Citation Nr: 20003375 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-45 236 DATE: January 14, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for chronic fatigue syndrome (CFS), to include fatigue, is denied. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a skin disorder, to include tinea versicolor, is remanded. Entitlement to a gastrointestinal disorder, to include irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. The Veteran’s OSA at least as likely as not began during service. 2. The Veteran served in Southwest Asia from October 1990 to April 1991. 3. The Veteran has fatigue associated with OSA, but he is not shown to have CFS or fatigue as a diagnosis or as an undiagnosed illness related to service. 4. Throughout the appeal, the Veteran’s bilateral pes planus has been assigned the maximum schedular rating allowed for this disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for CFS, to include fatigue, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for an initial rating in excess of 50 percent for bilateral pes planus have not been met. 38 C.F.R. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to December 1991. This appeal to the Board of Veterans’ Appeals (Board) is from October 2013 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified during a video conference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that the testimony during the hearing reflects that the Veteran is not contending he is unemployable. It was agreed at the hearing that the record would remain open for 30 days to allow time to submit additional evidence. In October 2019, the Veteran was informed that VA treatment records were added to his claims file after the claims were adjudicated and he was given 45 days to waive initial RO consideration of this evidence. However, since he did not respond it is assumed he did not wish for the Board to consider this evidence first, which requires the Board to remand most of the issues. The Board notes that these records do not contain any evidence relevant to the claims for service connection for OSA and CFS, or his claim for an increased rating for his feet, so these issues may be decided without remanding them first to the RO. A November 2017 Board remand stated that the claim for an earlier effective date for the grant of service connection for hypertension was inextricably intertwined with a clear and unmistakable error (CUE) claim that had been raised by the record concerning a June 2006 rating decision that denied service connection for hypertension. The October 2019 rating decision that granted the higher rating for pes planus also granted an earlier effective date of November 18, 2005 for hypertension based on CUE. This decision satisfied the claim for an earlier effective date for the grant of service connection for hypertension since the Veteran asserted the effective date should be the date of his initial claim. Service Connection Generally, to establish service connection a veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 -81836 (Dec. 29, 2011). 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. 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(d). Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(3- 5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). 1. Entitlement to service connection for OSA The Veteran contends that his OSA is related to service. The Veteran has a current clinical diagnosis of OSA. See September 2016 Medical Treatment Record – Non-Government Facility. His service treatment records do not contain a diagnosis of OSA, but a June 1991 Southwest Asia Demobilization/Redeployment medical evaluation shows he reported having fatigue. He also complained of fatigue in August 1991 along with other complaints and the assessment was upper respiratory infection (URI). See December 2015 STR – Medical. In May 2016, the RO obtained a medical opinion and the clinician opined that the Veteran’s OSA was less likely than not incurred from the URI (upper respiratory infection) during service based on the medical records, which did not contain a sleep study. The clinician added that there was one incident of URI in service without recurrence to suggest a chronic condition. See June 2016 C&P Exam. In October 2018, the Veteran’s representative submitted a favorable medical opinion from Dr. J. Chaney, who noted the Veteran reported having had snoring and daytime somnolence during active duty. Based on these previous symptoms, the physician opined that it is more likely than not that the OSA was present during service despite there not having been a sleep study in service. The Board has considered and weighed all the lay and medical evidence and finds that the favorable and unfavorable evidence have equal probative value. Under the circumstances, reasonable doubt is resolved in the Veteran’s favor and the claim is granted. 2. Entitlement to service connection for CFS The Veteran contends that his fatigue is related to service. Since the Veteran served in Southwest Asia from October 1990 to April 1991, the Board must also consider whether his CFS is connected to such service. The record indicates that his fatigue is attributable in part to OSA, which was service connected above. He has not been diagnosed with any other disorder associated with fatigue that is related to service. The evidence does not indicate the Veteran has CFS or an undiagnosed illness manifested by fatigue. A March 2013 Gulf War examination noted a past medical history that included CFS, but no current diagnosis was made based on this examination. See October 2018 CAPRI records. Furthermore, none of the available in-service or post-service treatment records contain a clinical diagnosis of CFS, so the medical history reported on the examination does not appear to be accurate. On May 2016 VA examination, the Veteran reported being diagnosed with CFS in April 1991, but the clinician stated he did not meet the criteria for a CFS diagnosis. See June 2016 C&P Exam. Furthermore, his service treatment records are also silent for a diagnosis of CFS. See December 2015 STR – Medical. During his May 2019 hearing, the Veteran testified he had not been diagnosed with CFS, but that he had been chronically fatigued since returning from Iraq. His denial of a diagnosis is consistent with the evidence. A May 2016 VA examiner opined that the Veteran’s claimed fatigue was less likely than not incurred in service and the fatigue noted therein. The lack of recurrence indicated it was not a chronic condition and the examiner indicated it was most likely caused by possible OSA. A December 2017 treatment record shows the Veteran reported having an irregular sleep pattern, waking and getting out of bed once or twice a night, and awaking early for work. The assessment was lack of adequate sleep and shift work sleep disorder. See October 2018 Medical Treatment Record – Non-Government Facility. In August 2018, the Veteran reported having fatigue and sleeping only five to six hours a night. The assessment included OSA. See October 2018 Medical Treatment Record – Non-Government Facility. Thus, the evidence indicates his fatigue is related to his service-connected OSA and his shift work; there is no evidence of an undiagnosed illness or CFS. The Veteran is competent to report his symptom of fatigue, but he does not have the medical knowledge or training to make him competent to determine its etiology in this instance. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As a preponderance of the evidence is against the claim, service connection must be denied. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 3. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus A November 2011 rating decision granted service connection for bilateral pes planus and initially assigned a 10 percent rating effective August 7, 2008. This rating was increased to 30 percent in a November 2013 rating decision, also effective August 7, 2008. After the May 2019 hearing but before the Board could adjudicate the issue, the RO increased the rating to 50 percent and assigned the same effective of August 7, 2008. See October 2019 Rating Decision – Narrative. Thus, the Veteran’s bilateral pes planus has been assigned a 50 percent rating throughout the appeal. Pursuant Diagnostic Code 5276, for pes planus, a maximum rating of 50 percent is assigned for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that none of the Diagnostic Codes pertaining to the feet offers an evaluation in excess of 50 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5284. No other contention or issue concerning the rating for his bilateral pes planus has been raised by the Veteran, his representative, or the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As there is no schedular rating in excess of the current 50 percent for rating foot disabilities, the claim for a higher rating is denied. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder is remanded. On the May 2016 VA examination, the clinician did not find anything upon which to base a respiratory diagnosis. See May 2016 VA examination. Since then an August 2017 record shows he was treated for acute sinusitis and an upper respiratory infection (URI). See October 2018 Medical Treatment Record – Non-Government Facility. Service treatment records also contain a diagnosis of URI an opinion is needed to determine if the current diagnosis is related to service. See December 2015 STR – Medical. 2. Entitlement to service connection for a low back disorder is remanded. 3. Entitlement to service connection for a bilateral hip disorder is remanded. 4. Entitlement to service connection for a bilateral knee disorder is remanded. The Veteran contends that his low back, bilateral hip, and bilateral knee disorders are caused or aggravated by his service-connected bilateral pes planus. In October 2016, Dr. J. Agostinelli offered two similar and favorable opinions concerning the low back, hips, and knees, but they are inadequate to decide the claims. While he may be attempting to link the disorders to the service-connected pes planus, the opinions are ultimately unclear because he states these disorders were aggravated by service because of the Veteran’s flat feet. The idea that they were aggravated by service suggests that these claimed disabilities existed prior to service, which has not been alleged or shown by the record. Consequently, it is inadequate to decide the claim. Furthermore, the Veteran asserted during the hearing that the May 2016 VA examination was inadequate because the examination report provided responses to questions that he was never asked. The Board finds the VA examination report inadequate, in part, because the clinician did not address aggravation when offering his opinion. To ensure there is a complete examination and adequately articulated opinions and rationale, these issues must be remanded for another examination. All treatment records from Orthopedic Associates since April 2014 should also be added to the record. 5. Entitlement to service connection for a gastrointestinal disorder to include IBS is remanded. A July 2016 VA treatment record shows that the Veteran is treated by a gastroenterologist at Fort Walton Beach Medical Facility. See April 2019 CAPRI records. These records are not in the claims file and should be obtained. 6. Entitlement to service connection for bilateral hearing loss is remanded. In May 2016, a VA examiner did not offer a nexus opinion because the Veteran’s current hearing loss did not meet the criteria for a disability. During the May 2019 hearing, he testified that his hearing was worse and that his service-connected tinnitus affected his ability to hear. See May 2019 Hearing Transcript. Based on his testimony, another VA examination and opinion are needed. 7. Entitlement to service connection for a skin disorder, to include tinea versicolor is remanded. The Veteran was not offered a VA examination for his skin disorder, but the Board finds one is needed based on his current diagnosis of tinea versicolor and hearing testimony. Specifically, he reported that he experienced intermittent skin problems while in Iraq and that he continues to have skin problems, so an opinion for direct service connection is needed. See June 2006 Medical Treatment Record – Government Facility. He also testified that he had to discontinue taking oral medication for his skin problem because it interfered with the medication he was taking for his service-connected hypertension, which indicates the need for an opinion for aggravation. See May 2019 Hearing Transcript. The matters are REMANDED for the following action: 1. Have the Veteran complete the necessary releases to obtain treatment records from Orthopedic Associates since April 2014 and the Fort Walton Beach Medical Facility. 2. Obtain any outstanding VA treatment records. 3. After # 1 and #2 have been completed, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back, bilateral hip, and bilateral knee disabilities. Make the claims file available to the clinician to review. All pertinent findings should be reported in full, then the examiner should address the following: a) For every diagnosed lumbar disorder, to include spondylosis, disc protrusion, and degenerative disc disease, opine whether it is at least as likely as not (50 percent probability or greater) (i) caused or (ii) aggravated by the service-connected bilateral pes planus. b) For every diagnosed hip disorder, to include right hip degenerative joint disease, opine whether it is at least as likely as not (50 percent probability or greater) (i) caused or (ii) aggravated by the service-connected bilateral pes planus. If a formal diagnosis cannot be made for the left hip but there is evidence that the claimed disability produces functional impairment, please provide the requested opinion for the left hip. c) For every diagnosed disorder for each knee, opine whether it is at least as likely as not (50 percent probability or greater) (i) caused or (ii) aggravated by the service-connected bilateral pes planus. If a formal diagnosis cannot be made for either knee but there is evidence that the claimed disability produces functional impairment, please provide the requested opinion for the knee. d) The examiner should consider and discuss the literature found in the May 2019 Correspondence that relates to the relationship between the feet and other parts of the body, and the assertion that the Veteran’s altered gait caused or aggravated the claimed lumbar, bilateral hip, and bilateral knee disabilities. e) The examiner must explain the rationale for each opinion expressed. 4. After the development in #1 and #2 has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed respiratory disorder. The claims file must be made available to the examiner to review. After the examination and review of the claims file, the clinician must address the following: a) For every respiratory disorder diagnosed, to include the URI noted in 2017, opine whether it is at least as likely as not (50 percent probability or greater) related to service. b) The clinician should specifically consider the URI treated in service and the Veteran’s testimony of being exposed to sandstorms and lingering smoke when he was deployed to Southwest Asia. c) The examiner must explain the rationale for each opinion expressed. 5. After the development in #1 and #2 has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of his hearing loss. The claims file must be made available to the examiner to review. After the examination and review of the claims file, the clinician must address the following: a) Does the Veteran have a hearing loss disability, for VA purposes, in either ear? b) If so, did the Veteran’s hearing loss at least as likely as not (50 percent probability or greater) have its onset during service or is otherwise related to service? c) If the hearing loss is not related to service, opine whether it is at least as likely as not (50 percent probability or greater) (i) caused or (ii) aggravated by the service-connected tinnitus. d) The examiner must explain the rationale for each opinion expressed. 6. After the development in #1 and #2 has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed skin disability. The claims file must be made available to the examiner to review. After the examination and review of the claims file, the clinician must address the following: a) For every skin disorder diagnosed, to include tinea versicolor, opine whether it is at least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service? b) If it is not related to service, opine whether it is at least as likely as not (50 percent probability or greater) (i) caused or (ii) aggravated by the service-connected hypertension. In offering this opinion consider the Veteran’s assertion that he had to discontinue oral medication for his skin disorder because it interfered with medication he was taking for his service-connected hypertension. c) The examiner must explain the rationale for each opinion expressed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.