Citation Nr: 18159595 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-39 456 DATE: December 20, 2018 ORDER Service connection for a sleep disorder, to include as due to service in Southwest Asia, is denied. Service connection for hair loss, to include as due to service in Southwest Asia, is denied. Service connection for weight loss, to include as due to service in Southwest Asia, is denied. Service connection for headaches, to include as due to service-connected PTSD, is granted. REMANDED Service connection for chronic fatigue syndrome, to include as due to service in Southwest Asia, is remanded. Service connection for joint pain, right upper extremity, to include as due to service in Southwest Asia, is remanded. Service connection for joint pain, left upper extremity, to include as due to service in Southwest Asia is remanded. Service connection for joint pain, right lower extremity, to include as due to service in Southwest Asia, is remanded. Service connection for joint pain, left lower extremity to include as due to service in Southwest Asia, is remanded. Nonservice-connected pension (NSC pension) benefits is remanded. REFERRED In September 2018, the Veteran, through his attorney, filed an untimely VA Form 9 as to a March 2018 statement of the case (SOC) addressing the issues of entitlement to a higher initial disability rating for PTSD and earlier effective date for the grant of service connection for PTSD. With the September 2018 VA Form 9, the Veteran’s attorney filed an affidavit explaining that the March 2018 SOC had not been received at his office. The attorney argued that the VA Form 9 should be accepted as timely. This issue is not before the Board and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication.   FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a sleep disorder, or has not shown insomnia symptoms as due to an undiagnosed illness, or shown to be etiologically related to active service. 2. The Veteran’s complaints of hair loss have been attributed to male-pattern baldness. Male-pattern baldness is not a “disability” for VA compensation purposes, and there was no superimposed injury or disease in service that caused additional disability. 3. The Veteran does not currently have a weight loss disorder related to service, and has not shown abnormal weight loss due to an undiagnosed illness. 4. The Veteran’s tension headaches began during service and are secondary to PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder, to include as due to service in Southwest Asia, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for hair loss, to include as due to service in Southwest Asia, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for weight loss, to include as due to service in Southwest Asia, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for service connection for tension headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to November 1991, with service in Southwest Asia. These matters are before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The RO denied claims for service connection for chronic fatigue syndrome, bilateral joint pain of upper and lower extremities, sleep disorder, hair loss, and weight loss in May 2011, a May 2016 rating decision denied the entitlement to NSC pension benefits, and a June 2017 rating decision denied the claim for service connection for headaches. While there is a previously unappealed July 1995 determination on non-service-connected pension, the Board finds that the non-service-connected pension claim is accurately characterized herein because new and material evidence is not required in a pension case. See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992). The Veteran was previously represented by Virginia Department of Veterans Services. In May 2013, a VA Form 21-22a (Appointment of Individual as Claimant’s Representative) was received in favor of Mr. J. Michael Woods. This form revoked the authority of any prior representative. See 38 C.F.R. § 14.631(f)(1). In November 2017, the Board remanded the claims for service connection for chronic fatigue syndrome, bilateral joint pain of upper and lower extremities, sleep disorder, hair loss, and weight loss, which have since been completed. In August 2018, the Veteran’s attorney submitted a written request to for a full 90-day period prior to issuing a decision on these issues. A formal ruling granting the extension was issued in a correspondence dated that same month. As the 90-day period has passed, the Board may now proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from 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). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 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). “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). Signs or symptoms that 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). 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. 1. Entitlement to service connection for a sleep disorder, to include as due to service in Southwest Asia. The Veteran asserts that he has a sleep disorder due to his service in the Gulf War. The service treatment records are silent for complaints of or treatment for insomnia or trouble sleeping. On his Report of Medical History in September 1991, the Veteran denied frequent trouble sleeping. The Veteran first reported sleeplessness and difficulties sleeping as related to his traumatic experience during service for VA mental health assessment purposes in August 2010. Other VA treatment records reflect discussions of trouble sleeping during his mental health sessions. At the June 2018 Gulf War general medical examination, the Veteran reported that he sometimes wakes up in the middle of the night and cannot go back to sleep. He also reported posttraumatic stress disorder (PTSD) nightmares cause him to wake up in a cold sweat. The examiner was unable to provide a diagnosis for sleep apnea or a sleep disorder. The examiner noted the Veteran has a history of insomnia and a long history of alcohol abuse and dependence. He has abused tobacco and marijuana in the past. The examiner opined that it was more likely than not that the substance abuse was the cause of the insomnia. The rationale was that substance abuse is a well-known etiology of insomnia. Given the above, the Board finds that the Veteran does not have a qualifying chronic disability, including resulting from an undiagnosed illness or chronic multisymptom illness such that service connection may be presumed under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Therefore, there is no condition that warrants presumptive service connection analysis under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The evidence also does not support direct service connection, as he lacks a current diagnosis, the first element to satisfy such a claim. VA treatment records reflect that he discussed his trouble sleeping due to his service-connected PTSD and did not separately address a sleep disorder. The June 2018 examiner was unable to provide a diagnosis. Absent the current existence of a claimed condition there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There are no other medical opinions to the contrary. There is no indication that the Veteran has a separate sleep or sleep symptoms not attributable to a known diagnosis. Sleep apnea has been ruled out. As such, the preponderance of the evidence is against the claim of service connection for a sleep disorder. Thus, there is no doubt to be resolved and service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To be clear, there is evidence of a sleep impairment. As indicated, the June 2018 VA examiner attributed it to a nonservice-connected condition. An August 2013 DBQ from a private (non-VA) provider indicates that his sleep impairment is a symptom PTSD. Such evidence tends to concern the severity and degree of the PTSD disability, which is a matter that must be addressed when assigning a disability rating for PTSD. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (explaining that “the appropriate time to consider the veteran’s symptoms is when determining the amount of compensation to which the veteran is entitled.”); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see, also, Ferenc v. Nicholson, 20 Vet. App. 58, 62-63 (2006) (finding that that “compensation” is a distinct legal term from both “rating” and “service connection”. . . Congress has created a clear distinction between these terms.”). That question is currently outside the scope of this decision as it pertains to the award of service connection for a separate sleep disorder. 2. Entitlement to service connection for hair loss, to include as due to service in Southwest Asia. The Veteran seeks service connection for hair loss, to include as due to his Gulf War service. Service treatment records contain no complaints, treatment, or diagnosis of male-pattern baldness or any other hair loss condition. VA treatment records do not show a current diagnosis for hair loss. Pursuant to the Board remand, the Veteran underwent a Gulf War general medical and VA examinations in June 2018. The Veteran reported that he started losing hair after he returned from his Gulf War service. He was told that he has male-pattern baldness in 1995. The examiner provided a diagnosis for male-pattern baldness. The examiner opined that this was a disease with a clear and specific etiology and diagnosis and thus, it was less likely than not that the disability pattern or diagnosed disease was related to his Gulf War service. The rationale was that male-pattern baldness has a genetic etiology and was not due to military service or Gulf War service. After careful consideration of the evidence, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for hair loss. Male-pattern balding is not, by itself, considered a disability for which service connection may be granted. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities does not contemplate a separate disability rating for male-pattern baldness); see also, e.g., VBA Manual M21-1, III.iv.4.L.4.a., SC for Male Pattern Baldness or Androgenetic Alopecia. To date, the Veteran’s only current diagnosis is male-pattern baldness. Applicable VA regulations use the term “disability” to refer to the average impairment in earning capacity resulting from diseases or injuries encountered as a result of or incident to military service. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); 38 C.F.R. § 4.1 (2017). There must be competent evidence of a current disability to support service connection, and as noted above, male-pattern balding does not itself constitute disease or disability. In addition, the evidence of record does not establish that the Veteran has a disability manifested by hair loss. Moreover, the Veteran’s service treatment records were negative for any incidents or complaints for hair loss. The evidence of record does not include any other competent evidence demonstrating that the Veteran’s hair loss is a manifestation of a disability for which service connection is available. Although the Veteran may believe his hair loss was due to his Gulf War service, he does not have the requisite expertise to render a competent opinion as to whether his hair loss is a disability for VA compensation purposes, or that his hair loss is diagnosable as something other than male-pattern baldness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau, 492 F.3d at 1377. For the foregoing reasons, the Board finds that the claim of service connection for hair loss, on any basis of entitlement, must be denied. 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 of service connection, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for weight loss, to include as due to service in Southwest Asia. The Veteran seeks service connection for weight loss, which he attributes to his service during the Gulf War. A service treatment record pre-screening form dated in September 1987 showed that the Veteran weighed 132 pounds. His September 1987 entrance examination indicated that the Veteran weighed 126 pounds. At his September 1991 separation examination, the Veteran weighed 150 pounds; he responded yes to recent gain or loss of weight on his Report of Medical History. However, on examination, the clinician noted “none significant.” VA treatment records from 2004 to 2017 showed the Veteran weighing between 125.8 and 134 pounds. At the June 2018 VA examination for Gulf War general medical examination, the Veteran reported that his average weight was between 150 and 155 pounds, but he now weighed 120 pounds. He believed his weight goes up and down. On the date of the examination, he weighed 134.9 pounds. The Veteran reported that due to stress, it was hard for him to keep weight on. The examiner, after reviewing his claims file, noted that his weight at the time of entry was 126 pounds, and at separation, his weight was at 150 pounds. The examiner explained that many service members gained weight after entry due to either muscle build-up or consuming meals high in carbohydrates. Post-service, the examiner found that his weight fluctuated between 124 to 134 pounds. The examiner opined that this range was not that different from his entry weight at 126 pounds. The examiner found that these weight fluctuations were what might be expected in an individual who has had a diagnosis of alcohol dependence (which can contribute to a poor diet), PTSD (stressors that depress or increase appetite), and nicotine suppression therapy (nicotine is a known appetite suppressant). The examiner did not find a chronic weight loss condition or provide a diagnosis for such. The Board finds that the evidence of record does not support a qualifying chronic disability that warrants presumption service connection analysis under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Based on the foregoing, the Board also finds that service connection for weight loss is not warranted. Here, the Veteran’s lay assertions are contradicted by the documented medical evidence in-service and post-service, where his weight has been consistently recorded as normal with no documentation of a weight loss or feeding disorder. VA treatment record do not reflect a current diagnosis of a weight loss disorder. Moreover, the June 2018 VA examiner, who examined him, was unable to render a diagnosis of a weight loss disorder based on the objective findings. None of the medical professionals have diagnosed any abnormal weight loss. The evidence reflected above showed his weight remained relatively consistent and any fluctuations shown were not shown to be abnormal or amount to a disorder. The laws authorizing Veterans’ benefits provide benefits only where there is current disability, as identified by a medical diagnosis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer, 3 Vet. App. at 225. The Veteran in this case has not presented competent evidence showing that he has a currently diagnosed weight loss or eating disorder or abnormal weight loss associated with an undiagnosed illness. In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms of losing weight; however, his lay statements are not competent to establish that he has a current weight loss disorder or abnormal weight loss symptoms associated with an undiagnosed illness. This question is medically complex, as it requires knowledge of what constitutes abnormal weight loss in the context of a specific person’s situation together with knowledge of various possible medical causes for weight loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence. In short, the preponderance of the evidence is against the Veteran’s claim, and the benefit of the doubt rule does not apply. Therefore, service connection for weight loss, to include as due to service in Southwest Asia, is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for headaches, to include as due to service-connected PTSD, is granted. Service connection for headaches is warranted. A private examiner in September 2018 explained that the Veteran has a current diagnosis of tension headaches, which at least as likely as not began in service and are precipitated and aggravated by his service-connected PTSD. The examiner gave an extensive supporting rationale for this opinion. On this basis of this record, the Board finds that service connection for tension headaches is warranted. REASONS FOR REMAND 1. Service connection for chronic fatigue syndrome, to include as due to service in Southwest Asia, is remanded. 2. Service connection for joint pain, right upper extremity, to include as due to service in Southwest Asia, is remanded. 3. Service connection for joint pain, left upper extremity, to include as due to service in Southwest Asia is remanded. 4. Service connection for joint pain, right lower extremity, to include as due to service in Southwest Asia, is remanded. 5. Service connection for joint pain, left lower extremity to include as due to service in Southwest Asia, is remanded. Issues 1-5 are remanded for a new VA examination. The Veteran previously underwent an examination in July 2018. The July 2018 VA examination is inadequate in several respects. For instance, the examiner determined that the Veteran’s “[c]hronic fatigue is a nonspecific symptom. The claimed symptom is a nonspecific symptom. At this time, based on current available data and medical evidence, unable to render a diagnosis nor is the medical provider able to say that the symptom is an un-diagnoseable [sic] illness.” The Board has difficulty understanding this opinion because the examiner concluded that the Veteran’s fatigue is neither diagnosed nor undiagnosable. It would seem, without further explanation, that the Veteran’s symptom must be either one or the other. The examiner did not explain why he was “unable to say” the symptom was an undiagnosable illness. Moreover, the examiner did not go on to address whether the Veteran’s symptoms collectively represented a “medically unexplained chronic multisymptom illness.” Further limited the probative weight of this opinion, the VA examiner commented that “[VA] examiners are not responsible for work up of signs or symptoms or making diagnoses or treatment of conditions.” The Board agrees that VA examiners, who only evaluate veterans for limited specific purposes, are not responsible for treatment. However, one of the central purposes of a VA examination is to determine signs and symptoms and make diagnoses. This is especially true for claims under § 3.317. In fact, the Court of Appeals for Veterans Claims (Court or CAVC) has made clear that it must be clear, from an examiner’s statements that the examiner has indeed considered “all procurable and assembled data,” including by obtaining all tests and records that might reasonably illuminate the medical analysis. When the record leaves this issue in doubt, it is the Board’s duty to remand for further development. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Thus, the Board cannot accept the VA examiner’s self-imposed limitation that a work-up of the Veteran’s signs and symptoms could not be done. Relatedly, the examiner stated, for example, that he “has no explanation for this Veteran’s signs and/or symptoms [of left hip pain] except possible deconditioning.” This statement appears to indicate a positive opinion under § 3.317. However, the limitations in the remainder of the opinion limit the probative value that can be placed on this conclusion. In short, it remains that the Veteran has symptoms, such as fatigue and joint pain. The VA examiner did not adequately address whether those symptoms are consistent with a qualifying disability under § 3.317 or are directly related to service. 6. Nonservice-connected pension (NSC pension) benefits is remanded. A VA examination is needed to evaluate whether the Veteran’s disabilities are permanent and total. He contends that his posttraumatic stress disorder (PTSD) and hypertension conditions rendered him permanently and totally disabled. See November 2015 VA Form 21-527EZ. There is some supporting evidence, such as an August 2013 DBQ from private (non-VA) provider. Overall, however, the evidence does not adequately address whether the Veteran’s collective disability picture results in permanent and total disability. As such, a VA examination is needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his fatigue and joint pain. The examiner should address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any symptoms, or functional impairment, such as pain or limited motion, not accounted for by any current diagnosis? (c.) Next, please provide a medical statement explaining whether any individual symptom(s) or the collective disability pattern is: a. an undiagnosed illness b. a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology c. a diagnosable chronic multi-symptom illness with a partially explained etiology, or d. a disease with a clear and specific etiology and diagnosis (d.) If, after examining the Veteran and reviewing the claims file, you determine that any symptom(s) or disability pattern is consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (e.) If no, is it at least as likely as not that any diagnosed disorder, symptom(s), or functional impairment, had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? 2. Schedule the Veteran for a general medical examination by an appropriate clinician to determine whether he has a permanent and total disability. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel