Citation Nr: 19149781 Decision Date: 06/26/19 Archive Date: 06/25/19 DOCKET NO. 17-58 998 DATE: June 26, 2019 ORDER Entitlement to service connection for chronic fatigue syndrome and/or sleep apnea is denied. Entitlement to service connection for sarcoidosis is denied. Entitlement to service connection for a digestive disorder is denied. Entitlement to service connection for dermatitis is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of chronic fatigue syndrome. 2. Sleep apnea is not shown to be causally or etiologically related to an in-service injury or disease. 3. Sarcoidosis is not shown to be causally or etiologically related to an in-service injury or disease. 4. A digestive disorder, to include diverticulosis, is not shown to be causally or etiologically related to an in-service injury or disease. 5. The probative evidence does not demonstrate that the Veteran’s diagnosed dermatitis manifested during, or as a result of, active military service, manifested within one year from separation from service, or is proximately due to, or a result of, service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome and/or sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for dermatitis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to August 1992. This appeal comes before the Board of Veterans Appeals (Board) from April 2016 and August 2016 rating decisions by Department of Veterans Affairs (VA) Regional Office (RO). The issues have been re-characterized as presented as shown on the front page of this decision. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, certain conditions, such as sarcoidosis, are recognized by VA as a chronic disease under 38 C.F.R. §§ 3.307, 3.309 (a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the medical evidence does not show that sarcoidosis was diagnosed or manifested to a compensable degree within one year of separation from active service, here by December 31, 1999; hence the presumption afforded in the regulations cannot apply in the present case. Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more during the presumptive period prescribed by the Secretary, and which 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 (a)(1). The Veteran is a Persian Gulf Veteran within the meaning of the regulation, as he served on military active duty in the southwest Asia theater of operations from October 1990 to August 1992. However, the medical evidence does not establish that the Veteran manifests an undiagnosed or medically unexplained chronic multi-symptom illness (an illness diagnosed without conclusive pathophysiology or etiology characterized by overlapping symptoms and signs with features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities (i.e. chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders)) as defined by 38 C.F.R. § 3.317. Hence the presumption afforded in the regulations cannot apply in the present case. 1. Entitlement to service connection for sleep apnea, to include chronic fatigue syndrome, is denied. Because the evidence indicates that the Veteran may have different conditions or diagnoses for ¬¬¬the disabling symptoms he asserts are service connected, the Board is expanding the scope of his claims to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Initially, the Board notes that the medical evidence does not reflect that the Veteran has a diagnosis for chronic fatigue syndrome. See June 2016 Chronic Fatigue Syndrome Disability Benefits Questionnaire (DBQ). The medical evidence instead reflects that the Veteran has a current diagnosis of sleep apnea based on sleep studies, as noted in June 2016 Sleep Apnea DBQ. Thus, the first element under Shedden is met. However, STRs show no evidence that the condition was suspected or diagnosed during active service. Moreover, STRs, including clinical findings, show no suspicion, findings, or diagnosis of fatigue or any sleep problems, to include sleep apnea. See STRs. Furthermore, the Veteran has not argued that he was treated for, suspected to have, or diagnosed with sleep apnea during active service. Thus, the second element of Shedden is not met. The Veteran has not presented or pointed to evidence that establishes a causal relationship between the diagnosed sleep apnea and his active service or that shows that sleep apnea was manifest to a compensable degree within the presumptive one-year period after the Veteran’s discharge from active service. In fact, in a June 2016 sleep apnea DBQ, the examiner documented the Veteran’s report that he had experienced symptoms of persistent generalized fatigue over the previous five or six years. The June 2016 examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner reasoned that the Veteran was not diagnosed with sleep apnea until 2016 and that the Veteran instead had presence of significant risk factors of sleep apnea, to include obesity, hypertension, advancing age, and being a male. The fact that there were no records of any complaints or treatment involving the claimed sleep apnea for many years after service, weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, as noted above, the Veteran does not argue that sleep apnea was treated, suspected or diagnosed during active service or within the one-year presumptive period after discharge. Instead, the Veteran reported during the June 2016 sleep apnea DBQ that his symptoms did appeared only five or six years prior to the examination, which was approximately two decades after service. There are no other medical findings or medical statements tending to show that the diagnosed sleep apnea is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service. Thus, the third element of Shedden is not met. Accordingly, as there is no evidence that establishes a causal relationship between sleep apnea and active service, and no evidence that establishes a diagnosis of sleep apnea to a compensable degree within the presumptive one-year period after discharge, service connection for sleep apnea is not warranted. The preponderance of the evidence weighs against a finding that the Veteran’s sleep apnea is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for sarcoidosis is denied. Sarcoidosis was first suspected in January 2016. See June 2016 VA examination. Thus, the first element under Shedden is met. However, STRs, including clinical findings, show no suspicion, findings, or diagnosis of sarcoidosis. See STRs. Thus, the second element of Shedden is not met. The Veteran has not presented or pointed to evidence that establishes a causal relationship between the diagnosed sarcoidosis and his active service or that shows that sarcoidosis was manifest to a compensable degree within the presumptive one-year period after the Veteran’s discharge from active service. In fact, in a June 2016 VA examination, the examiner noted that the Veteran was not involved in any healthcare system from 2007 to 2015, when in early 2015 the Veteran experienced involuntary weight loss. The examiner then noted that when the Veteran first sought treatment in early 2015, he had symptoms of fatigue and vague sensation of not being well. The examiner then noted that the Veteran was diagnosed with sarcoidosis in January 2016 when it was found that the sarcoid had affected multiple organs to include lungs and liver. The June 2016 VA examiner opined that the Veteran’s sarcoidosis was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner reasoned that the Veteran was not diagnosed with sarcoidosis until 2016 and that there was insufficient evidence to determine whether an association exists for sarcoidosis due to service in the Southwest Asia. The fact that there were no records of any complaints or treatment involving the claimed sarcoidosis for many years after service, weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, as noted above, the Veteran does not argue that sarcoidoses was treated, suspected or diagnosed during active service or within the one-year presumptive period after discharge. There are no other medical findings or medical statements tending to show that the diagnosed sarcoidosis is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service. Thus, the third element of Shedden is not met. Accordingly, as there is no evidence that establishes a causal relationship between sarcoidosis and active service, and no evidence that establishes a diagnosis of sarcoidosis to a compensable degree within the presumptive one-year period after discharge, service connection for sarcoidosis is not warranted. The preponderance of the evidence weighs against a finding that the Veteran’s sarcoidosis is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. At 5557; 38 C.F.R. § 3.102. For these reasons, the claim is denied. 3. Entitlement to service connection for a digestive disorder is denied. The Veteran was first diagnosed with diverticulosis in July 2015. See June 2016 VA examination. Thus, the first element under Shedden is met. However, STRs show no evidence that the condition was suspected or diagnosed during active service. Moreover, STRs, including clinical findings, show no suspicion, findings, or diagnosis of diverticulosis or another digestive disorder. See STRs. Furthermore, the Veteran has not argued that he was treated for, suspected to have, or diagnosed with diverticulosis or another digestive disorder during active service. Thus, the second element of Shedden is not met. The Veteran has not presented or pointed to evidence that establishes a causal relationship between the diagnosed diverticulosis and his active service or that shows that diverticulosis was manifest to a compensable degree within the presumptive one-year period after the Veteran’s discharge from active service. In a June 2016 VA examination, the examiner noted that the Veteran was diagnosed with diverticulosis in a July 2015 colonoscopy. The June 2016 VA examiner opined that the Veteran’s diverticulosis was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner reasoned that the Veteran was diagnosed with diverticulosis as an incidental finding in a 2015 colonoscopy and that the Veteran did not and does not have any symptoms attributable to diverticulosis. The examiner reasoned that development of diverticula in the colon is associated predominantly with aging and obesity, and that both of the risks applied to the Veteran. The examiner also reasoned that the there was no evidence of diverticula being present in the Veteran prior to the 2015 colonoscopy. The fact that there were no records of any complaints or treatment involving the claimed diverticulosis for many years after service, weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, as noted above, the Veteran does not argue that diverticulosis was treated, suspected or diagnosed during active service or within the one-year presumptive period after discharge. There are no other medical findings or medical statements tending to show that the diagnosed diverticulosis is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service. Thus, the third element of Shedden is not met. Accordingly, as there is no evidence that establishes a causal relationship between diverticulosis or another digestive disorder and active service, and no evidence that establishes a diagnosis of diverticulosis or another digestive disorder to a compensable degree within the presumptive one-year period after discharge, service connection for diverticulosis is not warranted. The preponderance of the evidence weighs against a finding that the Veteran’s diverticulosis or another digestive disorder is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. At 5557; 38 C.F.R. § 3.102. For these reasons, the claim is denied. 4. Entitlement to service connection for dermatitis is denied. Dermatitis was first diagnosed in 2015. See April 2016 Skin Diseases DBQ. Thus, the first element under Shedden is met. However, STRs show no evidence that the condition was suspected or diagnosed during active service. Moreover, STRs, including clinical findings, show no suspicion, findings, or diagnosis of dermatitis. See STRs. Furthermore, the Veteran has not argued that he was treated for or diagnosed with dermatitis during active service. Thus, the second element of Shedden is not met. The Veteran has not presented or pointed to evidence that establishes a causal relationship between the diagnosed dermatitis and his active service or that shows that dermatitis was manifest to a compensable degree within the presumptive one-year period after the Veteran’s discharge from active service. In fact, in an April 2016 Skin Diseases DBQ, the examiner documented the Veteran’s report that he did not seek treatment for his skin condition until 2015 and that he did not recall being seen or treated for this skin condition while on active duty. The examiner opined that the Veteran’s dermatitis was less likely than not related to service. The examiner reasoned although the Veteran reported that his skin condition began during service, more than 25 years ago, that he did not seek treatment until 2015. The examiner also reasoned that there are no STRs, to include a separation examination, that note a rash or any other skin condition during service. The fact that there were no records of any complaints or treatment involving the claimed dermatitis for many years after service, weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, as noted above, the Veteran does not argue that dermatitis was treated or diagnosed during active service or within the one-year presumptive period after discharge. There are no other medical findings or medical statements tending to show that the diagnosed dermatitis is the result of active service or was manifest to a compensable degree within the year after the Veteran’s discharge from active service. Thus, the third element of Shedden is not met. Accordingly, as there is no evidence that establishes a causal relationship between dermatitis and active service, and no evidence that establishes a diagnosis of dermatitis to a compensable degree within the presumptive one-year period after discharge, service connection for sarcoidosis is not warranted. The Veteran also alleges that the Veteran’s dermatitis is due to his sarcoidosis. As the Veteran is not service connected for sarcoidosis, secondary service connection is not warranted. (Continued on the next page)   The preponderance of the evidence weighs against a finding that the Veteran’s dermatitis is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. At 5557; 38 C.F.R. § 3.102. For these reasons, the claim is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, 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.