Citation Nr: 1819946 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-36 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested as fatigue and painful joints, to include as due to undiagnosed illness. 2. Entitlement to service connection for a disability manifested as fatigue and painful joints, to include as due to undiagnosed illness. 3. Entitlement to service connection for an acquired psychiatric disorder, to include general anxiety disorder, panic disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: R. J. Bratch, Attorney ATTORNEY FOR THE BOARD M. M. Celli, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to November 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). 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 entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final July 2001 rating decision, the AOJ denied service connection for fatigue and painful joints (elbows, hands, and knees) as due to an undiagnosed illness. 2. Evidence associated with the record since the final July 2001 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for fatigue and painful joints due to undiagnosed illness. 3. The Veteran had active service in the Southwest Asia Theater during the Persian Gulf War. 4. The Veteran's claimed fatigue, joint pain, headaches, and gastrointestinal symptoms have been attributed to known clinical diagnoses and are not related to, or manifestations of, undiagnosed illness or other qualifying chronic disability. 5. Osteoarthritis of the knees and hands was not incurred in service, did not manifest within one year of separation from service, and is not otherwise causally or etiologically related to any disease, injury, or incident in service. 6. A headache disorder was not incurred in service and is not otherwise causally or etiologically related to any disease, injury, or incident in service. 7. Gastroesophageal reflux disease (GERD) was not incurred in service and is not otherwise causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The July 2001 rating decision that denied service connection for fatigue and painful joints (elbows, hands, and knees) as due to undiagnosed illness is final. 38 U.S.C.A. § 7105(c) (West 1991) [38 U.S.C.A § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 20.2014, 20.302, 20.1103 (2000) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a disability manifested as fatigue and painful joints, to include as due to undiagnosed illness. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a disability manifested as fatigue and painful joints to include as due to undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters VA's duty to notify the Veteran as to the information and evidence necessary to substantiate the claim was satisfied by a letter dated in February 2011. Neither the Veteran nor his representative has raised any issues with the duty to notify. VA's duty to assist the Veteran has also been met. Service treatment records and identified post-service medical records were obtained. The Board observes that, in April 2011, the Veteran reported that VA had lost his in-service records showing he wore a nuclear, biological, and chemical suit for protection. While such have not been specifically obtained, the Board finds there is no prejudice to the Veteran in proceeding with a decision on this matter as VA concedes the Veteran's in-service exposure to environmental hazards. Consequently, such VA treatment records are not necessary, and, therefore, the Board may proceed with a decision at this time without prejudice to the Veteran. In a May 2015 statement, the Veteran's representative asserted the claim decided herein should be referred for a medical opinion or remanded for such. As described in greater detail below, however, the Board finds the medical opinions of record adequate for purposes of determining entitlement to service connection under all theories of entitlement. Neither the Veteran nor his representative has alleged any further deficiency with respect to VA's duties to notify or assist. II. Analysis Application to Reopen Previously Denied Claim Generally, a claim which has been denied in an unappealed AOJ or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a July 2001 rating decision, the AOJ denied service connection for fatigue and joint pain due to undiagnosed illness on the basis that the evidence did not show a chronic condition causing fatigue and painful joints had been incurred or permanently aggravated in service. The Veteran was notified of the decision and his appellate rights that same month. The Veteran did not submit a timely notice of disagreement with the July 2001 rating decision. Further, VA did not receive any new and material evidence within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the July 2001 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991) [(2012)]; 38 C.F.R. §§ 3.104, 20.2014, 20.302, 20.1103 (2000) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. The evidence received since the July 2001 final rating decision includes new VA examination reports and lay statements. In pertinent part, this evidence reflects the Veteran's assertions that current, additional symptoms constitute a qualifying chronic disability for service connection purposes. Regardless of the VA examiner's medical opinion concerning such assertions, the credibility of the reported symptoms is to be presumed. Justus, 3 Vet. App. at 513. As this evidence raises triggered VA's duty to assist by obtaining a medical examination and opinion, it is considered material. Therefore, the Board finds the evidence received since the July 2001 final rating decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim. Therefore, the claim is reopened. Service Connection The Veteran asserts that he has multiple symptoms, to include fatigue, painful joints, headaches, and gastrointestinal symptoms, due to an undiagnosed illness. He claims his exposure to environmental hazards while serving in the Southwest Theatre of Operations is the cause of the undiagnosed illness. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the claims decided herein as raised directly by the Veteran and those reasonably raised by the record. The record reflects that the Veteran had service in Southwest Asia from October 1990 to July 1991 during the Persian Gulf War, and, therefore, such laws and regulations are applicable to his claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War, provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A chronic qualifying disability means a chronic disability resulting from (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). For the purposes of this section, 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 will not be 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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (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). Here, the Board finds probative that VA physicians have attributed the Veteran's symptoms of painful joints, fatigue, headaches, and gastrointestinal symptoms to known clinical diagnoses. Specifically, the Veteran's anxiety and lack of energy were noted to be due to his well-documented mental health/substance issues, and as such, the Board finds these symptoms are part of the Veteran's diagnosed generalized anxiety disorder and panic disorder. In this respect, the issue of entitlement to service connection on a direct basis for an acquired psychiatric disorder, to include anxiety disorder and panic disorder, is addressed in the Remand section of this decision. In addition, the November 2011 clinician found the Veteran had a current diagnosis of GERD in connection with his gastrointestinal symptoms. Moreover, the November 2011 VA examiner found there were no diagnosed illnesses for which no etiology was established. Further, a July 2014 VA examination report demonstrates diagnoses of headaches and osteoarthritis of the knees and hands. The January 2011 VA examiner found the Veteran's general medical conditions were known/established disease entities that had no relationship to environmental exposures in Southwest Asia. The current examination revealed no objective evidence that the Veteran currently had any disease or residuals related to specific environmental exposures during his service in Southwest Asia. Specifically, the current examination did not support diagnoses of any undiagnosed illness or medical unexplained chronic multi-system illness. Accordingly, the Board finds the provisions of 38 C.F.R. § 3.317 are not applicable. In order to address all theories of entitlement, however, the Board has considered whether entitlement to service connection for the diagnosed clinical disorders described above is warranted on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As described above, the record demonstrates clinical diagnoses for the Veteran's symptoms during the pendency of the appeal, and as such, the Board finds the evidence establishes current disabilities for service connection purposes. However, the Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis of a condition manifested by fatigue or headaches, although there are notations of cramps in legs with exercise, a laceration to the left knee and right elbow, and gastroenteritis. Nevertheless, the Board finds pertinent that the Veteran's separation examination was normal and that he has continually denied requesting treatment during service for any of the reported symptoms. With respect to a nexus between these conditions and service, the November 2011 VA examiner opined the Veteran's claimed conditions were less likely than not incurred in or caused by an in-service injury, event, or illness. Specifically, the VA examiner found the Veteran's general medical conditions were known disease entities that had no relationship to his active duty service. The VA examiner also found significant the Veteran's statement that he did not seek treatment for these conditions during service. Concerning the diagnosed headache disorder and GERD, the Board finds probative the absence of treatment records documenting treatment for these conditions, as well as the Veteran' assertions that these conditions were not present in or continued since separation from service. In addition, the July 2014 VA examiner opined the Veteran's pain in his knees and hands was most likely consistent with osteoarthritis from overuse and possibly contributed to by working on his knees. The VA examiner noted the in-service diagnoses of lacerations to the left knee and right but found significant the absence of any evidence of chronicity of such conditions. Further, the exit physical was silent for knee and elbow conditions. The VA examiner also noted review of the available records failed to document chronicity of the claimed condition since separation from service secondary to the history of lacerations of the left knee or right elbow. As such, the VA examiner opined it was less likely than not that the claimed condition was related to service. Here, the Board accords significant probative weight to the medical opinions of record, which are predicated on thorough reviews of the record and include the medical records and the Veteran's lay statements. Additionally, such opinions considered all of the pertinent evidence and provided complete rationales, relying on and citing to the records received. Moreover, the clinicians offered clear conclusions with supporting data. See Stefl, 21 Vet. App. 120, 124-25; Nieves-Rodriguez, 22 Vet. App. 295, 302-04. Furthermore, as noted above, the record does not contain treatment records reflecting complaints of or treatment for these conditions since the Veteran's separation from service. Further, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of osteoarthritis, headaches, and GERD are not simple questions that can be determined based on mere personal observations by a lay person, the Veteran's lay testimony is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. As such, the Board finds the etiologies of the Veteran's current osteoarthritis, headaches, and GERD do not lie within the range of common experience or common knowledge, but require special experience or special knowledge. Here, it is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of those disabilities. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, his statements regarding the etiology of such conditions are afforded no probative weight. During the pendency of the appeal, the Veteran has reported that he first experienced joint pain in 1990, 1991, 1993, and 1995. However, the record indicates physicians did not diagnose osteoarthritis of the hands and knees until 2005. On VA examination in July 2014, the Veteran denied treatment for his current pain. The Veteran also reported pain in his elbows after lifting heavy objects. Again, the VA examiner found the Veteran served until September 1994 following the in-service lacerations without evidence of chronicity of the joint pain. Additionally, the evidence does not reflect treatment for the Veteran's pain/osteoarthritis during the appeal period or post-service. Based on this evidence, the Board finds the Veteran's reports of continuity of symptomatology with respect to osteoarthritis of the knees and hands are not supported by the evidence, and the treatment records do not demonstrate the manifestation of osteoarthritis within one year of separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the appellant's observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility). In summary, the Board finds the Veteran's current osteoarthritis, headaches, and GERD are not shown to be causally or etiologically related to any disease, injury, or incident during service, and osteoarthritis did not manifest within one year of his separation from active duty. Consequently, service connection for such disorders is not warranted. As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for fatigue and joint pains due to undiagnosed illness is granted. Service connection for service connection for a disability manifested as fatigue and painful joints, to include as due to undiagnosed illness. REMAND Acquired Psychiatric Disorder Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). After a review of the record and psychological examination, the January 2011 VA examiner opined PTSD, generalized anxiety disorder, and panic disorder were not caused by or a result of fear of hostile military or terrorist activity. First, the VA examiner found the Veteran did not meet the DSM-IV diagnostic criteria for PTSD and that VA records showed the Veteran reported having symptoms prior to his entry into the military. Other records showed his symptoms began four to five years ago. The VA examiner noted the Veteran's current unemployment, possible homelessness, history of two DUI arrests, and loss of driver's license. Additionally, there was no evidence to suggest he had any mental health treatment during service or from the time of his discharge until 2004. Further, he was briefly treated in 2004 and then not again until 2010. Also of note were his entrance and discharge Report of Medical History forms, which were negative for any mental health problems. As a result, the examiner found there was no indication that military service exacerbated the pre-existing anxiety symptoms. Here, however, the Veteran's February 1989 report of medical examination is negative for any notation of an acquired psychiatric disorder, and as such, the Veteran is presumed to have been in sound condition upon entry into service. Therefore, clear and unmistakable must demonstrate that an acquired psychiatric disorder existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). First, the VA examiner's conclusory opinion is based on the exacerbation of pre-existing symptoms and does not specifically state that a disability clearly and unmistakably existed prior to service. If so, then the VA examiner should address whether any increase, if present, of the pre-existing disability was specifically due to the natural progress of the disease. In addition, if a disability did not pre-exist service, the VA examiner must provide an opinion, with rationale, as to whether any current acquired psychiatric disorder is related to service, to include consideration of any event in service (not merely the verified stressor) as well as the Veteran's lay statements. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Return the record to the January 2011 VA examiner for an addendum opinion addressing the etiology of any current acquired psychiatric disorder. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record and the Remand have been reviewed. If the June 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. a. For each diagnosed acquired psychiatric disorder, did such clearly and unmistakably pre-exist the Veteran's entrance into active duty in November 1989? b. If so, is there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? c. If there was an increase in the severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. d. If not, is it at least as likely as not (i.e., a 50 percent or greater probability) that the disorder(s) is directly related to service, to include the verified stressor of fear of hostile military or terrorist activity? A rationale should be provided for any opinion offered. 2. After completing the above and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claim remanded herein should be re-adjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs