Citation Nr: 19123771 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-57 266 DATE: March 29, 2019 ORDER Service connection for bilateral hearing loss is denied. Service connection for chronic fatigue syndrome (CFS) is denied. Service connection for a respiratory disorder, to include bronchitis, is denied. Service connection for a sinus disorder, to include sinusitis, is denied. Service connection for a skin disorder (tinea versicolor and eczema) is granted. REMANDED Service connection for sleep apnea is remanded. Service connection for fibromyalgia is remanded. Service connection for joint pain is remanded. FINDINGS OF FACT 1. The Veteran has not had a hearing loss disability in either ear at any time during or approximate to the pendency of the claim. 2. The Veteran has not had a diagnosis of chronic fatigue syndrome at any time during or approximate to the pendency of the claim, and there is no undiagnosed illness with chronic fatigue symptoms. 3. The Veteran has not had a diagnosis of a respiratory disorder, to include bronchitis, at any time during or approximate to the pendency of the claim; and there is no undiagnosed illness or medically unexplained chronic multisymptom illness with respiratory symptoms. 4. The Veteran has not had a diagnosis of sinusitis at any time during or approximate to the pendency of the claim; and there is no undiagnosed illness or medically unexplained chronic multisymptom illness with sinus symptoms. 5. The Veteran’s skin disorder, to include tinea versicolor and eczema, has been directly linked to his environmental exposures during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for chronic fatigue syndrome (CFS) are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for a respiratory disorder, to include bronchitis, are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for service connection for a sinus disorder, to include sinusitis, are not met. 38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for service connection for a skin disorder, to include tinea versicolor and eczema, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1990 to October 2000, including in the Southwest Asia theater of operations, followed by Reserve service through 2004. This appeal is from a June 2015 rating decision. Although the Veteran identified the skin disorder of tinea versicolor in his September 2014 claim, the evidence indicates an additional skin disorder of eczema. As the Veteran is not competent to identify the specific disorder and seeks service connection for his skin symptoms, his claim his recharacterized to include all current diagnoses. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Persian Gulf War veterans with qualifying service in the Southwest Asia Theater of Operations may receive service connection on a presumptive basis for a qualifying chronic disability that manifested during service or to a compensable degree after service and before December 31, 2021, due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. 38 U.S.C. §§ 1110, 1117, 1118; 38 C.F.R. § 3.317. 1. Service connection for bilateral hearing loss The Veteran contends that he has current hearing loss as a result of service. The Board concludes that the Veteran does not have a current hearing loss disability in either ear and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Testing during a May 2015 VA examination showed pure tone thresholds ranging from 5 to 25 decibels at all levels from 500 to 4000 Hertz, and a 100 percent speech discrimination score in both ears. There are no other hearing tests near the time of the Veteran’s claim or during the pendency of his appeal, and there is no assertion that his hearing has worsened in severity since the VA examination. The Court has recognized that pure tone thresholds above 20 decibels indicating some degree of hearing impairment. Hensley v. Brown, 5 Vet. App. 155 (1993). However, to be considered a disability for VA compensation, the pure tone thresholds must be 26 decibels or greater for at least three levels from 500 to 4000 Hertz, or 40 decibels at any level between 500 and 4000 Hertz; or the speech discrimination score using the Maryland CNC test must be below 94 percent. 38 C.F.R. § 3.385. Although the Veteran is competent to describe his noticeable hearing difficulties, he is not competent to identify whether he has actual hearing loss or whether any such impairment meets the VA disability criteria, as these questions are based on specific testing conducted by an audiologist. As the VA disability criteria are not met, service connection cannot be awarded. There is no reasonable doubt to be resolved, and the claim must be denied. 2. Service connection for chronic fatigue syndrome (CFS) The Veteran contends that he has chronic fatigue syndrome (CFS) due to his service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Although CFS would be a medically unexplained chronic multisymptom illness if diagnosed, there is no undiagnosed illness for his fatigue symptoms; thus, he does not qualify for the Persian Gulf War presumption. 38 C.F.R. § 3.317. In his September 2014 claim (VA 21-526EZ), the Veteran identified sleep apnea, CFS, and sleep disturbances as claimed conditions. In his October 2017 substantive appeal (VA Form 9), the Veteran complained of extreme fatigue and sleep problems, along with other symptoms related to his other claims, and stated that he has on and off episodes with improvement and worsening of symptoms and doctors cannot relate to what he is experiencing or give a clinical diagnosis. In an August 2017 statement, the Veteran’s wife indicated that she is a nurse and that they have been married since July 1995, during his active service. She indicated that she noticed him having sleep problems during service, and she believed that this negatively impacted his overall health, including fatigue. She urged him to seek treatment, and he was eventually diagnosed with sleep apnea after service. The Veteran’s wife stated that she believes his various conditions are due to his exposures and experiences during service in Southwest Asia. The Veteran has not identified any post-service treatment or diagnosis of CFS, and the only VA treatment record is his Persian Gulf registry evaluation in 2015. An October 2015 private sleep study noted that the Veteran’s wife had noted loud snoring and other symptoms while he was in bed at night, and that he was still tired after six hours in bed. The study diagnosed severe obstructive sleep apnea (OSA). A June 2017 private mental health evaluation noted sleep problems with nightmares that started in service, and that the Veteran had current sleep problems even with use of a CPAP for his sleep apnea. He complained of being tired and having less energy or fatigue during the daytime. The provider diagnosed posttraumatic stress disorder (PTSD) based on these complaints and other symptoms. An August 2017 VA examiner also diagnosed PTSD with symptoms including chronic sleep impairment. The Veteran has been granted service connection for PTSD and a rating based on symptoms including sleep impairment. An August 2017 VA examiner concluded that there is no diagnosis of CFS, and noted that the Veteran is obese and has a diagnosis of sleep apnea and uses a CPAP. The examiner explained that the medical diagnostic criteria for CFS include substantial reduction in occupational, education, social, and personal activities, but the Veteran does not have those manifestations. The examiner further explained that the exclusionary criteria for CFS include any medical condition explaining fatigue. He opined that the Veteran’s subjective symptoms of fatigue are more plausibly explained by his obese body habitus, in that he has a body max index (BMI) of 32, where normal BMI is less than 25, which is medically obese. Although the Veteran is competent report noticeable symptoms such as fatigue, feeling tired, or having less energy, he is not competent to provide a diagnosis of CFS. This question requires medical expertise and interpretation due to the complex nature of the condition, which is a diagnosis of exclusion, as noted by the VA examiner. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s wife has some medical training as a nurse; however, she did not state that he has CFS; in fact, she indicated that was diagnosed with sleep apnea, which is addressed as a separately claimed service connection issue. Moreover, to the extent that she asserts that the Veteran has CFS, no rationale was provided for any such opinion. The examiner’s opinion outweighs any such opinion because it includes a rationale based on medical expertise and the Veteran’s history. Furthermore, although the Veteran’s wife believes his fatigue is due to service, the evidence must first establish a diagnosis of CFS to warrant service connection. In summary, the private medical evidence and VA examiner’s opinion establish that the Veteran’s fatigue, lack of energy, and feeling tired have been attributed to his sleep impairment due to diagnosed PTSD and sleep apnea, and/or to his obesity. He has not had a diagnosis of CFS at any time during or approximate to the pendency of the claim, and there is no undiagnosed illness with chronic fatigue symptoms. There is no reasonable doubt to resolve, and the claim must be denied. 3. & 4. Service connection for a respiratory disorder, to include bronchitis, and for a sinus disorder, to include sinusitis The Veteran contends that he has respiratory and sinus disorders due to his service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Board concludes that the Veteran does not have a current diagnosis of a respiratory disorder, to include bronchitis, or a sinus disorder, to include sinusitis, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. There is also no undiagnosed illness or medically unexplained chronic multisymptom illness to account for his respiratory or sinus symptoms; thus, he does not qualify for the Persian Gulf War presumption. 38 C.F.R. § 3.317. In September 2014, the Veteran identified claims for a respiratory condition from the Gulf War in March 1991, as well as for allergic rhinitis and a sinus condition. The Veteran has already been granted service connection for allergic rhinitis. Service treatment records include multiple notations of cough, sinus pressure, nasal or chest congestion, tightness in the chest, and/or rhinorrhea (or runny nose). These were generally diagnosed as upper respiratory infection (URI), rhinitis, or viral syndrome. See records in October 1990, October 1991, December 1994, December 1996, December 1997, April 1999, December 1999. A diagnosis of sinusitis was given in September 1995, as indicated by the VA examiner, and again in April 2000. During his July 2000 separation examination, the Veteran reported frequent ear, nose, or throat trouble, chronic or frequent colds, and sinusitis, which the examiner identified together as sinus problems, as well as chronic cough. The above records confirm symptoms and diagnoses during the Veteran’s service. However, during a subsequent June 2001 enlistment examination for the Reserve, the Veteran expressly denied all such symptoms. He also denied having a persistent cough or chest pain in an August 2002 service evaluation, and he denied any physical problems in the last 12 months in a May 2003 annual certificate of physical condition. These records are highly probative as to the existence of any symptoms at those times because they were contemporaneous in time to the events. They indicate that, although the Veteran had frequent symptoms during active duty, he did not have them afterwards from June 2001 until at least May 2003. The Veteran has not identified any post-service treatment or diagnosis for a respiratory or sinus condition, and the only VA treatment record is his Persian Gulf registry evaluation in 2015. His private provider, Dr. T submitted letters in January 2016 and August 2017 indicating treatment for allergic rhinitis with episodes of nasal congestion and sinus pressure. Dr. T did not indicate any other diagnosed respiratory disease or sinus condition. During VA examinations in April 2015, the Veteran reported that he first noticed a stuffed or runny nose in the 1990s and having frequent coughing since service. He indicated that he was diagnosed with allergic rhinitis and was currently undergoing desensitization treatment, which is consistent with Dr. T’s letters. The Veteran denied a diagnosis of chronic bronchitis or any pulmonary function tests (PFTs). The examiner noted that chest X-rays in October 2014 showed normal pulmonary vascularity and lungs. The examiner indicated that the only current condition was rhinitis, and that there was no current diagnosis of a respiratory condition or sinusitis. The examiner further opined that there was no current bronchitis, based on the medical records and examination and the Veteran’s reported history. During a December 2017 VA examination, the Veteran again reported a diagnosis of allergic rhinitis with symptoms that had started in the 1990s, and that he had been having desensitization therapy. The examiner noted one episode of acute bacterial sinusitis in September 1995, but no recurrent or acute chronic sinusitis. Although the Veteran is competent report noticeable symptoms that affected his breathing or sinuses at times, he is not competent to provide a diagnosis of a current respiratory disease or sinusitis. This question requires medical expertise and interpretation due to the complex nature of the conditions and potentially overlapping symptoms between respiratory, sinus, and rhinitis disorders, as reflected in his medical records. Jandreau, 492 F.3d at 1377. In summary, the medical evidence indicates the Veteran’s respiratory and sinus symptoms resolved after service or are attributed to his already service-connected diagnosis of allergic rhinitis. He has not had a diagnosis of a respiratory disorder, to include bronchitis, or of a sinus disorder, to include sinusitis, at any time during or approximate to the pendency of the claim. There is also no undiagnosed illness or medically unexplained chronic multisymptom illness with respiratory or sinus symptoms. There is no reasonable doubt to be resolved, and the claims are denied. 5. Service connection for a skin disorder, to include tinea versicolor or eczema The Veteran contends that he has a current skin disorder due to environmental exposures while serving in the Persian Gulf. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that he has current disabilities diagnosed as tinea versicolor or eczema, and they have been medically linked directly to his experiences in service. 38 C.F.R. § 3.303. The Veteran was treated for tinea versicolor on his back during service in January 1996, but he denied any skin problems in his July 2000 separation examination. During April 2015 and August 2017 VA examinations, he reported having off and on tinea versicolor since service. A January 2015 VA record for the Persian Gulf registry noted hyperpigmented skin on the chest and a fine rash on the back. Tinea versicolor is defined as a chronic disorder characterized by macular patches of various sizes and shapes, with colors from white in pigmented skin to tan or brown in pale skin. Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). The 2015 VA examiner stated that tinea versicolor is a fungal infection, but gave no diagnosis because the Veteran had no symptoms at the time of the examination. The 2017 VA examiner noted the complaints of off and on tinea versicolor, but no current symptoms and no visible skin condition upon examination, and that a private provider indicated in January 2016 that eczema symptoms had resolved. This examiner also opined that there was no current skin diagnosis. In January 2016 and August 2017 letters, the Veteran’s private provider stated that he had been treating the Veteran for episodic bouts of atopic eczema. He indicated that the eczema symptoms had resolved in 2016, but that the Veteran continued to have occasional bouts of eczema between 2016 and 2017. The provider linked this condition to the Veteran’s environmental exposures during service, explaining that he did not have cutaneous (skin) symptoms prior to such service and his exposures toxic petrochemicals during service strongly influenced the development of his current day symptoms. The VA examiners’ opinions of no current diagnosis have low probative value because they did not consider the Veteran’s full history, including his competent reports of recurrent observable symptoms despite a lack treatment. The private provider also noted continued symptoms in the letter after the last VA examination. Additionally, although the 2017 examiner stated that tinea versicolor was not related to a specific environment exposure event while in Southwest Asia, no rationale was provided. The 2016 and 2017 letters from the private provider are more probative; they directly linked the current skin condition to environmental exposures during service, with a rationale based on the available history. In summary, after resolving reasonable doubt in the Veteran’s favor, his currently diagnosed skin disorders of tinea versicolor and eczema have been directly linked to service. Therefore, service connection is warranted, and the claim is granted. REASONS FOR REMAND 1. Service connection for sleep apnea The Board cannot make a fully-informed decision on this issue because the evidence is insufficient to determine whether the Veteran’s sleep apnea had its onset during service or is otherwise related to service. A VA examination or medical opinion was not provided for this issue, but the Veteran and his wife have reported that he first had sleep problems, including snoring, during service. An October 2015 private sleep study that diagnosed obstructive sleep apnea noted complaints of loud snoring, twitching of the legs or feet, breathing pauses, sleep talking, becoming very rigid or shaking, and other symptoms. A June 2017 private mental health evaluation noted the Veteran’s reports of sleep problems, nightmares, twiching his arms and pushing or kicking out in his sleep, that started while in service. In an August 2017 statement, the Veteran’s wife reported that she noticed him having problems during service including loud snoring, being very restless, talking or yelling in his sleep, and kicking his legs while he was in service. An October 1991 service treatment record noted difficulty sleeping and other symptoms, diagnosed as general malaise of “?” etiology. The Veteran otherwise denied frequent trouble sleeping including at his July 2000 separation examination. The Veteran’s wife also indicated that she is a nurse and she collected information, including records of oxygen levels while asleep using a pulse oximetry machine and monitoring his breathing pauses. He eventually sought treatment and was diagnosed with sleep apnea. Any such records of testing may assist his claim. As there is an indication that the current sleep apnea may be related to reported symptoms in service as separate from his service-connected PTSD, a VA examination is warranted. 2. & 3. Service connection for joint pain and fibromyalgia The Board cannot make a fully-informed decision on these issues because the medical evidence is insufficient to determine whether the Veteran’s joint and muscle pain has a diagnosable cause or whether he has fibromyalgia. Fibromyalgia is medically defined as pain and stiffness in the muscles and joints that either is diffuse or has multiple trigger points. Dorland’s Illustrated Medical Dictionary 711 (31st ed. 2007). Under 38 C.F.R. § 3.317, symptoms due to an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), including fibromyalgia, may be service-connected on a presumptive basis if they manifest to a compensable degree after Persian Gulf War service in the Southwest Asia theater of operations, even if there is no other link to service. The record includes two August 2017 VA examination reports by the same examiner, one using an arthritis template and one using a fibromyalgia template. In both reports, the Veteran reported that after he got out of service he started feeling things he could not understand, including constant dull pain with popping in the wrists, shoulders, knees, back, neck, and his. He reported taking Advil and that his doctor gave him Baclofen for his back. In the arthritis report, the examiner stated that the Veteran claimed non-arthritis joint pain, he had never been evaluated for a joint pain condition, and found no diagnosis or undiagnosed illness, stating that there was no treatment for 17 years since service “to support an undiagnosed illness to include joint pain.” The examiner noted that the Veteran complained of ankle pain in his July 2000 separation examination, although he did not complain of ankle pain currently. The Board notes that the separation examination also noted the Veteran’s reports of having cramps in his legs while standing guard, as well as a trick or locked knee. In the fibromyalgia report, the VA examiner stated that the Veteran denied a diagnosis of fibromyalgia and there was no current diagnosis or undiagnosed illness, noting that he had never been evaluated for the condition. Similarly, the Veteran reported in his October 2017 substantive appeal that he had been having on and off episodes of joint pain and other symptoms, with improvement and worsening of symptoms, and his doctors could not relate to what he was experiencing or give a clinical diagnosis. The Veteran’s wife since 1995 also reported in an August 2017 statement that he was having muscle pains. The lack of treatment or a diagnosis so far does not necessarily mean that the Veteran’s joint or muscle pains are not due to an undiagnosed illness or MUCMI, to include fibromyalgia. For these purposes, a MUCMI 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). The Court has clarified that an illness is considered a MUCMI where either its etiology or its pathophysiology is inconclusive, but not where both the etiology and the pathophysiology are partially understood. Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). Furthermore, the determination of whether a condition is a MUCMI should be based on an individual veteran’s circumstances, rather than the illness as it is understood in the general public. Id. at 91. In this case, no X-rays or other tests or studies were conducted for the VA examination in an effort to determine the underlying cause of the Veteran’s joint or muscle pains, and it is unclear if any studies or tests were conducted previously. The Veteran is competent to report joint pain, even if he did not always seek treatment. A June 2017 private mental health record noted intermittent pain in the foot and back. However, he has not provided or authorized VA to obtain any treatment records where he discussed joint pain or was given medication by his providers, as referenced in the VA examination and his substantive appeal. As these records may be relevant or help his claim, they should be requested. Additionally, the Veteran’s wife indicated in an August 2017 letter that she has medical training as a nurse, and she believes the Veteran’s sleep problems later diagnosed as sleep apnea negatively affected his health, including muscle pains. Secondary service connection is available if a condition is proximately caused or worsened beyond its natural progression (aggravated) by a service-connected disability. 38 C.F.R. § 3.310. The Veteran’s wife also opined that the Veteran’s conditions are due to his experiences and exposures while serving in Southwest Asia. A direct link to service may established even if a presumption does not apply. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1999). A medical opinion is needed because sleep apnea is not yet service-connected and is being remanded herein, and the Veteran’s wife’s medical opinions are not supported by a rationale. The matters are REMANDED for the following action: 1. Ask the Veteran to provide any records recording his oxygen levels or breathing pauses prior to October 2015, as indicated in his wife’s August 2017 statement. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment concerning joint or muscle pain, and make reasonable efforts to obtain identified records. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner should opine whether the disability is at least as likely as not related to an in-service injury, event, or disease. The examiner should indicate whether the reported sleep symptoms, along with snoring and other symptoms, during service are as likely as not related to sleep apnea, in addition to or as separate from the service-connected PTSD. The examiner should consider lay and medical evidence. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. After any available identified records have been obtained, schedule the Veteran for an examination by an appropriate clinician determine whether there is an underlying diagnosis for his muscle and joint pain in the wrists, shoulders, knees, back, neck, and hips. Unless available testing establishes a current diagnosis for each affected joint, X-rays of the identified joints or other appropriate testing should be conducted to determine if there is an underlying diagnosis. The examiner should identify any current diagnosis for each affected joint or muscle pain, to include fibromyalgia. The examiner is asked to offer opinions as to the following: a. If there is an underlying diagnosis other than fibromyalgia, the examiner should opine whether it is at least as likely as not that the current diagnosis is directly related to the Veteran’s service. The examiner should consider environmental exposures in the Southwest Theater of Operations in the Persian Gulf, and notations of cramps in his legs while standing guard and a trick or locked knee in his July 2000 separation examination. b. The examiner should also opine whether it is at least as likely as not that any current diagnosis was (i.) proximately caused or (ii.) was aggravated (meaning permanently worsened beyond its natural progression) by the Veteran’s sleep apnea. c. If there is no current diagnosis, to include fibromyalgia, the examiner should opine whether it is at least as likely as not that there is a medically unexplained chronic multisymptom illness (MUCMI) to account for the Veteran’s joint and muscle pains, after considering his history and any indicated testing or medical records. The examiner should indicate whether either the etiology or the pathophysiology of the condition is inconclusive, based on consideration of the Veteran’s individual circumstances, in order to show a MUCMI. The examiner should consider lay and medical evidence. (Continued on the next page)   The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Wheatley