Citation Nr: 18154332 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-39 967 DATE: November 29, 2018 ORDER Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for chronic fatigue syndrome, to include as due to Persian Gulf War service is denied. Entitlement to service connection for a chronic liver condition, to include as due to Persian Gulf War service, is denied. Entitlement to service connection for carpal tunnel syndrome of the left wrist is denied. Entitlement to service connection for carpal tunnel syndrome of the right wrist is denied. REMANDED Entitlement to service connection for arthritis of the right knee is remanded. Entitlement to service connection for arthritis of the left knee is remanded. Entitlement to service condition for a skin condition of the left foot is remanded. Entitlement to service connection for a skin condition of the right foot is remanded. FINDINGS OF FACT 1. The record does not reflect a current diagnosis for a right wrist disability. 2. The record does not reflect a current diagnosis for a left wrist disability. 3. The record does not reflect a current diagnosis of bilateral hearing loss for VA purposes. 4. The Veteran’s tinnitus is etiologically linked to his in-service noise exposure. 5. The record does not reflect a current diagnosis for chronic fatigue syndrome, or a medically unexplained chronic multi-symptom illness related to fatigue. 6. The record does not reflect a current diagnosis for a chronic liver condition or a medically unexplained chronic multi-symptom illness related to his liver. 7. The record does not reflect a current diagnosis for carpal tunnel syndrome of the left wrist. 8. The record does not reflect a current diagnosis for carpal tunnel syndrome of the right wrist. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). 2. The criteria for service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a), 3.385 (2017). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a) (2017). 5. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a), 3.317; (2017). 6. The criteria for service connection for a chronic liver condition have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.303(a), 3.317 (2017). 7. The criteria for service connection for carpal tunnel syndrome of the left wrist have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). 8. The criteria for service connection for carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from May 1976 to September 1976 and from November 1990 to June 1991. The Veteran and his wife appeared at a hearing before the undersigned Veterans Law Judge in September 2017. A transcript of that hearing is of record. Service Connection Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a)(d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral carpal tunnel syndrome and bilateral wrist disabilities For the claims for bilateral carpal tunnel syndrome and a bilateral wrist disability, the Veteran testified at the September 2017 hearing that the claims are for the same disability. See Hearing Transcript at pg. 13. He also consented to have the four claims consolidated. Additionally, the Court has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the claims for service connection for carpal tunnel syndrome encompass the claims for service connection for wrist disabilities as well. In the case at hand, the record does not reflect a current diagnosis for any condition of either wrist, to include carpal tunnel syndrome. The Veteran testified at the September 2017 hearing that he wrapped wire and drove trucks in service, which he believes is the cause of his wrist symptoms. However, the Veteran was afforded a VA examination for peripheral nerve conditions in August 2013. The examiner noted the Veteran’s reports of bilateral hand pain and numbness starting in 1992 or 1993. The examiner also noted that the Veteran’s primary care physician told him that his symptoms were carpal tunnel syndrome. However, the examiner stated that the symptoms appear to come and go periodically and are not consistent with carpal tunnel syndrome. Examiners are presumed competent to render the reports and opinions they provide. See Sickels v. Shinseki, 643 F.3d 1362 (Fed.Cir.2011). Further, VA medical examiners are presumed competent in the absence of evidence to the contrary. Rizzo v. Shinseki, 580 F.3d 1288 (Fed.Cir.2009). As the record does not present evidence that the examination was not adequate or competent, the Board finds the VA examiner’s assessment probative. Nor is there any other medical evidence of record indicating a current diagnosis for carpal tunnel syndrome or any other disability of the wrist. As such, the record does not support that the Veteran has a current diagnosis for a wrist disability, to include carpal tunnel syndrome. While the Veteran has noted persistent symptoms, the Veteran’s reported symptoms of pain and numbness of the wrist have been assessed by a medical examiner (August 2013 VA examination), and a diagnosis was not rendered. A current diagnosis is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lacking a current diagnosis, service connection cannot be established. Accordingly, the appeals for service connection for bilateral carpal tunnel syndrome and bilateral wrist disabilities must be denied. 2. Entitlement to service connection for bilateral hearing loss Regarding 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). The Veteran contends that he has bilateral hearing loss as a result of noise exposure in service. A post-service VA audiological evaluation conducted in August 2013 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 10 LEFT 5 5 5 15 20 Maryland CNC speech discrimination scores were 98 percent for the right ear and 96 percent for the left ear. The VA examiner indicated a diagnosis of normal hearing for both ears. These audiological results do not indicate a hearing loss disability for VA disability compensation purposes in either ear during the current appeal period. 38 C.F.R. § 3.385. Nor are there any other audiological results of record to indicate that the Veteran had a diagnosis for bilateral hearing loss for VA purposes. As discussed, a current diagnosis is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. at 225. As a diagnosis of hearing loss (for either ear) has not been established, service connection for bilateral hearing loss is not warranted. 3. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus due to in-service noise exposure. The August 2013 VA audio examiner indicated that the Veteran has recurrent tinnitus. As such, a current diagnosis is established. Regarding an in-inservice incurrence, the Veteran has linked his tinnitus to noise exposure sustained from his military occupation specialties (MOS); he wrapped wire as well as drove trucks. His DD 214 also reflects a MOS as a truck driver. The August 2013 VA examiner noted the Veteran’s MOS of wireman in the Army National Guard and stated that it is not listed on the Duty MOS Noise Exposure Listing (FAST LETTER 10-35). The examiner stated that an analogous MOS is for Field Wireman in the USMC communications category, which has a moderate probability of noise exposure. The examiner also stated that the Veteran’s MOS of Motor Transport Operator in the Army also indicates a moderate probability of noise exposure. As the examiner acknowledges a probability of noise exposure for each of the Veteran’s MOS, the Board concedes an in-service incurrence. Therefore, the remaining issue is a nexus. The VA examiner provided a negative nexus opinion and reasoned that an October 1994 audiogram shows puretone thresholds within normal limits bilaterally with no significant degradation when compared with previous audiograms. The examiner reasoned that therefore, there is no evidence of noise injury based on the Veteran’s military audiograms. However, this opinion is not adequate as it is improperly predicated on a lack of documentation in the medical record. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Additionally, following this examination, the Veteran testified at the September 2017 hearing that he experienced ringing in the ears after driving trucks in service. The Board finds the Veteran’s lay statements sufficient to indicate a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Having experienced ringing in the ears following noise exposure and thereby linking the ringing in the ears to noise exposure does not require medical knowledge or training. Accordingly, a nexus is established, and the appeal for service connection for tinnitus is granted. Gulf War Syndrome With regard to the Veteran’s remaining claims for service connection for chronic fatigue syndrome and a chronic liver condition related to his time serving in the Gulf War, under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic 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, and menstrual disorders. 38 U.S.C. § 1117(g); 38 C.F.R. §3.317(b). The chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317(a)(1)(ii). Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016. See 76 Fed. Reg. 81,834, 81,836 (2012). 4. Entitlement to service connection for chronic fatigue syndrome The claim for service connection for chronic fatigue syndrome must also be denied as the record does not reflect a current diagnosis. The Veteran testified at the September 2017 hearing that he noticed fatigue in service when he would sit down and usually fall asleep. The Veteran’s wife testified that she noticed it more when the Veteran returned home from Iraq. The Veteran stated that he told a VA doctor about it about three years prior. He said he was put on a CPAP machine to see if it would help, but it does not help. The Veteran also stated that he believes he has been diagnosed with chronic fatigue syndrome but is not sure. His wife testified that she believes some of the fatigue comes from the fact that he does not sleep well at night. She stated that the Veteran typically sleeps 3-4 hours. In August 2013, the Veteran was afforded a Gulf War examination. The examiner noted the Veteran’s reports of fatigue. Specifically, the examiner noted the Veteran’s statements that he sleeps only about four hours per night and is tired at the end of the day. However, the examiner indicated that the Veteran does not fit the criteria for chronic fatigue syndrome. The examiner stated that the Veteran’s poor sleep habits could possibly be related to his post-traumatic stress disorder (PTSD) and/or his sleep apnea condition. As the record does not present evidence that the examination was not adequate or competent, the Board finds the VA examiner’s assessment probative. See Sickels v. Shinseki, 643 F.3d at 1362; Rizzo v. Shinseki, 580 F.3d at 1288. Nor is there any other medical evidence of record providing a diagnosis for chronic fatigue syndrome. As noted, lacking a current diagnosis, service connection cannot be established. Brammer v. Derwinski. Nor is service connection for an undiagnosed illness related to the Veteran’s Gulf War service warranted. There is no evidence of a chronic condition of fatigue that constitutes a medically unexplained chronic multi symptom illness. His fatigue has been attributed to his psychiatric condition. Specifically, the Veteran essentially testified at the September 2017 hearing that his fatigue manifests as sleep issues. He also testified that he is seeing a psychiatrist for his fatigue. As such, the undersigned Judge noted at the hearing that there is no current diagnosis of record and that the Veteran may wish to include fatigue as a symptom of his claim for a psychiatric condition. The Veteran has since been service connected for a psychiatric condition, PTSD, and sleep disturbance is listed as a symptom. See October 2017 PTSD Disability Benefits Questionnaire. As such, the Veteran’s fatigue is linked to a clinical (psychiatric) diagnosis. See 38 C.F.R. § 3.317(a)(1)(ii). Additionally, he is already being compensated for the symptoms he has claimed as fatigue. Service connection for this symptom would therefore result in pyramiding in violation of 38 C.F.R. § 4.14 as a Veteran may not be compensated for the same symptom more than once. Thus, in light of the evidence, the claim must be denied. 5. Entitlement to service connection for a chronic liver condition Service connection for a chronic liver condition must also be denied as the record does not reflect a current diagnosis. The Veteran testified at the September 2017 hearing that he was diagnosed with liver disease three years prior. He testified that he did not experience any liver condition while he was in service. His wife stated that he was not aware of any liver condition before. The Veteran’s representative inquired whether a doctor has indicated that the liver condition was due to his exposure to burn pits or anything in service, and the Veteran replied no. He also stated that he did not ask. The undersigned Judge noted that there is no diagnosis of record. The undersigned Judge also noted that abnormal lab findings are not a disability for VA purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities; they are, therefore, not appropriate entities for the rating schedule.). The Veteran was afforded a VA examination for liver conditions in August 2013, and the examiner indicated that the Veteran does not have a current liver condition. The examiner noted the Veteran’s elevated lab results regarding his liver. The examiner noted that the Veteran had a knee replacement that year and that in preparation for this surgery, pre-operative bloodwork showed elevated liver enyzmes. The examiner noted that the surgery was done. The examiner indicated that no reports were currently available and that the Veteran had no further follow up bloodwork since the surgery. The examiner also indicated that the Veteran is not aware of having any ongoing liver problems. As the record does not present evidence that the examination was not adequate or competent, the Board finds the VA examiner’s assessment probative. Sickels v. Shinseki; Rizzo v. Shinseki. As such, the Board finds that the record does not reflect a current diagnosis for a liver condition. As discussed, lacking a current diagnosis, service connection cannot be established. Brammer v. Derwinski. Nor is service connection for an undiagnosed illness related to the Veteran’s Gulf War service warranted for a chronic liver condition. There is no evidence of a liver disorder that constitutes a medically unexplained chronic multi symptom illness as the Veteran has no symptoms of a liver condition. See 38 U.S.C. § 1117(a)(1). Thus, in light of the evidence, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee arthritis is remanded. The Veteran seeks service connection for bilateral knee arthritis. At the September 2017 hearing, he testified that he believes his arthritis is related to his truck driving in service, to include climbing in and out of the truck as well as unloading it. The record reflects a current diagnosis for arthritis of the knees. As noted, the Veteran’s MOS as a truck driver is also reflected in his DD-214. However, the record is not sufficient to grant the claim as there is no medical opinion of record linking the Veteran’s arthritis to his service. The Board acknowledges the presumption of service connection for chronic conditions under 38 C.F.R. § 3.309(a). The Board notes that the presumption regarding chronic disease is not applicable to periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010) (discussing the presumption regarding chronic diseases and stating that “a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection”). Yet, remand is necessary for a VA examination. The Veteran has a current diagnosis. Having linked the condition to his in-service MOS, the record also suggests an in-service incurrence and association to the Veteran’s service. As such, the Board finds that VA’s duty to assist has been triggered, and the Veteran should be afforded a VA examination to assess the nature and etiology of his bilateral knee arthritis. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service condition for a skin condition of the feet is remanded. Further development is also necessary prior to adjudicating the claims for service connection for right and left foot skin conditions. The record does not reflect a current diagnosis for a skin condition of the right or left foot. However, an August 2015 treatment note from Goose Creek CBOC reflects that the Veteran has plantar scaling. Goose Creek records also reflect that the Veteran is prescribed medication for fungus of the foot. He testified at the September 2017 hearing that he noticed the scales in 1991 when he returned home from Saudi Arabia and that they have been persistent since. He also testified that he has been given medication for this condition. Given the medical evidence and the Veteran’s lay statements, the Board finds that the record reflects persistent or recurrent symptoms of a skin condition of the foot (scales). However, remand is necessary to confirm whether the Veteran has a current diagnosis, and, if so, to obtain an opinion as to the etiology of the condition. The Veteran has not been afforded a VA examination for this condition. As discussed above, the record reflects persistent or recurrent symptoms of a skin condition of the feet. Additionally, the Veteran’s statements that the scales appeared when he returned from Saudi Arabia are sufficient to suggest they may have been incurred in Saudi Arabia, which suggests an association to service. As such, the Board finds that VA’s duty to assist has been triggered. See McClendon v. Nicholson, 20 Vet. App. at 79; 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his bilateral knee arthritis. For each claim remanded, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. Regarding the Veteran’s bilateral knee arthritis, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition was incurred during or is otherwise related to the Veteran’s service. Importantly, the examiner must consider the Veteran’s lay statements of climbing in and out of as well as unloading trucks in service. 2. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of any current diagnosed foot skin condition. i) Initially, the examiner is asked to indicate whether the Veteran has a current diagnosis for a skin condition of the right or left foot. ii) For any diagnosed skin condition of the feet, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition was incurred during or is otherwise related to the Veteran’s service. Importantly, the examiner must consider the Veteran’s lay statements that he noticed scales on his feet in 1991 when he returned from Saudi Arabia. 3. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel