANDED for the following action: 1. After obtaining the necessary clearance, the AOJ should obtain and associate with the claims file any outstanding VA or private medical records. 2. After the preceding development is completed, schedule the Veteran for a VA examination to explore the nature and etiology of her diagnosed type II diabetes mellitus. The examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that diabetes mellitus manifested in service or within a year of separation therefrom, or is otherwise etiologically related to any aspect of active duty service. 3. Schedule the Veteran for a VA examination to explore the nature and etiology of her claimed muscle damage of the left leg. The examiner is requested to furnish a firm diagnosis, if possible, to explain the Veteran’s symptomatology, and to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed disability or disabilities manifested in service or within a year of separation therefrom, or is or are otherwise etiologically related to any aspect of active duty service. 4. Schedule the Veteran for a VA examination to explore the nature and etiology of the Veteran’s heart disease. The examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed heart condition manifested in service or within a year of separation therefrom, or is otherwise etiologically related to any aspect of active duty service. 5. Schedule the Veteran for a VA examination to explore the nature and etiology of her claimed sexual arousal disorder. The examiner is requested to furnish a precise diagnosis, and to opine as to whether that diagnosis at least as likely as not (a 50 percent or greater probability) manifested in service, or is otherwise etiologically related to any aspect of active duty service. If no diagnosis can be furnished, the examiner is requested to opine as to whether the Veteran’s symptoms, as she describes them, may constitute a component of a multisymptom undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. 6. Schedule the Veteran for a VA psychiatric examination to explore the nature and etiology of any diagnosed psychiatric disorders that may be present. The examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder manifested in service, or is otherwise etiologically related to any aspect of active duty service. 7. Schedule the Veteran for a VA examination to explore the nature and etiology of her headaches. The examiner is requested to furnish a diagnosis, if appropriate, to which the Veteran’s headache symptoms are attributable, and to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition manifested in service, or is otherwise etiologically related to any aspect of active duty service. If no diagnosis can be furnished, the examiner is requested to opine as to whether the Veteran’s headache symptoms, as she describes them, may constitute a component of a multisymptom undiagnosed illness associated with service in the Southwest Asia theater of operations during the Persian Gulf War. 8. Review the opinions and any examination reports to ensure that it they are in complete compliance with the directives of this remand. If any opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). (Continued on the next page)   9. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel