Citation Nr: 18154523 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-18 191 DATE: November 30, 2018 ORDER Entitlement to service connection for a sleep disorder is denied. Entitlement to service connection for gastritis is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for inflammatory bowel disease, specifically ulcerative colitis (UC), is denied. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a psychiatric disorder, to include depression and anxiety disorder, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The weight of the evidence does not show that the Veteran has a current diagnosis of a sleep disorder that was incurred in, or resulted from, service, to include as caused by, or related to, exposure to environmental hazards. 2. The weight of the evidence does not show that the Veteran has a current diagnosis of gastritis that was incurred in, or resulted from, service, to include as caused by or related to exposure to environmental hazards. 3. The Veteran’s service-connected tinnitus is assigned a 10 percent initial rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code (DC) 6206, for either a unilateral or bilateral disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria to establish service connection for gastritis are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. For the entirety of the appeal period, the criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard with active duty from May 1984 to September 1984, from January 1991 to June 1991, from June 1992 to December 1992, and from February 1993 to May 1993. He served in Southwest Asia, specifically Saudi Arabia, from February 1991 to June 1991. These claims were previously remanded by the Board in February 2017. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The United States Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Personnel records reflect that the Veteran in this case was stationed in Saudi Arabia from February 1991 to June 1991. Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from an 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 31, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times, and currently ends December 21, 2021. See 81 Fed. Reg. 71382 (October 17, 2016). A qualifying chronic disability means a chronic disability resulting from (A) an undiagnosed illness or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317(a)(2)(i). The term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Examples of medically unexplained chronic multi-system illness that are defined by a cluster of signs or symptoms include: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases), such as irritable bowel syndrome. Id. Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a sleep disorder The Veteran contends that service connection is warranted for a sleep disorder. Based on a review of the evidence of record, the Board finds that the evidence weighs against findings in favor of the Veteran’s service connection claim for a sleep disorder as there is no evidence of a current diagnosis of such. In this case, VA treatment records reflect that in November 2013, the Veteran noted poor sleep due to frequent bowel movements and jitteriness from alcohol withdrawal. There is no indication of a separate diagnosis of a sleep disorder. Service connection under any theory requires a current diagnosis or disability. While the Veteran filed a claim for a sleep disorder, the evidence does not reflect a current diagnosis of such. See Brammer, 3 Vet. App. at 225. Rather, it appears that the Veteran’s difficulty sleeping is due to non service-connected alcohol withdrawal and the frequency of his bowel movements. The Board considered the lay evidence in this case. As a layperson, the Veteran is competent to report matters within his own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, he is competent to report symptoms, such as difficulty sleeping. However, he is not competent to provide a clinical diagnosis of a sleep disorder, as such a determination is medical in nature and requires medical expertise to make, and there is no evidence that the Veteran has such medical training. Thus, the Veteran has not presented competent evidence showing that he has a current diagnosis of a sleep disorder. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). Additionally, as the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, the Board must consider whether he is entitled to presumptive service connection under 38 C.F.R. § 3.317. The evidence does not demonstrate that the Veteran has an undiagnosed illness, but rather that the Veteran’s difficulty sleeping is related to other issues, such as alcohol withdrawal and frequent bowel movements. Moreover, a July 2018 VA Gulf War examination report reflects that the Veteran did not have any diagnosed illnesses for which no etiology was established, and that the Veteran did not report any additional signs or symptoms which may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness.” In summary, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for a sleep disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for gastritis In his May 2013 claims application, the Veteran contended that he was exposed to environmental hazards in the Gulf War. He also reported constant stomach problems for the past 20 years after returning from the Gulf War. Based on a review of the evidence of record, the Board finds that the evidence weighs against findings in favor of the Veteran’s service connection claim for gastritis as there is no evidence of a current diagnosis of such. In this case, a January 2014 VA Gulf War examiner opined that the Veteran’s claimed gastritis was less likely than not related to environmental exposure from the Gulf War, as gastritis was most commonly related to mucosal irritation secondary to food, drink, and medication. As such, the repeated use of aspirin and alcohol was more likely the source of the Veteran’s stomach disorder. At a July 2018 VA examination, the Veteran reported that he had gastritis in the 1990s. However, the examiner found that the Veteran’s gastritis had resolved, which was confirmed by tests and a negative upper gastrointestinal study. The examiner noted that the Veteran got “stomach discomfort/gastritis” when he drank very heavily, which was a chemical-induced mucosa injury from alcohol binge drinking. However, the Veteran had stopped drinking alcohol, and no longer had gastritis. Rather, the examiner found that the Veteran’s current symptoms were due to UC, which is being remanded below. Service connection under any theory requires a current diagnosis or disability. While the Veteran reported a diagnosis of gastritis, the evidence does not reflect a current diagnosis of such. See Brammer, 3 Vet. App. at 225. Rather, it appears that the Veteran had gastritis related to his alcohol consumption, which has since resolved once the Veteran stopped consuming alcohol. The Board considered the lay evidence in this case. As a layperson, the Veteran is competent to report matters within his own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, he is competent to report symptoms, such as pain, diarrhea, and blood in his stool. However, he is not competent to provide a clinical diagnosis of gastritis, as such a determination is medical in nature and requires medical expertise to make, and there is no evidence that the Veteran has such medical training. Thus, the Veteran has not presented competent evidence showing that he has a current diagnosis of gastritis. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). Additionally, as the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, the Board must consider whether he is entitled to presumptive service connection under 38 C.F.R. § 3.317. The evidence does not demonstrate that the Veteran has an undiagnosed illness, but rather that the Veteran has UC. Moreover, a July 2018 VA Gulf War examination report reflects that the Veteran did not have any diagnosed illnesses for which no etiology was established, and that the Veteran did not report any additional signs or symptoms which may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness.” In summary, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for gastritis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Higher Rating Claim 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 3. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran contends that a higher initial rating for tinnitus is warranted. Throughout the entire period on appeal, the Veteran has been in receipt of a 10 percent disability rating for tinnitus under 38 C.F.R. § 4.87, DC 6260. Under DC 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating for tinnitus under DC 6260 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for an initial rating in excess of 10 percent for tinnitus must be denied. See Sabonis v. Brown, 9 Vet. App. 426, 430 (1994). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for inflammatory bowel disease, specifically UC, is remanded. The claim for service connection for an inflammatory bowel disease is remanded for a new VA examination. The Board acknowledges that the Veteran was diagnosed with UC since 2013. He was provided a VA examination in July 2018, at which time the VA examiner stated that the Veteran’s current gastrointestinal symptoms were due to UC. However, the examiner also noted that a 2016 VA treatment record reflected that the Veteran’s symptoms were caused by diverticulitis, which occurred every three months. Although the examiner opined that the Veteran’s UC was not related to service, to include exposure to environmental hazards, no opinion was provided regarding the Veteran’s diverticulitis, which was described as recurrent. As such, a new VA examination is required in order to clarify whether the Veteran’s current gastrointestinal symptoms are related to his UC or his diverticulitis, and to provide an opinion for both diagnoses. Issues 2-3: Entitlement to service connection for right and left knee disorders is remanded. The claims for service connection for right and left knee disorders are remanded for an addendum opinion. The Board acknowledges that the Veteran was diagnosed with right knee strain with degenerative joint disease and left knee strain. He was provided a VA examination in January 2014, at which time the VA examiner opined that the Veteran’s bilateral knee disorders were less likely than not related to environmental exposure during the Gulf War, but rather were related to wear-and-tear or injury to the joint or muscle. However, the examiner did not address the Veteran’s report of an onset of bilateral knee symptoms within six months after returning from deployment. As such, an addendum opinion is required in order to clarify whether the Veteran’s current bilateral knee disorders are related to service, or manifested within one year from separation from service. 4. Entitlement to service connection for headaches is remanded. The claim for service connection for headaches is remanded for a new VA examination. The Veteran was diagnosed with tension headaches at his January 2014 VA examination. The VA examiner noted the Veteran’s report of onset while deployed in Saudi Arabia, and of continued headaches upon his return. The examiner then opined that the Veteran’s headaches were less likely than not related to exposure to environmental hazards, but stated that combat zone physical and mental stress more likely contributed to the onset of headaches during service. However, the examiner then provided numerous factors that were related to the Veteran’s continued recurrence of headaches, but failed to provide an opinion as to whether the Veteran’s current headaches were at least as likely as not related to his in-service headaches. As such, a new VA examination is required in order to clarify the etiology of the Veteran’s current headaches. 5. Entitlement to a psychiatric disorder, to include depression and anxiety disorder, is remanded. The claim for service connection for a psychiatric disorder is remanded for a new VA examination. The Veteran was diagnosed with other specified anxiety disorder at his January 2014 VA examination, and his VA treatment records reflect a diagnosis of generalized anxiety disorder. At the January 2014 VA examination, the Veteran reported onset upon returning from deployment. However, the examiner only noted several psychosocial stressors, including his gastrointestinal problems, but failed to provide an opinion. As such, a new VA examination is required in order to clarify whether the Veteran’s current psychiatric disorder is related to service, to include exposure to environmental hazards, or to his gastrointestinal disorder. 6. Entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with the claims remanded herein, and the adjudication of this claim may depend on the outcome of the other remanded claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s inflammatory bowel disease, specifically UC. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *The May 2013 claims application in which the Veteran contended that he was exposed to environmental hazards in the Gulf War. *VA treatment records reflecting hospitalizations due to UC in November and December 2013. *A January 2014 VA Gulf War examination report. *VA treatment records from January 2015 to January 2017 reflecting hospitalizations for UC flares due to stress, diarrhea due to stress, and diverticulitis. *A July 2018 VA examination report reflecting that the Veteran’s current symptoms were due to UC. *A July 2018 VA intestinal condition examination report indicating that the Veteran’s symptoms were caused by diverticulitis. *A July 2018 VA Gulf War examination report, which includes the examiner’s opinions. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Whether the Veteran’s current gastrointestinal symptoms were due to his UC and/or his diverticulitis. b) For each diagnosis, whether it at least as likely as not had an onset during active service or are otherwise related to it, to include exposure to environmental hazards in the Persian Gulf. A complete rationale should be provided for any opinion provided. 2. Obtain an addendum from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed right and left knee disorders. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result. Although a complete review of the record is imperative, attention is called to the following: *The May 2013 claims application in which the Veteran contended that he was exposed to environmental hazards in the Gulf War. *A November 2013 VA treatment record reflecting the Veteran’s complaint of mild joint soreness in his bilateral knees. *January 2014 VA Gulf War and knee examination reports. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: Whether it is at least as likely as not that the Veteran’s right and left knee disorders were incurred in or related to active duty service, to include exposure to environmental hazards, or manifested within one year from separation from service. *The examiner should consider and discuss the Veteran’s report of an onset within six months after returning from deployment, and the use of Tylenol and aspirin for 22 years.* A complete rationale should be provided for any opinion provided. 3. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s claimed headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *The May 2013 claims application in which the Veteran contended that he was exposed to environmental hazards in the Gulf War. *A January 2014 VA examination report reflecting a diagnosis of tension headaches, and the Veteran’s report of onset during service and continued headaches. *A May 2017 VA treatment record reflecting alcohol withdrawal symptoms, including mild headache. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: Provide an opinion as to whether it at least as likely as not had an onset during active service or are otherwise related to it, to include exposure to environmental hazards in the Persian Gulf. *The examiner should consider and discuss the Veteran’s report of an onset during deployment.* A complete rationale should be provided for any opinion provided. 4. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *The May 2013 claims application in which the Veteran contended that he was exposed to environmental hazards in the Gulf War. *A November 2013 VA treatment record reflecting an assessment of alcohol use disorder and depression. *A January 2014 VA examination report reflecting diagnoses of alcohol use disorder in early remission and other specified anxiety disorder; the Veteran’s report of onset after returning from the Gulf War; and the examiner’s notation of several psychosocial stressors, including the Veteran’s gastrointestinal disorders. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Confirm the Veteran’s current psychiatric diagnoses. b) For each diagnosis, provide an opinion as to whether it at least as likely as not had an onset during active service or are otherwise related to it, to include exposure to environmental hazards in the Persian Gulf. c) For each diagnosis, provide an opinion as to whether it at least as likely as not is caused by, aggravated by, or otherwise related to his gastrointestinal disorder. (Continued on the next page)   A complete rationale should be provided for any opinion provided. 5. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee