Citation Nr: 18158049 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-13 055 DATE: December 14, 2018 ORDER Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a bilateral eye condition is denied. Entitlement to an initial compensable evaluation for a headache disorder is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome is remanded. REFERRED The issue of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder is referred. A claim of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder was raised by the Veteran in a June 2014 statement. He stated that posttraumatic stress disorder had its genesis in his chronic fatigue disorder. As this claim has never been adjudicated by VA the Board lacks jurisdiction. Accordingly, it is referred to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. The preponderance of the probative evidence is against finding that the Veteran currently has a right ankle disorder that is related to active service or events therein, and arthritis involving this joint was not compensably disabling within one year of separation from active duty. 2. The preponderance of the probative evidence is against finding that the Veteran currently has a right or left shoulder disorder that is related to active service or events therein, and arthritis involving these joints was not compensably disabling within one year of separation from active duty. 3. The preponderance of the probative evidence is against finding that the Veteran currently has a right or left knee disorder that is related to active service or events therein and arthritis involving these joints was not compensably disabling within one year of separation from active duty. 4. Refractive error of the eye is not a disability for which service connection may be granted, and the Veteran’s refractive error was not associated with a superimposed eye disease or injury that had its onset in service or that is otherwise related to service. 5. For the entire period on appeal, the Veteran’s headaches were not manifested by characteristic prostrating attacks averaging one in two months over the last several months.   CONCLUSIONS OF LAW 1. A right ankle disorder was not incurred or aggravated during active service, and right ankle arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 2. Right and left shoulder disorders were not incurred or aggravated during active service, and right and left shoulder arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 3. Right and left knee disorders were not incurred or aggravated during active service, and right and left knee arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 4. A chronic eye disorder was not incurred or aggravated inservice. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. For the entire period on appeal, the criteria for a compensable rating for headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to November 2005. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, this 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); 38 C.F.R. § 3.303 (d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent causes or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303 (b). When arthritis is manifested to a degree of 10 percent or more within one year of a veteran’s discharge from active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Bilateral shoulder, bilateral knee and right ankle disorders The Veteran contends that he has shoulder, knee and right ankle disorders which are connected to his basic training and follow-on physical fitness training while on active duty. An October 2000 enlistment physical examination reflected no bone, joint or other deformities; no lameness, painful or “trick” shoulder; and no “trick” or locked knee condition. The Veteran received a separation physical examination in October 2005 similarly indicated no swollen or painful joints, no knee problems and no foot trouble. Service treatment records are negative for any complaints, findings, or diagnoses related to the right ankle, shoulders or knees. There is no competent medical evidence showing that arthritis involving the shoulders, knees and/or right ankle was compensably disabling within one year of the claimant’s separation from active duty. The Veteran’s first documented complaint of any problem with his shoulders, knees and/or right ankle was his disability claim filed in February 2014, over eight years after separation from active duty. Significantly, a review of the Veteran’s file shows no current diagnosis for any orthopedic or joint disorders. The Board acknowledges the Veteran’s contentions that his current joint “issues” are related to his time in boot camp, and continuing required physical fitness during his active duty service. The Veteran is competent to report that he currently experiences some form of discomfort relating to his right ankle, shoulders and knees. See Layno v. Brown, 6 Vet. App. 465 (1994). The medical evidence of record, however, does not show a currently diagnosed joint or orthopedic disability or indicate that any such disability is related to active service or events therein. There is no competent medical evidence of record to establish either an in-service event, injury or disease or any current disability related to the Veteran’s orthopedic (joint) claims. The Veteran was not diagnosed with an orthopedic disability in service, and arthritis of the claimed joints was not manifested to a compensable degree within a year of discharge from active duty, so presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309. The direct service connection requirement for an in-service event, injury or disease is similarly not substantiated by the competent medical evidence of record. There were no complaints of or treatment records for any shoulder, knee and/or right ankle disorders during active service, anywhere in the claims file. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claims for service connection for any shoulder, knee and/or right ankle on a direct or presumptive basis. Thus, entitlement to service connection for bilateral shoulder, bilateral knee and a right ankle disorder is not warranted. As the preponderance of the evidence is against the claims the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral eye disorder The Veteran contends that he started wearing glasses after joining the military and that his vision has rapidly deteriorated over the years to the point where it is currently extremely poor. A review of the Veteran’s service treatment records shows that he entered service with visual acuity of 20/20 bilaterally. His separation report of physical examination noted that he had worn glasses since 2003 and that he used them only for reading. Accompanying an October 2016 statement, the Veteran included a copy of his current corrective lens prescription as support for his claim that his visual acuity had declined. With regards to the Veteran’s vision, the law provides that a refractive error of the eyes is not a disease or injury accorded disability status within the law and regulations governing the award of VA compensation. 38 C.F.R. § 3.303 (c). In the absence of superimposed ocular disease or injury, service connection is not granted for refractive error of the eyes, even if visual acuity decreased in service. 38 C.F.R. §§ 3.303 (c), 4.9. The validity of this exclusion of a refractive error in 38 C.F.R. § 3.303 (c) was upheld by the United States Court of Appeals for Veterans Claims (Court). Winn v. Brown, 8 Vet. App. 510 (1996). In consideration of the evidence and the law, the Board finds that the claim of entitlement to service connection for vision problems must be denied as a matter of law. There is neither evidence in the record, nor does the Veteran claim, that there was any inservice trauma to the eyes or any superimposed disease that might be connected to his decreased visual acuity or service. The only currently diagnosed medical condition of the eyes is a refractive error. As the law does not recognize refractive error as a compensable disability, the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased rating Headache disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. The Veteran’s tension headaches are rated by analogy to Diagnostic Code 8100 for migraines. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 10 percent disability rating is assigned where a veteran has headaches with characteristic prostrating attacks, on average, one in 2 months over the last several months. A 30 percent rating is assigned where there are characteristic prostrating attacks occurring, on average, once a month, over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims has defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The Veteran contends that his headache disorder has worsened to reach migraine level with a frequency of two to three times weekly, and that his headaches are a side effect of posttraumatic stress disorder. In a June 2014 statement, the Veteran reported headaches of a varying level on a daily basis. The Veteran was afforded a VA examination in June 2014 to evaluate the nature and severity of his headache disorder. At that examination the claimant’s history for headaches included an in-service diagnosis in May 2001 for episodes that lasted 30 to 45 minutes, which resolved without treatment. He was diagnosed with cephalgia, noted as probable tension headaches. In a June 2014 rating decision he was service connected for tension headaches and assigned a non-compensable evaluation. The competent evidence of records reflects that the current reported symptoms include frontal head pain without nausea, vomiting or light sensitivity, and treatment with over-the-counter pain medication. Episodes last less than one day. Most notably, there were no reported prostrating attacks. While the Board acknowledges the Veteran’s belief that he experiences migraine-level headaches occurring two to three times per week, no medical professional has diagnosed migraine headaches at any frequency of occurrence. No medical professional has found that the appellant experiences characteristic prostrating attacks. Indeed, the appellant’s complaints have been diagnosed as tension headaches. While the Veteran is competent to report the occurrence of his symptoms, he does not have the medical expertise to state that he is suffering from migraine headaches. As such, the preponderance of the medical evidence is against a finding of a 10 percent disability rating for a headache disorder. In the event that the Veteran in the future supplies medical evidence to support the frequency and severity of his headache symptoms to satisfy the requirements for a compensable rating for a headache disorder, he may apply to VA to reopen his appeal on this issue. Based on the current evidence however, an increased rating for a headache disorder is not warranted. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. Gilbert. REASONS FOR REMAND Service connection for chronic fatigue syndrome is remanded. The issue of entitlement to service connection for chronic fatigue syndrome must be remanded as it is inextricably intertwined with the referred issue of entitlement to service connection for an acquired psychological disorder to include posttraumatic stress disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matter is REMANDED for the following action: 1. Obtain all pertinent VA treatment records since June 2014. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Ask the Veteran to supply any private treatment records he has, or has access to, relating to any treatment he has received for chronic fatigue syndrome and/or posttraumatic stress disorder. 3. Thereafter, schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of any diagnosed chronic fatigue syndrome. The VBMS and Virtual VA folders and a copy of this remand must be available for review. Following that examination the examiner must opine whether it is at least as likely as not that chronic fatigue syndrome was incurred in or caused by his active military service, to include as secondary to any service-connected disabilities. If, subsequent to this REMAND, the Veteran receives a diagnosis of posttraumatic stress disorder, the examiner must opine whether it is at least as likely as not that posttraumatic stress disorder is either caused or aggravated by a service related chronic fatigue syndrome. For any opinion offered by any examiner a complete, well-reasoned rationale must be provided. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel