Citation Nr: 1807895 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-31 372 ) DATE Advanced on the Docket ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder, to include arthritis and bone and joint paint (bilateral knee disability). 2. Entitlement to service connection for a lumbar spine disorder, to include arthritis and bone and joint paint (back disability). 3. Entitlement to service connection for a right elbow disorder, to include arthritis and bone and joint paint (right elbow disability). 4. Entitlement to service connection for chronic fatigue syndrome (CFS), to include a disability manifested by recurrent signs or symptoms of fatigue as due to an undiagnosed illness. 5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected asthma. 6. Entitlement to service connection for posttraumatic stress disorder (PTSD). ORDER Service connection for a bilateral knee disability, a back disability, a right elbow disability, and sleep apnea is granted. FINDINGS OF FACT 1. A bilateral knee disability, a back disability, and a right elbow disability are etiologically related to an in-service injury, event, or disease. 2. Sleep apnea is aggravated beyond its natural progress by service-connected asthma. 3. On October 31, 2017, at the Board hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal on the issue of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for direct service connection for a bilateral knee disability, a back disability, and a right elbow disability have been met. 2. The criteria for secondary service connection for sleep apnea have been met. 3. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned in an October 2017 videoconference hearing, a transcript of which is of record. At the hearing, a motion to advance this matter on the docket was made. The Veteran's attorney argued that the earlier VA Form 9 (formal appeal to the Board) was not considered when the docket number was granted. See October 2017 Hearing Transcript. The Board has granted the motion. Also at the hearing, the Veteran's attorney asked the undersigned to keep the record open for 90 days, so that new evidence could be submitted. See October 2017 Hearing Transcript. The record was open until January 29, 2018. Also at the hearing, the Veteran's attorney stated that the Veteran wished to waive the review by the agency of original jurisdiction (AOJ) of any evidence submitted thereafter. 38 C.F.R. §§ 19.37, 20.1304 (2017). The Board has thereby considered the said evidence in its decision. While this appeal was pending, the RO granted entitlement to service connection for irritable bowel syndrome (in an August 2014 rating decision) and dyspnea, granted as asthma, (in an April 2017 rating decision). Since those grants constituted a full grant of the benefits sought on appeal, the claims are no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran has never appealed the assigned rating for those disabilities and, as such, increased rating claims are not before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of CFS is REMANDED to the Agency of Original Jurisdiction (AOJ). 1. WITHDRAWN APPEAL The issue of entitlement to service connection for PTSD was first denied in a July 2014 rating decision. The Veteran perfected his appeal with regard to that issue in September 2014. At the October 2017 Board hearing, the Veteran, in the presence of his representative, stated that he wished to withdraw the issue of entitlement to service connection for PTSD. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3) (2017). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). The Veteran has withdrawn the appeal on the issue of entitlement to service connection for PTSD. Thus, as there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. 2. KNEES, BACK, RIGHT ELBOW, SLEEP APNEA The Veteran asserts that his bilateral knee disability, back disability, right elbow disability, and sleep apnea are related to his active service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran's currently-diagnosed bilateral knee disability, back disability, and right elbow disability either began during active service, or are etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that diagnosed bilateral knee disability, back disability and right elbow disability are etiologically related to the Veteran's active service. A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran's current diagnosis of sleep apnea is caused or aggravated by his service-connected asthma. The Board finds that the competent, credible, and probative evidence establishes that the Veteran's sleep apnea is aggravated beyond its natural progress by the Veteran's service-connected asthma. The Veteran has current diagnoses of a bilateral knee disability, a back disability, a right elbow disability, and sleep apnea. Thus, the first element of service connection is met. As to the issue of an in-service incurrence, the Veteran's service treatment records (STRs) do not show complaints of knee issues, back issues, right elbow issues, or sleep apnea. However, the Veteran has asserted that he did experience knee, back, right elbow symptomatology during service and thereafter, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Namely, the Veteran and a fellow service member on his behalf have testified that the Veteran injured his back and knees while lifting 500 pound bombs and heavy equipment in active service, and that his right elbow injury occurred when he was playing soccer while in active service. The Veteran reported that one of the bombs "came down on [his] back" and that he reported this to his sergeant, who made fun of the Veteran's request to see a doctor for his back and essentially told him to get back to work. See October 2017 hearing transcript; November 2017 lay statement. Thus, the Board finds that the second element under Holton, is satisfied. Turning to whether there is a medical nexus, a medical professional has stated that the Veteran's diagnosed bilateral knee disability, back disability, and right elbow disability are directly related to his active service, and that his sleep apnea is aggravated by his service-connected asthma. See November 2017 independent medical examination. The Board finds that the November 2017 independent medical examination opinion is the product of a well-supported rationale and based on an in-person examination and a thorough review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board places great probative value on the November 2017 independent medical examination opinion and on the Veteran's statements regarding the onset and continuity of symptomatology, as the Veteran is competent to report about what happened to him during service and his statements are found to be credible as they are consistent with the circumstances of his service. Resolving all doubt in favor of the Veteran, based on the foregoing, the Board finds that the Veteran's bilateral knee disability, back disability, and right elbow disability began during active service. Accordingly, the Board finds that the evidence shows that the Veteran's bilateral knee disability, back disability, and right elbow disability are related to his active service. As such, the Veteran's claims of entitlement to service connection for a bilateral knee disability, a back disability, a right elbow disability, and sleep apnea are granted. REMAND The Veteran asserts that he experiences CFS, which is related to his active service. At the hearing, the Veteran's attorney advanced several arguments - that the Veteran does experience CFS, as distinct and separate from his service-connected asthma and sleep apnea; that the Veteran experiences a Gulf War-related illness which cannot be diagnosed and manifests as fatigue; and finally that the fatigue and tiredness are actually symptoms of the Veteran's service-connected asthma and sleep apnea. See October 2017 hearing transcript. As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Theatre of Operations during the Persian Gulf War. Service connection may also be established for a 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, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71,382 (Oct. 17, 2016). The term "Persian Gulf veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (d)(1). The Southwest Asia Theater of operations includes Iraq, where the Veteran served. 38 C.F.R. § 3.317 (d)(2). See Veteran's DD-214, Certificate of Release or Discharge from Active Duty. A "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). The Veteran's private treatment records note fatigue and sleep issues. See Private treatment records, June 2017. The Veteran underwent VA Gulf War Medical Examinations in June 2014 and April 2017. Based on the examination reports, the examiners did not inquire about fatigue, sleep issues, or CFS, and did not opine on any such issues. As such, it is unclear to the Board whether the Veteran's fatigue is a separate and distinct undiagnosed illness, CFS, or constitutes symptoms of his service-connected asthma and/or sleep apnea. This is especially key in light of the fact that the Veteran testified that his fatigue has significantly improved since he has been using a CPAP machine for his sleep apnea. See October 2017 hearing transcript. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran's medical records and claims file should be reviewed anew to determine their nature and etiology of any existing fatigue, sleep issues, or CFS. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A new VA examination should be scheduled to ascertain whether the Veteran has CFS, and, if so, whether it constitutes a disorder, as distinct and separate from his service-connected asthma and sleep apnea; a Gulf War-related illness which cannot be diagnosed and manifests as fatigue; or whether the fatigue and tiredness are actually symptoms of the Veteran's service-connected asthma and sleep apnea, and not a separate disorder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to evaluate the nature and etiology of his claimed disability manifested by fatigue. The claims folder should be made available to the examiner for review before the examination, and such review should be noted in the examination report. Based on the results of the examination, the examiner is asked to address each of the following questions: a) Please state whether the symptoms of the claimed condition (fatigue) are attributable to a known clinical diagnosis, to include whether the Veteran has chronic fatigue syndrome. If the Veteran does not now have, but previously had, any such condition, when did that condition resolve? b) Please state whether the Veteran's disability pattern is consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia (specifically in Iraq). d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service, or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? e) If the diagnosed disorder is not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies), to include asthma and/or sleep apnea? f) If the diagnosed disorder is not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 2. Readjudicate the issue on appeal. If it is determined the Veteran does not have a current competent medical diagnosis for the claimed chronic fatigue syndrome, a determination should be made whether service connection is warranted for undiagnosed illness(es) manifested by the pertinent symptomatology pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since these claims were last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: Robert C. Brown, Jr., Attorney Department of Veterans Affairs