Citation Nr: 18157789 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-60 194 DATE: December 13, 2018 ORDER 1. Entitlement to service connection for chronic diarrhea, to include as due to an undiagnosed illness, is denied. 2. Entitlement to service connection for muscle and bone pain in the left leg, to include as due to an undiagnosed illness, is denied. 3. Service connection for asthma is granted. 4. Entitlement to service connection for a psychiatric disability is denied. REMANDED 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have a disability manifested by chronic diarrhea (diagnosed or “undiagnosed”). 2. The Veteran’s chronic muscle and bone pain in the left leg is not shown to be a manifestation of an “undiagnosed” illness, and is not shown to be etiologically related to his service. 3. Competent medical evidence establishes that the Veteran’s asthma became manifest in (was incurred and diagnosed during) active service. 4. An acquired psychiatric disability was not manifested in service; the Veteran’s alcohol abuse during service was not a manifestation of a psychiatric disability acquired therein; a psychosis was not manifested within one year after the Veteran’s separation from service; and any current psychiatric disability is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for chronic diarrhea is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. 2. Service connection for a left leg muscle and bone pain disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 3. Service connection for asthma is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The Veteran’s alcohol abuse in service is not a compensable disability; service connection for a psychiatric disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1989 to January 1993. These matters are before the Board on appeal from March 2013 and August 2015 rating decisions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish in-service incurrence of an observable medical condition, injury, or event. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include arthritis and psychoses), may be service connected on a presumptive basis if manifested to a compensable degree within a specified time period postservice (one year for arthritis or psychosis). 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), a nexus to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf Era, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The claims file includes a February 2013 memorandum with a formal finding on a lack of information required with a claim for service connection due to environmental hazards in Southwest Asia. It was noted that a response from National Personnel Records Center showed that there is no evidence to show that the Veteran served in Southwest Asia. Therefore, the Veteran is not entitled to service connection on a presumptive basis for a qualifying chronic disability under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 1. Entitlement to service connection for chronic diarrhea is denied. The Veteran contends that he has a disability manifested by chronic diarrhea that began during service, in January 1993. In July 1990, prior to his deployment, he was seen for multiple episodes of diarrhea in one day with mild nausea and vomiting; the assessment was gastroenteritis. In January 1991, prior to his deployment, he complained of nausea, vomiting, and diarrhea for three days; the assessment was a viral infection of unknown etiology vs. gastroenteritis, and the condition resolved within less than a week. The remaining STRs are silent for any complaints of diarrhea. On May and September 1992 service separation examinations, the abdomen, viscera, anus and rectum were normal on clinical evaluation. On December 2005 VA treatment, the Veteran reported a 4 to 5 day history of upset stomach and loose stools. On February 2008 VA treatment, he reported having 3 to 4 days of diarrhea a couple of weeks prior. On April 2009 VA treatment, he reported chronic diarrhea. On May 2009 colonoscopy, he noted a 2 to 3 year history of diarrhea. On May 2010 VA treatment, he reported having chronic diarrhea and occasional nausea; the impressions included chronic diarrhea and it was noted that his evaluation for inflammatory bowel disease and celiac disease was negative. On November 2016 VA Gulf War general medical examination, the Veteran reported the onset of loose bowels and diarrhea symptoms in 2003/2004. The examiner noted complaints on August 2006 treatment of abdominal pain and gastroenteritis; and in May 2010 “chronic diarrhea” was included in the problem list. The Veteran was noted to have had normal lab results in October 2016. He had not undergone a thorough workup for his reported chronic diarrhea. The examiner reviewed the most current treatment records which show a denial of symptoms of diarrhea over the previous year; therefore, there was no support in the record of a lower bowel problem at that time. The examiner noted that the Veteran first reported such issues over 10 years after being on a ship during Operation Desert Storm, and opined that it is unlikely for a lower gastrointestinal after such exposure. The examiner opined that there are no gastrointestinal toxins that he knows of that have a 10 year latency between exposure and symptoms. The examiner further opined that the records do not support chronic diarrhea since 1991; the Veteran denied having any gastrointestinal issues on separation, and there was no mention of any issues with diarrhea until 2005. Following a physical examination, there was no diagnosis of an intestinal condition. The examiner opined that the bowel symptoms would not fit the Gulf War Syndrome spectrum of disorders. The examiner opined that the claimed lower gastrointestinal condition was less likely than not (less than 50% probability) incurred in or caused by service. The examiner noted that the Veteran had self-limited bouts of acute gastroenteritis while in service, with the records not supporting a chronic disability through the years resulting from those self-limited episodes. Additional VA and private treatment records are silent for any complaint, finding, treatment, or diagnosis of a disability manifested by chronic diarrhea. It is not in dispute that during service the Veteran was treated for diarrhea. He was also treated for some acute complaints regarding diarrhea postservice, with reports of chronic diarrhea. However, the complaints during service were acute and resolved; they were not noted on service separation examination (the postservice complaints also appear to have resolved). The threshold matter that must be addressed is whether the Veteran now has (during the pendency of the instant claim has had) a chronic disability manifested by diarrhea. No examination or treatment record during the pendency of the instant claim shows/has revealed a chronic disability manifested by diarrhea (and the Veteran has not identified any medical provider who during the pendency of the instant claim has diagnosed, or made findings reflective of, a chronic diarrhea disability. Accordingly, the Veteran has not presented as valid claim of service connection for such disability, and the appeal in this matter must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). 2. Entitlement to service connection for muscle and bone pain in the left leg is denied. The Veteran contends that he has a left leg muscle and bone pain disability that began during service. His STRs are silent for any complaints, findings, treatment, or diagnosis of a chronic disability manifested by muscle and bone pain in the left leg. On September 1992 service separation examination, the lower extremities were normal on clinical evaluation. In October 1992 he reported left leg weakness on walking 1 ½ miles. The Veteran’s postservice treatment records are silent regarding the left leg until August 2006, when he complained of his joints aching for the previous 3 to 4 months. On October 2007 VA treatment, he reported a 1 to 2 year history of joint aches. In May 2008, he was noted to have been in a motor vehicle accident earlier that month. On April 2009 VA treatment, he complained of lower extremity weakness, with no specific joint mentioned. On April 2011 VA treatment, he reported bilateral leg pain and possible claudication was noted. On October 2012 VA knee and lower leg examination, there was no diagnosis of a left lower extremity disability. On May 2015 VA knee and lower leg examination, the Veteran reported having problems in both knees since the 2012 examination, with intermittent symptoms of dull achiness, stiffness and soreness after a long day on his feet, or with riding in a car for prolonged periods of time. Imaging studies showed arthritis in both knees. Following a physical examination, the diagnoses included right tibial plateau stress reaction, resolved, and patella-femoral degenerative arthritis-patellofemoral pain syndrome, not service related. The examiner opined that the Veteran’s current complaints are consistent with degenerative changes found on the knee X-rays; the examiner opined that these changes are consistent with a person who has had a sedentary lifestyle throughout his life and should be considered part of the natural aging process, not from a one-time injury 26 years ago. [Residuals of a right tibial plateau stress fracture are service connected.] On November 2016 VA Gulf War general medical examination, the Veteran reported constant pain from his knees to his feet for the previous 15 years, ranging from a dull ache to a moderate to severe pain level, since 1999/2000. It was noted that he had a history of alcohol abuse since the 1980s; that he reportedly quit drinking in 1992; and that his leg pain symptoms began 7 years later. The examiner opined that the claimed leg pain was less likely than not (less than 50% probability) incurred in or caused by service, noting that there is no record of any symptoms consistent with the present complaints in the left leg in the STRs. The examiner noted the Veteran’s long history of alcohol abuse and the reported onset of leg pains in 1999, only 7 years after he quit drinking in 1992. The examiner opined that the most likely reason for the leg pain is the history of alcohol abuse that began prior to entering the service. The Veteran is not shown to have a chronic disability manifested by left leg muscle and bone pain, to include as due to undiagnosed illness. He has a diagnosis of patella-femoral degenerative arthritis patellofemoral pain syndrome (a known clinical diagnosis). The Board finds that the service and postservice evaluation and treatment records, overall, provide evidence against this claim, indicating that the Veteran’s current claimed left leg pain is not related to his service. Left lower extremity arthritis was not manifested in service or during the first postservice year, or for many years thereafter. Accordingly, service connection for left leg muscle and bone pain on the basis that such disability became manifest in service, or on a presumptive basis for arthritis (as a chronic disease under 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309) is not warranted. The more probative evidence in the record is against a finding that any current left leg muscle and bone pain was incurred in or caused by the Veteran’s active service. VA providers have opined that the diagnosed disorder had its onset a number of years after service, and is unrelated to service. Regarding the Veteran’s contention that his claimed left leg muscle and bone pain is related to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the cause of, his musculoskeletal disability. That is a medical question beyond the realm of common knowledge and incapable of resolution by lay observation. The Veteran has not provided supporting medical opinion or medical treatise evidence; does not cite to supporting factual data; and does not provide an explanation for his opinion that his condition is related to his military service. Therefore, his lay opinion cannot be assigned any significant probative value. While a layperson is qualified to testify about observable matters (see Davidson, supra), the cause of a musculoskeletal disability (without evidence of a related injury or continuity from a precipitating event or injury) is a question beyond the scope of common knowledge or lay observation. It requires medical training and expertise (see Jandreau, supra). Accordingly, the Board concludes that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. 3. Entitlement to service connection for asthma is granted. The Veteran contends, in essence, that he has asthma that had its onset in service and has persisted since. The evidence of record, including VA and private treatment records, VA examination, and lay statements, shows that he has a current diagnosis of asthma. The Veteran’s STRs show an initial diagnosis of, and treatment for, asthma. On his April 1989 service enlistment exam, he reported having sinusitis and once to twice yearly nasal congestion but denied any history of asthma. In November 1989, he was noted to have sinus issues but not asthma, and reported a 15-year history of smoking. He was seen several times in 1990 for bronchitis due to smoking, including in September 1990 when he was noted to have bronchitis and sinus problems. On a December 1991 pulmonary consult, he was noted to have had multiple episodes of upper respiratory infections/bronchitis since his entrance into service, and the assessment was asthma vs. COPD. A pulmonary function test report in January 1992 notes he had a one-year history of asthma. Subsequent STRs through separation from service reflect treatment for asthma. On September 1998 VA treatment, the Veteran reported difficulty finding work because of inadequate asthma control; he reported having asthma “dating back to Persian Gulf service in 1991”. On May 2004 VA treatment, he was felt to have either asthma or bronchitis due to smoking. Additional postservice treatment records reflect treatment for asthma. On October 2012 VA examination, the Veteran reported that he served on an aircraft carrier during Operation Desert Storm. He reported that he “went to decom and was respirator certified and was told he had asthma”, and he did not know he had asthma until that time because he had no symptoms. He reported that he did not recall having any problems or symptoms at the time, and the testing was performed on everyone. He reported that he was placed on inhalers and had been using them ever since. On examination, he reported having shortness of breath which was alleviated by the inhalers when he used them. He reported having no asthma exacerbations over the previous year; the last time he had to seek emergency room treatment for asthma was in 1997, at which time, he believes, he started using regular inhalers. Following a physical examination, the diagnosis was COPD, with a date of diagnosis of 2012. The examiner opined that the claimed respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner noted that the Veteran had episodic bouts of bronchitis before service and also during service before he was deployed to the Persian Gulf. The examiner opined that the COPD continued and progressed due to his continued smoking, not due to the sporadic episodes of bronchitis in service. There is ample documentation that the Veteran’s asthma was first diagnosed in service and has continued since. The Board notes a VA examiner’s opinion that the Veteran’s current COPD is unrelated to his service. However, the examiner did not address that asthma was initially diagnosed during service and has persisted since. The Veteran has submitted lay statements supporting that his asthma was first manifested in service; the Board finds the statements highly credible as they correlate with reports and findings noted contemporaneously in service and thereafter. VA and private treatment providers have diagnosed asthma. The evidence shows that the Veteran has chronic asthma that became manifest in service and, as shown by VA treatment records, credible lay testimony, and VA diagnosis, has persisted. All the requirements for establishing service connection are met; service connection for asthma is warranted. 4. Entitlement to service connection for a psychiatric disability is denied. The Veteran contends that he has a psychiatric disability that is related to his service; specifically, he contends that he has memory problems and depression that began during service. In April 1991, he was noted to have incurred an alcohol related injury and sought alcohol treatment; he was noted to have received a DWI after hitting a parked car in 1984, and he had once lost a job due to drinking; the assessment was episodic alcohol abuse. On May 1991 alcohol dependency screening, the assessment was psychological dependence for alcohol. His service personnel records reflect that in May 1992, deficiencies in his performance and/or conduct were identified to include drunk driving and a pattern of misconduct as evidenced by three or more punishments under the U.C.M.J. His STRs are otherwise silent for any complaints, findings, treatment, or diagnosis of a psychiatric disability. On September 1992 service separation examination, psychiatric findings were normal on clinical evaluation; on contemporaneous report of medical history, he denied any history of depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. His service personnel records reflect that in December 1992, he understood that he had been approved for separation by reason of misconduct/unsuitability and that prior to separation, he had the right to elect in-patient treatment for rehabilitation due to alcohol dependency prior to discharge; he elected to participate in such a program. Postservice, VA treatment records note normal psychiatric screenings until November 1997, when he was seen for alcohol dependence in remission; he was noted to have a history of three DUI arrests/citations. VA treatment records from July 2004 reflect treatment for depression and anxiety. He was admitted for depression treatment from June 2010 to September 2010. In July 2011, he was seen for reported impairment in areas of attention and memory, with unknown etiology. On November 2016 VA examination, the Veteran reported that he saw combat in Operations Desert Shield and Desert Storm. He reported that during service he was “busted in rank” several times for alcohol; his rank at discharge was E-1 after 4 years of service. He reported receiving alcohol treatment in 1992 prior to discharge and he denied drinking since that time. He had not sought counseling after service but had medication prescribed for depression, and in 2010 was hospitalized for depression. He reported that his most distressing symptom was depression which he had experienced since the Navy and his heavy drinking at that time. Following a mental status examination, the diagnosis was major depressive disorder. In a December 2016 addendum opinion, the examiner noted the Veteran’s contention that his treatment for alcohol abuse during service was a symptom of depression. The examiner opined that it is less likely than not that the Veteran’s military service was responsible for his alcoholism as he has a prior history of drinking in high school. The examiner stated that it would be resorting to mere speculation as to whether or not his alcoholism contributed to his depression or vice versa. The examiner noted that alcoholism is known to contribute to depression and that the Veteran’s drinking began in high school prior to his military service and opined that, therefore, it is less likely than not that his depression and/or alcoholism are related to his military service. Additional VA treatment records include assessments of anxiety disorder and major depressive disorder with no further opinion offered regarding etiology. At the outset the Board notes that the Veteran’s alcohol abuse in service is not shown to have been a manifestation of a psychiatric disability acquired therein, and is not a compensable disability. 38 U.S.C. § 1110. An acquired psychiatric disability was not manifested in service or for several years thereafter and a psychosis was not manifested in the first postservice year. Accordingly, service connection for a psychiatric disability on the basis that such disability became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309) is not warranted. What remains for consideration is whether a diagnosed psychiatric disability is etiologically related to the Veteran’s service. The preponderance of the evidence is against a finding that any current psychiatric disability is etiologically related to his service. Regarding the dispositive factor of a nexus between the current psychiatric disability and service, the Board finds that the November 2016 VA examination report and December 2016 addendum merit substantial probative weight. The opinions reflect review of the Veteran’s claims file and familiarity with his medical history and lay accounts. The opinions offered were based on thorough psychiatric evaluations and include an explanation of rationale that cites to accurate factual data, including that a psychiatric disability was not manifested in service, and that psychiatric symptoms first appeared several years after service, too remote in time to reasonably be attributable to events in service. The VA examiners’ opinions warrant substantial probative weight. The Veteran’s own opinion that his psychiatric disability is related to his service is not probative evidence in this matter. He is a layperson, and has not demonstrated (and does not allege to have) the medical expertise required to diagnose, and determine the etiology of, a psychiatric disability. See Jandreau, supra. The preponderance of the evidence is against this claim. Accordingly, the appeal seeking service connection for a psychiatric disability must be denied. REASONS FOR REMAND 5. Entitlement to a TDIU rating is remanded. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board’s decision above granted him service connection for asthma. Due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim in light of the award. The matter is REMANDED for the following: Review the expanded record; implement the award of service connection for asthma, assigning an appropriate rating; and readjudicate the claim for TDIU considering the award. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel