Citation Nr: 19106989 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 15-08 104 DATE: January 29, 2019 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for fibromyalgia is granted. REMANDED Entitlement to service connection for a bilateral eye condition is denied. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a respiratory condition, claimed as asbestos exposure, is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected chronic maxillary sinusitis is remanded. Entitlement to a compensable disability rating for service-connected gastroenteritis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea; his symptom of sleep impairment and unrefreshed sleep is service-connected. 2. The Veteran manifests fibromyalgia controlled by medication, which is deemed presumptively due to his service in the Persian Gulf. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for entitlement to service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.317, 4.71a, Diagnostic Code 5025 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from October 1989 to October 1993. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). The Veteran, his mother, and his wife testified at a videoconference hearing before the undersigned in April 2018. A transcript of the proceeding is of record. The issues of entitlement to service connection for panic attacks, posttraumatic stress disorder (PTSD), anxiety, and depression were denied by the AOJ in its June 2012 rating decision and subsequently included in the Veteran’s Notice of Disagreement. However, the AOJ later granted service connection for PTSD with anxiety disorder (encompassing depression and panic attacks) in a January 2015 rating decision. As this represents a complete grant of the Veteran’s claim, this issue is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran for disability due to a qualifying chronic disability, provided that certain requirements are met. For purposes of 38 C.F.R. § 3.317, 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(e)(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 multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(b) lists the signs or symptoms of undiagnosed illnesses and medically unexplained chronic multisymptom illnesses. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for sleep apnea The Veteran filed his claim for entitlement to service connection for sleep apnea in May 2011. He contended at that time that his sleep apnea was caused by his military service. He noted, though, that this problem did not manifest until after he was discharged. However, the Veteran has never been diagnosed with sleep apnea. His VA treatment records and private treatment records do not make note of a diagnosis for sleep apnea. In February 2013, he speculated that he may have sleep apnea, and a sleep study was conducted. A March 2013 treatment record, however, states that the sleep study was negative for any problems. He was provided a VA examination for sleep apnea, where the examiner stated that the Veteran did not have, nor has he ever had, sleep apnea. He made note, however, that the Veteran has sleep disturbance related to his service-connected PTSD. During the September 2018 hearing, the Veteran testified he was not sure that he had sleep apnea “anymore” and does not use a CPAP machine. A more recent private treatment record identified unrefreshing sleep as a symptom of fibromyalgia. Based on the evidence of record, the Board must deny the Veteran’s claim for entitlement to service connection for sleep apnea, as there is no current diagnosis for this condition. It should also be noted that the Veteran’s chronic sleep impairment was considered when granting service connection for PTSD, and his diagnosis of fibromyalgia (awarded below) contemplates unrefreshed sleep. As such, the Veteran’s specific claim for sleep apnea is denied. 2. Entitlement to service connection for fibromyalgia The Veteran contends that his muscle pain, later diagnosed as fibromyalgia, was caused by his military service. He received a VA examination for this condition in November 2014; however, the examiner indicated at that time that the Veteran did not have, nor did he ever have, a diagnosis of fibromyalgia. He subsequently opined that it was less likely than not that this condition was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In December 2014, the Veteran was afforded a second VA examination for fibromyalgia, where his diagnosis of fibromyalgia appeared to be confirmed. The Veteran contended at that time his symptoms began in early 1992, but his condition was not formally diagnosed until 1996. The Veteran has also provided recent private treatment records showing that medication is prescribed to control fibromyalgia. The RO denied the claim reasoning as follows: “[s]ervice connection for fibromyalgia (also claimed as muscle pain) is denied because this disability is determined to result from a known clinical diagnosis of unknown etiology, which neither occurred in nor was aggravated by service.” However, the Veteran is a “Persian Gulf War veteran” who manifests a “qualifying chronic disability” for presumptive service connection purposes – fibromyalgia. See 38 C.F.R. § 3.317(a)(2)(i)(B)(2). He has been prescribed medication for control of fibromyalgia which meets the criteria for a compensable 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. As such, service connection for fibromyalgia as a disease presumptively due to Persian Gulf service has been established. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The claim is, therefore, granted. REASONS FOR REMAND Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. During the Veteran’s April 2018 hearing, his representative suggested there were missing private treatment records. On remand, the Board will seek to obtain these documents. 1. Entitlement to service connection for bilateral eye disability is remanded. The Veteran contends that he has a bilateral eye condition and attributes it to an in-service event. Specifically, he testified that during service, he got a product similar to paint thinner in his eyes and since then, his eyes have been burning and itching. He also explains they feel “scratchy” at times. VA treatment records and private treatment records are silent for any diagnoses for either of the Veteran’s eyes. With the exception of a September 2012 emergency department treatment note describing complaints of pressure behind the Veteran’s right eye following a blunt head injury, there do not appear to be negative references pertaining to the Veteran’s eyes. In December 2014, he received a VA examination for his eyes; at that time, the only diagnosis he received was “bilateral dry eyes,” though it was also noted he had a lacrimal gland and lid disorder. A review of the Veteran’s STRs reveals that the Veteran did not report any trouble with his eyes on his separation Report of Medical History. However, his STRs also reveal that he reported to the emergency department after getting aircraft cleaning soap in his left eye in June 1991. At that time, the physician noted there was no damage to the left eye evident, no foreign bodies, and no draining except for moderate tearing. He also noted slightly blurred vision and redness, but no swelling. The Board will accept this as a qualifying in-service event for the purposes of service connection. During the December 2014 VA examination, the examiner opined it was less likely than not that the Veteran’s eye condition occurred in or was caused by service. He explained that while there was treatment in June 1991 when the Veteran got soap in his left eye, there was no residual disability. He continued that the Veteran’s bilateral dry eyes are a meibomian gland dysfunction and is unrelated to the irritation in 1991. The Board finds that additional opinion is necessary. In this respect, the Veteran’s VA clinic records reflect a diagnosis of aniscoria which was not considered by the VA examiner. The Veteran also testified to being diagnosed with macular degeneration which is not reflected in VA clinic records. However, as discussed above, all available private medical records have not been associated with the claims folder. 2. Entitlement to service connection for a left shoulder condition is remanded. The Veteran contends that when he was in service working on the flight deck, he was required to carry chains on his shoulders that weighed at least 100 pounds. He alleges that because of this, he presently experiences bilateral shoulder pain. He underwent a VA examination in November 2014, where it was observed that he had degenerative changes at the acromioclavicular joints in both shoulders. However, the examiner opined it was less likely as not that the Veteran’s bilateral shoulder arthritis was related to a specific exposure event experienced during service in Southwest Asia, rationalizing that degenerative joint disease is caused by normal “wear and tear, aging, or injury.” Elsewhere in this examination, the physician noted the Veteran did not “follow with a doctor for this complaint, nor does he ha[ve] a diagnosis,” contradictory to his prior findings. In December 2014, the Veteran was afforded a second VA examination for his shoulders, where bilateral degenerative joint disease was diagnosed a second time. However, this examiner unfortunately failed to provide an opinion as to the etiology for his bilateral shoulder degenerative joint disease. As such, the Board will remand to obtain an etiological opinion and request that the examiner consider the Veteran’s account of the specific in-service event when making a determination. 3. Entitlement to service connection for a right shoulder condition is remanded. The Veteran contends that when he was in service working on the flight deck, he was required to carry chains on his shoulders that weighed at least 100 pounds. He alleges that because of this, he presently experiences bilateral shoulder pain. He underwent a VA examination in November 2014, where it was observed that he had degenerative changes at the acromioclavicular joints in both shoulders. However, the examiner opined it was less likely as not that the Veteran’s bilateral shoulder arthritis was related to a specific exposure event experienced during service in Southwest Asia, rationalizing that degenerative joint disease is caused by normal “wear and tear, aging, or injury.” Elsewhere in this examination, the physician noted the Veteran did not “follow with a doctor for this complaint, nor does he ha[ve] a diagnosis,” contradictory to his prior findings. In December 2014, the Veteran was afforded a second VA examination for his shoulders, where bilateral degenerative joint disease was diagnosed a second time. However, this examiner unfortunately failed to provide an opinion as to the etiology for his bilateral shoulder degenerative joint disease. As such, the Board will remand to obtain an etiological opinion and request that the examiner consider the Veteran’s account of the specific in-service event when making a determination. 4. Entitlement to service connection for a lower back disability is denied. The Veteran contends that he has a lower back condition that is related to an in-service injury. While he alleges he received treatment for his back in service, he did not suggest an in-service event that purportedly caused his back condition. The Board speculates the Veteran’s account of carrying chains on his shoulders is also applicable to his claim for service connection for a lower back disability. As such, the Board will remand to obtain an etiological opinion and request that the examiner consider the Veteran’s account of the specific in-service event when making a determination. 5. Entitlement to service connection for a respiratory condition, claimed as asbestos exposure, is remanded. The Veteran contends that he has a respiratory condition as a result of his exposure to asbestos while in service. In May 2012, he submitted a statement suggesting that his exposure to asbestos occurred on “numerous aircraft carriers;” he further reported that due to his height, he touched pipes and insulation that were close to the ceiling. Alternatively, he speculates that his exposure to the chemical trichlorofluoromethane during service may have caused his respiratory condition. The record reflects that the Veteran has not received a VA examination for any respiratory condition, to include exposure to asbestos and trichlorofluoromethane. Furthermore, there are no medical opinions of record that suggest an etiology. The Board will therefore remand to afford the Veteran an opportunity to present for an examination and to obtain an opinion as to the etiology of any respiratory condition. 6. Entitlement to service connection for a skin condition is remanded. The Veteran contends that he has a skin condition that is etiologically related to his military service. Specifically, he reports symptoms of chronic itching and rashes that began within one year of his discharge from the Navy and suggests it may be associated with an undiagnosed illness of the Gulf War. A VA examination was performed in November 2014, which ultimately failed to diagnose him with any skin condition. That examiner opined it was less likely as not that the disability is related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. However, another examination was performed in December 2014, where he was diagnosed with urticaria. This examiner unfortunately failed to provide an opinion as to the etiology for his urticaria. Notably, the Veteran testified that he “lived in jet fuel” for months during service and was exposed to chemicals. The record does not contain an acceptable opinion as to the etiology of his urticaria, nor does it contain an opinion considering his alleged exposure to jet fuel or other chemicals when assessing etiology. As such, the Board will remand to obtain an opinion that considers these points. 7. Entitlement to a disability rating in excess of 10 percent for service-connected chronic maxillary sinusitis is remanded. The record reflects that the Veteran has not had a VA examination for his service-connected chronic maxillary sinusitis since October 2011 when he initially filed his claim for service connection. The Veteran testified during his April 2018 hearing that he has flare ups of this condition nearly every day. He explained that most of the time, his sinuses drain during the night, causing him to wake up and vomit. He endorsed experiencing headaches and toothaches as a result of his sinusitis, and has frequented the VA emergency room to receive treatment so he can breathe. As it has been seven years since an examination was performed for this condition, the Board will remand to afford the Veteran the opportunity to present for a new examination that assesses the current severity of his chronic maxillary sinusitis. 8. Entitlement to a compensable disability rating for service-connected gastroenteritis is remanded. The record reflects that the Veteran has not had a VA examination for his service-connected gastroenteritis since October 2011 when he initially filed his claim for service connection. The Veteran testified during his April 2018 hearing that his condition prevents him from eating certain types of food, including dairy or large amounts of folic acid. He suffers from diarrhea and vomiting, with episodes happening about once a month to once every two months. As it has been seven years since an examination was performed for this condition, the Board will remand to afford the Veteran the opportunity to present for a new examination that assesses the current severity of his gastroenteritis. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from January 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for any of the conditions presently on appeal. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of all current eye disorders. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically identify all current eye disorders including dye eye syndrome, aniscoria and the claimed diagnosis of macular degeneration and provide opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current eye disorder occurred in or is otherwise etiologically related to the Veteran’s military service, to include his service in Southeast Asia and the instance of treatment for left eye injury in June 1991. The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that his eye injury in 1991 and exposures to asbestos, jet fuel and/or trichlorofluoromethane resulted in any current eye disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. The Veteran should be afforded an orthopedic VA examination in order to determine the current nature and etiology of his left, shoulder, right shoulder and low back condition(s). The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a left shoulder, right shoulder and/or low back disabilities including consideration of the prior diagnoses of right shoulder tendinitis and rotator cuff injury, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed disorders occurred in or is otherwise etiologically related to the Veteran’s military service, to include holding heavy chains on his shoulders. The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that right shoulder, left shoulder and/or low back disabilities are due to the rigors of his military duties. In so doing, the examiner should accept as fact that the Veteran was required to carry 100-pound chains on his shoulders during service. The examiner should consider the following: • the Veteran’s STRs which include his denial of a painful or “trick” shoulder as well as recurrent back pain at separation; • the Veteran’s treatment for a pulled right shoulder in March and September 1998, and right shoulder rotator cuff injury and tendinitis in 2009; • the Veteran’s July 2011 Correspondence; • the November 2014 and December 2014 VA examinations; • and the April 2018 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his respiratory condition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a respiratory condition, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such respiratory condition occurred in or is otherwise etiologically related to the Veteran’s military service, to include exposure to asbestos, the Persian Gulf War environment, trichlorofluoromethane and/or jet fuel. The examiner should discuss whether there is any medical reason to accept or reject the Veteran’s belief that he manifests a respiratory disorder due to environmental exposures during service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his skin condition. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate all manifested skin disorders including consideration of urticaria and provide opinion whether the skin disorder(s) at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran’s military service, to include his exposure to jet fuel, asbestos, the Persian Gulf War environment, trichlorofluoromethane and/or jet fuel.. The examiner should consider the following: • the Veteran’s STRs; • the Veteran’s July 2011 Correspondence; • private treatment records associated with the file in September 2011; • the November 2014 and December 2014 VA examinations; • VA treatment records associated with the file in January 2015; • the April 2018 hearing testimony; and • private treatment records associated with the file in October 2018. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Afford the Veteran an examination to determine the current severity of chronic maxillary sinusitis. The examiner should consider the April 2018 hearing testimony. 8. Afford the Veteran an examination to determine the current severity of gastroenteritis. The examiner should specifically identify all symptoms associated with gastroenteritis including whether the Veteran’s reported symptoms of vomiting, fever, diarrhea, gastritis and/or food intolerance are symptoms associated with service-connected gastroenteritis. The examiner should consider the following: • the Veteran’s STRs; • private treatment records associated with the file in September 2011; • the October 2011 VA examination; • VA treatment records associated with the file in January 2015; • the April 2018 hearing testimony; and • private treatment records associated with the file in October 2018 which include the results from an esophagogastroduodenoscopy. 9. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel