Citation Nr: 20007657 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 13-15 447 DATE: January 29, 2020 ORDER Entitlement to service connection for chronic fatigue syndrome, to include as secondary to the Veteran’s service-connected tinnitus disability is denied. Entitlement to service connection for epilepsy, to include as secondary to the Veteran’s service-connected tinnitus disability is granted. REMANDED Entitlement to service connection for vertigo, to include as secondary to the Veteran’s service-connected tinnitus disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a panic or depressive disorder, to include as secondary to the Veteran’s service-connected tinnitus disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of chronic fatigue syndrome. 2. Competent and credible lay evidence establishes that the Veteran’s epilepsy was incurred during active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic fatigue syndrome, to include as secondary to the Veteran’s service-connected tinnitus disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.317. 2. The criteria for service connection for epilepsy have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from May 1985 to November 1985 and from February 1991 to June 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the January 2011 rating decision indicated that the scope of the Veteran’s acquired psychiatric disability was entitlement to service connection for panic disorder or depressive disorder. Review of the record indicates that the Veteran has been diagnosed with a generalized anxiety disorder, as well as depressive disorder NOS and panic disorder. Accordingly, the Board has characterized the issue on appeal as service connection for an acquired psychiatric disorder to better reflect the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal was initially remanded in November 2017 for further development because the Veteran’s claims file did not contain any VA examinations pertaining to his claimed disabilities on appeal. The Veteran was afforded VA examinations in May 2018. The Board notes that in a May 2019 correspondence, the Veteran requested expedited processing and waived his right to have the RO consider any new evidence during the adjudication of his appeal. Therefore, the BVA can consider, in the first instance, any new evidence received from the Veteran or his representative in the adjudication of the appeal. Service Connection Establishing service connection generally requires 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); 38 C.F.R. § 3.303. Certain chronic disabilities will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology; however, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 38 C.F.R. § 3.317 (b) (including fatigue and headaches); (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). 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)(1). 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). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2 (i). The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 C.F.R. § 3.317 (a)(2)(i). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2015). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for chronic fatigue syndrome, to include as secondary to the Veteran’s service-connected tinnitus disability In a July 2002 Primary Care Interdisciplinary Assessment/Screening note, the Veteran reported that all his symptoms, including vertigo and fatigue are associated with the vaccines that he was administered in preparation for deployment to the Persian Gulf. The Board has reviewed the Veteran's record and finds no current diagnosis of chronic fatigue syndrome. The Veteran was afforded a VA examination in May 2018. The examiner reported that the Veteran has no diagnosis of chronic fatigue syndrome. The examiner recognized that the Veteran’s complaints of general fatigue, which worsen during any kind of exercise. However, the examiner noted that fatigue and chronic fatigue syndrome are not the same as both conditions present with different symptoms and prognosis. The Board acknowledges the Veteran’s lay reports of both physical and mental fatigue. The Veteran is competent to describe his fatigue symptoms, but does not have the training or credentials to provide a diagnosis of chronic fatigue. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the Veteran was on active duty during the Persian Gulf War, the Board has also considered whether service connection for chronic fatigue can be established based on an undiagnosed illness. According to the Veteran’s military personnel records, he was not deployed for combat to the Persian Gulf. The Veteran’s complaints of fatigue may not be considered for purposes of service connection based on an undiagnosed illness since he did not serve in Southwest Asia. The preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b). As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for chronic fatigue syndrome is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for epilepsy, to include as secondary to the Veteran’s service-connected tinnitus disability The Veteran was afforded a VA examination in May 2018. The examiner noted that the Veteran was diagnosed with “absence seizure or petit mal or atonic seizures (generalized non-convulsive seizures)” in 1991. The examiner’s reporting of the Veteran’s diagnosis was by history. On examination, the Veteran reported that he has had a history of myoclonic jerks since he was 28 years old. The ambulatory EEG dated July 1998 revealed epileptic activity compatible with petit mal epilepsy. The Veteran also reported that his mother had observed his episodic myoclonic jerks when the Veteran was 28 years old, which was on or about 1991 during his time in service. The Veteran reported that the approximate date of his first seizure was in 1985 and that he currently has 5 to 8 seizures per week. The examiner reported that the Veteran takes continuous medication to control his epilepsy. The examiner opined that it was at least as likely as not that the Veteran’s epilepsy was incurred in or caused by service. The examiner stated that although there are no Service Treatment Records (STRs) evidencing seizure activity, the Veteran’s mother and the Veteran’s lay statements recalling that the Veteran had a myoclonic seizure activity when he was 28 years old, which coincided with the Veteran’s second induction and boot camp in the U.S. Marine Corps, was sufficient to establish service connection. The Veteran’s STRs identify that the Veteran was seen on August 24, 1984 prior to entry into service and that all his orthopedic and neurological tests were negative. The Veteran was noted to have no duty restrictions and as of May 23, 1991, he was placed on terminal leave pending his final separation from military service. On December 11, 1997, six years after his discharge from military service, the Veteran had an EEG study performed by Dr. L. H. This study revealed no evidence of seizures or epileptic activity. On July 22, 1998, the Veteran underwent an EEG study with Dr. A.M. This study revealed mixed epileptic activity while the Veteran was awake. In a January 2014 Persian Gulf Registry Note, the examiner noted that the Veteran has a history of seizures A November 2018 psychiatric progress note reported that the Veteran had a history of petit mal epilepsy or seizures previously treated by a community neurologist about 10 years ago. Per a December 2015 infectious disease consultation, the Veteran stated that he associated his epilepsy with multiple experimental vaccines that he received when the conflict in the Persian Gulf started even though he was not deployed to South East during the Persian Gulf War. Although the evidence of record does not contain a statement from the Veteran’s mother, the Board finds Veteran’s reporting of his mother’s observation of seizure activity credible. While neither the Veteran nor his mother are competent to opine as to the etiology of the Veteran’s seizures, both the Veteran and his mother are competent to report about observable symptomatology, such as seizure activity. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran and his mother credible in their reporting of the Veteran’s seizures while in service. A VA examiner is permitted to base his medical opinion as to nexus on credible lay statements. Moreover, competent lay evidence does not need to be corroborated by medical evidence in order for it to be credible. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, the Board finds no reason to question the competency and adequacy of the May 2018 VA examination or the examiner’s reliance on the Veteran’s and his mother’s lay statements. The Board accordingly finds that the claim for service connection is substantiated. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for epilepsy is granted. 38 C.F.R. § 3.303 REASONS FOR REMAND 1. Entitlement to service connection for vertigo, to include as secondary to the Veteran’s service-connected tinnitus disability The May 2018 VA examination noted that the Veteran had been diagnosed with peripheral vestibular disorder in November 2017, otherwise knowns as dizziness or vertigo. The examiner noted that the Veteran’s peripheral vestibular disorder was attributable to the Veteran’s tinnitus disability. The examiner also noted that the Veteran had an audiogram which reflected hearing loss. In the associated medical opinion, the examiner opined that it was less likely as not that the Veteran’s vertigo disability was incurred or caused in-service because the Veteran developed vertigo 11 years after his discharge from service. The examiner also noted that the Veteran refused to undertake an ENG study in April 2017 and therefore, further evaluation was required to determine the etiology of the Veteran’s vertigo. The Board does not consider that the VA examiner provided an adequate rationale for his medical, especially since he stated that further development was necessary to ascertain the etiology of the Veteran’s disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a reman is warranted to conduct further development so that the examiner can provide a more accurate medical opinion regarding direct-service connection. Additionally, the examiner only addressed whether the Veteran’s vertigo disability was incurred or caused during service and failed to address the issue of service connection secondary to the Veteran’s service-connected tinnitus disability as required by the Board’s November 2017 remand directives. Stegall v. West, 12 Vet. App. 238 (1999). Therefore, a remand is required to address the issue of secondary service-connection 2. Entitlement to service connection for an acquired psychiatric disorder, to include a panic or depressive disorder, to include as secondary to the Veteran’s service-connected tinnitus disability. The Veteran was afforded a VA examination in May 2018. Although the examiner confirmed the Veteran’s diagnosis of Panic Disorder without Agoraphobia, he opined that it was less likely as not that the Veteran’s acquired psychiatric disorder was incurred in or caused by service. The examiner based his medical opinion on the rationale that “the preponderance of evidence fails to show a link between [the] mental condition and military stressors until 1991. [The] Veteran started psychiatric treatment in 2011, 20 years after discharge from active duty.” However, in a July 2002 letter, Dr. W.P., a licensed psychologist, stated that he had treated the Veteran since November 1992 for symptoms such as anxiety, panic attacks, agitation, maladaptive worries, periods of general weakness, difficulty concentrating, and memory problems. Dr. W.P. stated that he treated the Veteran for approximately one year over the course of several visits from November 1992 to January 1994, and that the Veteran resumed treatment with him in 1997. The Board finds that the examiner failed to provide an adequate rationale for his medical opinion and failed to consider all the medical evidence in the record. Barr, 21 Vet. App. at 311. Therefore, a remand is warranted to obtain a medical opinion with an adequate rationale Moreover, the examiner failed to address the issue of service-connection secondary to service-connected tinnitus as mandated by the November 2017 remand directives. Stegall, 12 Vet. App. 238. Therefore, a remand is warranted to obtain a medical opinion which addresses the issue of secondary service connection. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive (1), schedule the Veteran for and ENG study. Once the ENG study has been completed, obtain an addendum medical opinion to address whether it at least as likely as not (50 percent probability or greater) that the Veteran’s vertigo disability is attributable to an active period of service. All findings, conclusions, and opinions must be supported by a clear rationale. 3. The addendum medical opinion should also address whether it at least as likely as not (50 percent probability or greater) that the Veteran’s vertigo disability is caused or aggravated by the Veteran’s service-connected tinnitus. In providing the medical opinion, the examiner should refer to the May 2018 VA examination which noted that the Veteran’s peripheral vestibular disorder was attributable to the Veteran’s tinnitus disability. All findings, conclusions, and opinions must be supported by a clear rationale. 4. Obtain an addendum medical opinion that addresses whether it at least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disability is attributable to an active period of service. All findings, conclusions, and opinions must be supported by a clear rationale. 5. The addendum medical opinion should also address whether it at least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disability is caused or aggravated by the Veteran’s service-connected tinnitus. All findings, conclusions, and opinions must be supported by a clear rationale. 3. If any issue on appeal is not granted, return the appeal to the Board for adjudication in the first instance per the Veteran’s waiver of RO adjudication of new evidence. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.