Citation Nr: 19158463 Decision Date: 07/29/19 Archive Date: 07/29/19 DOCKET NO. 16-39 979 DATE: July 29, 2019 ORDER Service connection for loss of auricle is dismissed. Service connection for lumbar strain with degenerative joint disease is granted. Service connection for dizziness is granted. Service connection for diverticulosis, to include as secondary to service-connected irritable bowel syndrome (IBS) is granted. Service connection for deep vein thrombosis is granted. Service connection for residuals of a pulmonary embolism is granted. The reduction of Department of Veterans Affairs (VA) compensation benefits due to the receipt of 39 days of drill pay during Fiscal Year 2013 was improper and restoration is warranted. REMANDED Service connection for fatty liver is remanded. FINDINGS OF FACT 1. In April 2019, before the Board promulgated a decision, the Veteran expressed at the Board hearing his desire to withdraw from appellate review the issue of service connection for loss of auricle. 2. The Veteran’s lumbar strain with degenerative joint disease is related to his in-service low back pain. 3. The Veteran manifests dizziness of an unknown cause. 4. Symptoms of the Veteran’s diverticulosis are reasonably shown to have been aggravated by his service-connected IBS. 5. The evidence is in equipoise as to whether the Veteran’s deep vein thrombosis and pulmonary embolism were caused by service-connected sleep apnea, IBS, diverticulosis, and blood loss. 6. In reducing compensation benefits due to the receipt of 39 days of drill pay during Fiscal Year 2013, the Regional Office (RO) did not provide the Veteran a requested predetermination hearing. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of an appeal involving service connection for loss of auricle have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for lumbar strain with degenerative joint disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for dizziness have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for service connection for diverticulosis, to include as secondary to service-connected IBS, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310(a). 5. The criteria for service connection for deep vein thrombosis, to include as secondary to service-connected sleep apnea, IBS, and diverticulosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310(a). 6. The criteria for service connection for pulmonary embolism, to include as secondary to service-connected sleep apnea, IBS, and diverticulosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310(a). 7. The reduction of compensation benefits due to the receipt of 39 days of drill pay during Fiscal Year 2013 was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1990 to October 1990, November 1990 to August 1991, and from December 1991 to May 1992. The record also indicates that the Veteran served periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the National Guard. The Veteran testified before the undersigned Veterans Law Judge during an April 2019. This matter is on appeal from December 2013 and June 2014 rating decisions and a July 2015 administrative decision by the VA RO in Nashville, Tennessee that adjusted the Veteran’s compensation to recoup payment for 39 days of drill pay during Fiscal Year 2013. Dismissal 1. Service connection for loss of auricle With regard to the Veteran’s claim involving service connection for loss of auricle, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the April 2019 Board hearing, before the Board promulgated a decision in this matter, the Veteran testified that he wished to withdraw from appellate consideration his claim involving service connection for loss of auricle. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claim for entitlement to service connection for loss of auricle, and it is therefore dismissed. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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). 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). 2. Service connection for lumbar strain with degenerative joint disease The Veteran contends that his lumbar spine disability began in service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A September 2018 VA treatment records shows the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. The Veteran testified at his April 2019 hearing that his back pain began in service after days of heavy lifting as a mechanic. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a December 2012 VA Gulf War general examination. The examiner diagnosed low back strain and degenerative joint disease of the lumbar spine. The examiner noted that there was a clear and specific etiology and diagnosis for the low back condition and it was at least as likely as not caused by or incurred during service time in Southwest Asia. However, the examiner later noted that low back pain that was insidious in nature began during training in December 2010. The evidence in favor of the claim includes Dr. C.N.B.’s April 2019 private opinion. Dr. C.N.B. opined service connection for the Veteran’s lumbar spine was directly related to service mechanic work and lifting which caused out of proportion spine degenerative disc disease consistent with the prior examiner’s opinion. Dr. C.N.B. supported this opinion with medical literature and further noted that the time lag between the Veteran’s service lifting injuries and his development of advanced for age degenerative disc disease was consistent with known medical principles and the natural history of the disease. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar spine disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for dizziness The Veteran is seeking service connection for dizziness, including as due to environmental hazards from service in Southwest Asia, or as an undiagnosed illness. The law provides for compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period and by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. That is, if an undiagnosed chronic symptom or illness is not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). A “Persian Gulf Veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). In this case, the Veteran’s service records reflect he served in the Southwest Asia Theater during the Persian Gulf War. Accordingly, the Veteran is a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if the Veteran is found to have a qualifying chronic disability. The term “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: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of § 3.317, 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. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of § 3.317, “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). For purposes of § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: fatigue; signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Turning to the facts of the case, the Veteran is seeking service connection for dizziness. Service treatment records reflect that he sought treatment or otherwise made complaints of dizziness during active duty service. In early April 1991 the Veteran reported he had fainted, and later in Aril 1991 the Veteran reported dizziness and fainting spells. He was advised to drink more water. On his March 1994 Report of Medical History, the Veteran noted dizziness or fainting spells and periods of unconsciousness; however, his Report of Medical Examination noted no significant interval history. Post-service medical records reflect the Veteran’s complaints of dizziness or vertigo on several occasions. However, the physicians do not relate his symptoms to active duty service, nor are they able to provide a cause for his symptoms. See VA Treatment Records dated August 2012, May 2014, March 2017, and September 2018. The Veteran has not been afforded a VA examination specifically for his dizziness. At a December 2012 VA examination, the examiner noted that the Veteran had dizziness when he lifted things due to a respiratory disorder (residuals of a pulmonary embolism). Also of record is an April 2019 opinion from Dr. C.N.B. He found that the Veteran’s dizziness was of unknown cause. In addition, Dr. C.N.B. opined that it was as likely as not that the Veteran’s dizziness for which no cause had been found was related to his exposure to neurotoxins from burn pits in service. Based on the forgoing, the Board finds that service connection for dizziness is warranted. Here, the evidence reflects that the Veteran has competently and credibly reported such symptoms since service. However, over the years, clinicians have been unable to provide a definitive cause for his symptoms. Most often, clinicians found that his symptoms were of unknown or unclear cause. As there is no conclusive pathophysiology or cause shown for the Veteran’s dizziness, and consistent with the stated intent of the Persian Gulf War legislation discussed above, the Board resolves reasonable doubt in favor of the Veteran and awards service connection for dizziness of unknown cause on a presumptive basis under 38 C.F.R. § 3.317. 4. Service connection for diverticulosis, to include as secondary to service-connected IBS The Veteran contends that his diverticulosis is secondary to his service-connected IBS. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). A March 2014 VA examination diagnosed the Veteran with IBS and diverticulosis. The examiner opined the IBS was at least as likely as not caused by or the result of service in Southwest Asia. The examiner further opined that the Veteran’s diverticulosis was not caused by or the result of the claimed IBS. The examiner noted IBS and diverticulosis were distinct clinical conditions and the Veteran was diagnosed with diverticulosis in late 2013. The examiner further noted IBS did not cause diverticulosis. In April 2019, Dr. C.N.B. opined the Veteran’s service-connected IBS significantly contributed to his diverticular disease. Dr. C.N.B. noted that IBS and diverticular disease were over-lapped syndromes and intertwined. He further noted that IBS increased intra-abdominal pressure which significantly contributed to diverticula disease. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current diverticulosis is proximately due to or aggravated beyond its natural progression by his service-connected IBS. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for diverticulosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for deep vein thrombosis The Veteran contends that his deep vein thrombosis is secondary to his service-connected sleep apnea. Alternatively, he contends that his deep vein thrombosis is secondary to his service-connected IBS and diverticulosis. A December 2012 VA examination revealed a diagnosis of deep vein thrombosis to the left calf. The examiner noted there was a clear and specific cause and diagnosis of deep vein thrombosis that was at least as likely as not caused by or incurred during service time in Southwest Asia. In April 2019, Dr. C.N.B. opined that the Veteran’s deep vein thrombosis was likely caused by his service-connected IBS and sleep apnea and cited medical literature than showed a link between the conditions. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current deep vein thrombosis is proximately due to or aggravated beyond its natural progression by his service-connected sleep apnea and IBS. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for deep vein thrombosis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Service connection for residuals of a pulmonary embolism The Veteran contends that his pulmonary embolism is secondary to his service-connected sleep apnea. Alternatively, he contends that his pulmonary embolism is secondary to his service-connected IBS and diverticulosis. A December 2012 VA examination revealed a diagnosis of pulmonary embolism. The examiner noted there was a clear and specific cause and diagnosis of pulmonary embolism that was at least as likely as not caused by or incurred during service time in Southwest Asia. In April 2019, Dr. C.N.B. opined that the Veteran’s deep vein thrombosis caused his pulmonary embolism. Further, Dr. C.N.B. noted his deep vein thrombosis and pulmonary embolism were likely caused by his service-connected IBS and sleep apnea and cited medical literature than showed a link between the conditions. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current pulmonary embolism is proximately due to or aggravated beyond its natural progression by his service-connected sleep apnea and IBS. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for pulmonary embolism is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Propriety of the reduction of VA debt compensation benefits due to the receipt of 39 days of drill pay during Fiscal Year 2013 The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(h) for the reduction of VA benefits. The Board finds that the RO did not follow the proper due process steps for the reduction of VA benefits. First, the RO issued a proposed rating in December 2014. The Veteran was notified in December 2014 at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that the reduction of compensation should not be made and to provide the correct number of training days. The December 2014 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran requested a predetermination hearing in December 2014. The hearing was not held. Instead, the RO proceeded by issuing the July 2015 administrative decision, which reduced his compensation benefits. Notice of this administrative decision, plus his appeal rights, was sent to the Veteran in a July 2015 letter. Because the Veteran requested a predetermination hearing, but the hearing was not held, all due process requirements were not met in reducing the Veteran’s compensation benefits. See 38 C.F.R. § 3.105(h). Accordingly, the reduction of VA compensation benefits was not proper on this basis. REASONS FOR REMAND 1. Service connection for fatty liver is remanded. A VA medical opinion is warranted to address the issue of whether the Veteran’s fatty liver disease may be due to obesity secondary to his service-connected conditions. See VAOPGCPREC 1-2017 (January 6, 2017) (holding that for purposes of secondary service connection under 38 C.F.R. § 3.310(a), obesity may qualify as an “intermediate step” between the service-connected disability and the disability for which service connection is claimed); see also April 2019 Hearing Transcript (stating that the Veteran’s fatty liver is caused by weight gain resulting from his service-connected disabilities). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain a VA medical opinion as to the likelihood that the Veteran’s fatty liver may be due to obesity secondary to his service-connected disabilities. The examiner must address the following questions: (a.) Whether it is at least as likely as not (50% probability or more) that the Veteran’s service-connected disabilities caused him to become obese. (b.) If so, whether his obesity was a substantial factor in causing fatty liver disease. (c.) Whether his fatty liver disease would not have occurred but for obesity caused by the service-connected disabilities. The examiner must provide a complete explanation in support of the conclusion reached. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.