Citation Nr: 18159534 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-07 492 DATE: December 20, 2018 ORDER Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for Methicillin-Resistant Staphylococcus Aureus (MRSA) infection is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for night sweats is remanded. Entitlement to service connection for sleep disorders is remanded. Entitlement to a rating in excess of 20 percent for psoriatic arthritis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus type II began during his active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s MRSA began during his active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for entitlement to service connection for MRSA infection have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1981 to September 2001. Following issuance of the supplemental statement of the case for the matters on appeal and transfer of the record to the Board, additional evidence was associated with the record. That evidence, which includes additional VA treatment records, does not have a bearing on the issues decided herein. Accordingly, a remand for issuance of an additional supplemental statement of the case is not necessary, and the Board may proceed with appellate consideration of those issues. See 38 C.F.R. § 19.37. In May 2018, the Veteran, through his representative, submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form electing to have all eligible issues currently on appeal processed as a supplemental claim. However, the appeal considered herein was activated at the Board prior to receipt of that form, and is therefore not eligible for the RAMP program. The Agency of Original Jurisdiction (AOJ) granted the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) in a March 2018 rating decision. The Veteran submitted a timely notice of disagreement as to the effective date assigned for the grant of a TDIU. That appeal was eligible for processing under RAMP pursuant to Veteran’s May 2018 election. The AOJ issued a rating decision as to the Veteran’s RAMP appeal in October 2018 in which it denied an earlier effective date for the grant of TDIU. To date, the Veteran has not appealed any aspect of that decision. Therefore, the issue of entitlement to a TDIU is not currently before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the issues remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection The Veteran seeks entitlement to service connection for diabetes mellitus type II and a MRSA infection, which he contends are related to his service in the Southwest Asia theater of operations during the Persian Gulf War. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to an undiagnosed illness or medically unexplained chronic multisymptom illness, provided that certain requirements are met. For the purposes of 38 C.F.R. § 3.317, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness are listed in 38 C.F.R. § 3.317(b). The medical treatment evidence reflects that the Veteran has been diagnosed with diabetes mellitus type II and that he was treated for a MRSA infection at some point. However, the Veteran does not contend, and the record does not show, that his diabetes mellitus type II or MRSA infection were first treated during his active service. His service treatment records are absent for any diagnosis of diabetes mellitus type II or a MRSA infection. His medical treatment records show that he was diagnosed with diabetes mellitus type II in 2011, approximately ten years after his separation from active service, and that the MRSA infection occurred in 2013, approximately twelve years after his separation from active service. As such, the Board finds that the record does not show the Veteran’s diabetes mellitus type II or MRSA infection had their onset during his active service, and that service connection cannot be granted on a direct basis. The Veteran contends only that he is entitled to compensation for those conditions under 38 C.F.R. § 3.317 based on his active service Southwest Asia theater of operations during the Persian Gulf War. However, neither diabetes mellitus type II nor MRSA infections are qualifying chronic disabilities under 38 C.F.R. § 3.317(a)(2). Diabetes, in particular, is specifically listed under 38 C.F.R. § 3.317(a)(2)(ii) as a chronic multisymptom illness of partially understood etiology that will not be considered medically unexplained. Furthermore, a January 2015 VA examiner stated that MRSA is a community-acquired or nosocomial disease process documented in medical literature with a clear and specific etiology. The Board affords the examiner’s statements probative weight because they were provided by a competent medical professional based on her specialized knowledge of the nature of MRSA. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). The Board accepts the opinion as probative evidence that the Veteran’s MRSA infection in 2013 was not a sign or symptom of an undiagnosed illness or a medically unexplained chronic multisymptom illness. As such, service connection may not be granted for either diabetes mellitus type II or MRSA infection under the provisions of 38 C.F.R. § 3.317. In summary, the probative evidence of record does not show that the Veteran’s diabetes mellitus type II or MRSA infection may be service connected on a direct basis or under the provisions of 38 C.F.R. § 3.317. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for diabetes mellitus type II and MRSA infection. Because 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); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. The Veteran seeks entitlement to service connection for left ear hearing loss, which he contends is due to nerve damage or exposure to noise during his active service. The Veteran was provided a VA audiological examination in February 2015. Testing conducted at that examination revealed a left ear hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. The examiner opined that the Veteran’s left ear hearing loss is not at least as likely as not caused by or a result of an event in military service. As a rationale for that opinion, the examiner explained that the Veteran did not have hearing loss at the time of enlistment into active service or at the time of separation from active service, and that the Veteran reported that his left ear hearing loss began in 2014, which is “well past the time in the service.” The examiner further acknowledged that the service treatment records show that the Veteran had a ruptured eardrum during service, but concluded that the Veteran’s current left ear hearing loss “is not due to having a ruptured eardrum nor is it due to acoustic trauma in service.” Under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the February 2015 VA examiner based her negative nexus opinion on the fact that the Veteran’s service treatment records do not show an in-service loss of hearing and that the Veteran’s hearing loss was first diagnosed several years after his active service. The examiner did not explain why evidence showing an in-service hearing loss is required to determine that the Veteran’s current hearing loss was incurred in active service or is otherwise etiologically related to his active service. The Board therefore finds the February 2015 VA examination to be inadequate for decision-making purposes, and that a remand is required so that an addendum opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for headaches is remanded. The Veteran seeks entitlement to service connection for headaches, which he contends are related to his service in the Southwest Asia theater of operations during the Persian Gulf War. Headaches are listed under 38 C.F.R. § 3.317(b) as one of the symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because no VA examiner has opined whether the Veteran’s headaches may be a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness. A remand is required so that such an opinion may be obtained. 3. Entitlement to service connection for PTSD is remanded. The Veteran seeks entitlement to service connection for PTSD. He has described several in-service stressful events that he believes have caused the PTSD. However, the record does not indicate that efforts have been made to verify those stressors. In addition, the Veteran was provided a VA examination as to his claimed PTSD in January 2015. The January 2015 VA PTSD examiner considered only one of the Veteran’s reported stressors and determined that the Veteran does not meet the diagnostic criteria for PTSD. However, a June 2018 VA treatment note indicates that the Veteran “seems to meet both the Stressor and the Clinical Symptom criteria for a diagnosis of PTSD.” The June 2018 treatment note does not fully explain whether and how the diagnostic criteria for PTSD are met. Therefore, it is unclear whether the Veteran meets the diagnostic criteria for PTSD and, if so, whether that diagnosis is based on a verified in-service stressor. As such, a remand is required so that efforts may be made to verify the Veteran’s reported in-service stressors and to provide the Veteran another VA examination as to the issue. 4. Entitlement to service connection for night sweats and sleep disorders are remanded. The record indicates that the Veteran’s night sweats and sleep disturbances are at least in part due to psychiatric conditions. As such, those issues are inextricably intertwined with the claim for entitlement to service connection for PTSD, which is remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, the Board finds that the issue of entitlement to service connection for PTSD must be adjudicated by the AOJ prior to appellate consideration of entitlement to service connection for night sweats and sleep disorders. 5. Entitlement to a rating in excess of 20 percent for psoriatic arthritis is remanded. The VA treatment records associated with the record since the supplemental statement of the case in this appeal document further treatment of the Veteran’s service-connected psoriatic arthritis. Those records are relevant to the claim for an increased rating for the service-connected psoriatic arthritis, and the Veteran has not waived initial consideration by the AOJ of the additional relevant evidence. Therefore, the issue must be remanded so that the AOJ may consider the additional evidence in the first instance and issue a supplemental statement of the case as to the issues. See 38 C.F.R. §§ 19.31, 20.1304(c). The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors, including those he described in correspondence and a VA Form 21-0781 received in January 2015. If more details are needed, contact the Veteran to request the information. 2. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (50 percent probability or greater) that the PTSD is related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, or at least as likely as not proximately due to or aggravated by the Veteran’s service-connected disabilities. If the examiner determines that it is at least as likely as not that the Veteran has PTSD or another acquired psychiatric disorder that is related to his active service or secondary to his service-connected disabilities, then the examiner should also state whether it is at least as likely as not that the Veteran’s reported night sweats and sleep disturbances are caused by or symptoms of the PTSD or other acquired psychiatric disorder. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left ear hearing loss is at least as likely as not (50 percent probability or greater) related to his in-service exposure to noise or to the in-service ruptured eardrum. The examiner must note that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the fact that there are no in-service audiometric test results showing that the Veteran had an in-service left ear hearing loss does not necessarily mean that the Veteran’s current left ear hearing loss is not etiologically related to his active service, to include the reported noise exposure and/or the documented ruptured eardrum. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches are related to an in-service injury, event, or disease. The examiner must also state whether it is at least as likely as not that the Veteran’s headaches are a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness, as defined in 38 C.F.R. § 3.317. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel