Citation Nr: 20004652 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-54 660 DATE: January 23, 2020 ORDER Entitlement to service connection for a headache disability is denied. REMANDED Entitlement to service connection for fatigue is remanded. Entitlement to service connection for joint pain is remanded. Entitlement to service connection for muscle pain is remanded. Entitlement to service connection for sleep trouble is remanded. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT The preponderance of the evidence is against a finding that a headache disability had its onset in service or was otherwise due to active service, to include service in the Southwest Asia theater of operations. CONCLUSION OF LAW The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1984 to June 1991, to include service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed his claim for joint and muscle pain, cardiovascular disease, headaches, sleep disturbances, and fatigue. In the September 2017 Statement of the Case (SOC), the Veteran’s claim was listed as service connection for coronary artery disease (claimed as cardio condition), and service connection for fatigue, sleep disorder (also noted as night sweats), joint and muscle pain, and headaches. The Board has re-characterized the claims to reflect entitlement to service connection for each issue separately, as noted above. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be warranted for a Persian Gulf Veteran for certain qualifying chronic disabilities. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). The Veteran’s military personnel records indicate he served in Southwest Asia during his active duty service. Accordingly, the Board finds that 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. It is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a headache disability The Veteran contends that his headache disability was caused or aggravated by his active service, to include service in Southwest Asia. The Veteran is diagnosed with chronic headache. See March 2012 VA Examination, December 2015 VA Examination. He also has a diagnosis of tension headache. See December 2015 VA Examination, December 2015 VA Treatment Record. In the March 2012 and December 2015 VA examinations, a headache disability was noted as not having an unknown etiology, and the Veteran did not report any additional signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. As the Veteran has a diagnosed headache disability, consideration of service connection under 38 C.F.R. § 3.317 (Compensation for certain disabilities occurring in Persian Gulf veterans) is not warranted. In reviewing his service treatment records (STRs), the Veteran had complained of a bruise in April 1990 after he had hit his head against another player while playing basketball. The STRs are absent any other complaints, diagnosis, or treatments related to headaches. Notably, in his May 1991 Report of Medical History conducted contemporaneous to his separation examination from service, he denied having had any frequent or severe headache, dizziness, or fainting spells. See also June 1983, June 1989, and June 1990 Reports of Medical History. The Veteran presented for a VA examination in December 2015, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported that his headache mainly occurred at night where he would wake up from his sleep, although the headache would also occasionally occur during the day as well. He indicated that the headaches occur once or twice per week for about an hour or more. He also stated that the headaches were bifrontal with dull aching pain that can be accompanied by lightheadedness. Upon completing the examination, the examiner opined that Veteran’s headache was less likely than not incurred in or caused by the in-service injury, event or illness. See December 2015 Disability Benefits Questionnaire. In support of this conclusion, the examiner explained that the STRs are silent regarding headache complaints, and very little is noted about the head injury in April 1990. Additionally, the examiner noted that the Veteran’s separation exam in May 29, 1991 is negative for head injury and headache. Therefore, the examiner concluded that based on the available documentation, no clear relationship can be established between onset of the Veteran’s headaches and his previous head injury. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The Board acknowledges the Veteran’s assertion that he has a headache disability related to his active service. Although the Board recognizes that the Veteran was a medic during his active service, a respiratory therapist thereafter, and that he is also competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced, he is not competent to opine as to the etiology of his headache disability, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to causation, as opposed to presence, of a disability. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, after weighing the evidence the Board finds the VA examiner’s medical opinion more probative than the Veteran’s statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability, and as the opinion is supported by a clear rationale. The Veteran’s statements do not adequately account for his denial at separation from service of having had frequent or severe headaches or the lack of complaint and treatment for headaches during service and are therefore less probative. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND The Board regrets further delay but finds that additional development is required before the remaining claims on appeal are decided. 1. Service connection for fatigue, muscle pain, joint pain, and sleep trouble The Veteran asserts that he has undiagnosed illnesses manifested by symptoms of fatigue, muscle pain, joint pain, and sleep trouble due to his service in Southwest Asia. The Board finds that another VA examination is required to address the Veteran’s claimed symptomatology. Although the Veteran was afforded VA examinations in March 2012 and December 2015, the examiners did not address the nature and etiology of Veteran’s symptoms and determine whether the Veteran’s symptoms are attributable to a known clinical diagnosis. During the March 2012 VA Examination, the Veteran complained of constantly feeling tired and having low energy due to his fatigue that onset in 1991, and experiencing generalized muscle aches, sleep trouble and joint pain with onset around 2001. The March 2012 VA examiner diagnosed osteoarthrosis of the hands and knees. Thereafter, in a December 2015 VA examination, the noted diagnosis was bilateral degenerative arthritis of the hands and knees. However, there was no indication as to whether Veteran’s diagnosed disabilities of the hands and knees were related to his active service. Additionally, the remaining claimed joint pain has not been addressed. For instance, although an elbow examination took place in December 2015, there was no diagnosis given nor was an explanation put forth to explain the Veteran’s claimed joint symptoms. In order to adequately address the Veteran’s claimed symptomatology, the Board finds that another VA examination is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Service connection for heart disability The Veteran asserts that his heart disability was caused or aggravated by his active service, to include service in Southwest Asia. The Veteran was diagnosed with coronary artery disease and prior myocardial infarction, with an onset date of September 2009. See March 2012 VA Examination and December 2015 VA examination. While VA sent the Veteran for examinations, no opinion was obtained regarding the etiology of the Veteran’s heart disability. An opinion should be obtained. See Barr, 21 Vet. App. 303. Of note, regarding the heart, the June 1983 enlistment examination noted a “1 of 6 systolic murmur at the apex not transmitted.” In March 1989, the Veteran was examined by a physician regarding his heart murmur. Additionally, in April 1991, there were notations regarding ruling out ASH, which likely stands for asymmetric septal hypertrophy. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any chronic disability or undiagnosed illness manifested by fatigue, joint pain, muscle pain, and sleep trouble. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should: (a) List all diagnosed disabilities accounting for the claimed fatigue, joint pain, muscle pain, and sleep trouble. If joint pain is present, but a diagnosis accounting for the joint pain is not appropriate, the examiner should note whether there is functional impairment as a result of the joint pain. Discussion of individual joints affected by pain is requested. (b) For each diagnosed disability and for each joint with functional impairment as a result of pain, offer an opinion as to whether the disability/impairment is at least as likely as not (50 percent probability or greater) the result of an in-service event, injury, or disease, to include service in Southwest Asia. (c) List all symptoms related to fatigue, joint pain, muscle pain, and sleep trouble that are not fully accounted for by the diagnoses rendered in response to (a). (d) For each symptom listed in response to (c), the examiner should describe if there are objective indications of chronic disability* and the impairment caused by the symptoms (e.g., requires medication, limits motion, causes loss of power/weakness, causes incapacitation, results in hypersomnolence, etc.). Information on the frequency of the symptoms would also be helpful. (e) The examiner should offer an opinion on whether diagnoses of Chronic Fatigue Syndrome or Fibromyalgia are appropriate. If neither condition is diagnosed, the examiner should still address the other questions above as they pertain to the complaints of fatigue and joint/muscle pain. *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. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 3. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current heart disability (to include coronary artery disease and the previous myocardial infarction) are related to an in-service injury, event, or disease. The examiner is also asked to offer an opinion as to whether the pre-existing heart murmur increased in severity during service, and if so, if the increase was clearly due solely to the natural progression of the disorder. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.