Citation Nr: 20007759 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-10 111 DATE: January 29, 2020 ORDER 1. Entitlement to service connection for a sleep disorder (claimed as sleep apnea and circadian rhythm disorder) is denied. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. 3. Entitlement to service connection for bilateral hearing loss is denied. 4. Entitlement to service connection for a low back disability is denied. 5. Entitlement to service connection for a right knee disability is denied. 6. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran has not been diagnosed with a disability related to a sleep disorder during the pendency of the claim. 2. The preponderance of the evidence shows that a psychiatric disability did not have its onset in service and is not etiologically related to service. 3. The Veteran does not have bilateral hearing loss as defined by VA regulations. 4. The preponderance of the evidence shows that the Veteran’s low back disability did not have its onset in service and is not etiologically related to service. 5. The preponderance of the evidence shows that the Veteran’s right knee disability did not have its onset in service and is not etiologically related to service. 6. The preponderance of the evidence shows that the Veteran’s left knee disability did not have its onset in service is are not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018). 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2018). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 4. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 5. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 6. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1996 to June 2000, and from May 2001 to May 2005. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A March 2016 rating decision reconsidered the previous denial of service connection for the claims on appeal, and continued the denial of the claims. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has alleged additional psychiatric symptoms to those originally claimed as PTSD. Accordingly, the issue on the title page reflects the expanded issue. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain listed chronic diseases, such as sensorineural hearing loss, as a disease of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, 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 of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a sleep disorder is denied. For those who served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)). 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; 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. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “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.” Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). “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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a)(4). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time the claim for service connection is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). In the instant case, the Board notes that the post-service treatment records reflect complaints related to difficulty sleeping. However, treatment providers have not diagnosed the Veteran with a corresponding sleep disorder. Although service treatment records contain a diagnosis of circadian rhythm disorder in January 2002, there is no evidence to support that a current disability exists. Additionally, the June 2015 VA examiner concluded that the Veteran did not have a diagnosis of a sleep disorder. The examiner noted the 2002 diagnosis of a circadian rhythm disorder, but explained that no objective study was completed to confirm such a diagnosis in 2002. No chronic or disabling sleep condition was identified in June 2015. Thus, the probative evidence of record fails to demonstrate a current diagnosis related to the claimed sleep disorder. To the extent that the Veteran has alleged that this disorder is related to service in the Gulf War, the June 2015 VA examiner did not find the Veteran had an undiagnosed illness involving a sleep disorder. The report noted that the Veteran did not have a diagnosed illness for which no etiology had been established, nor were any additional symptoms representative of an undiagnosed illness or medically unexplained chronic multisymptom illness present upon examination. The Veteran also has reported symptoms including snoring and difficulty sleeping. However, the medical evidence of record does not support a diagnosis of a sleep disorder. Although the Board has also considered the Court’s holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of this disability prior to the Veteran’s claim, nor evidence of functional impairment attributed to these complaints. The Board has considered the Veteran’s general allegations that this disability is related to service. She is competent to report having difficulty sleeping, but the evidentiary record does not reflect that such has been attributed to a specific disability, or produced functional impairment. The Board notes that the Veteran is competent to report her own symptoms or matters within her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board’s categorical statement that ‘a valid medical opinion’ was required to establish nexus, and that a layperson was ‘not competent’ to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that at issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, this type of diagnosis involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose a disability involving a sleep disorder, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 (“[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); see also Woehlaert, supra. There is also no persuasive evidence that she has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a sleep disorder for the entire appeal period; there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a sleep disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The Board notes that post-service VA treatment records include positive screenings for depression and anxiety, yet others indicated that these conditions had been ruled out as potential diagnoses. See May 18, 2015 and June 1, 2015 VA Treatment Records. The Board further acknowledges the February 2016 VA Clinic letter, which indicated that the Veteran had a diagnosis of PTSD. However, no rationale was provided in support of this conclusion, and it did not correspond with the Veteran’s contemporaneous treatment records, which included a February 2016 evaluation that specifically indicated the Veteran did not have PTSD. The Veteran was afforded a VA examination in June 2015. She did not meet any of the DSM-V criteria for a diagnosis of PTSD at that time. The examiner also concluded that, while other mental disorders, including GAD and depression, were assessed, the Veteran did not meet the criteria for those disorders. The examiner explained that the Veteran’s diagnosis was post-transition gender dysphoria which was less likely than not related to military service, as there was no related treatment during service. The Board finds the opinion of the VA examiner to be highly probative. This opinion was based on a thorough review of the claims file and provided a detailed report to support the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The June 2015 examiner also interviewed the Veteran, and thoroughly reviewed her psychological medical history and the reported stressors. For these reasons, the June 2015 opinion is afforded greater probative value than the entries found in the post-service treatment records. In addition, the available service treatment records contain no complaints, symptoms, or diagnoses of an acquired psychiatric disorder, to include PTSD, GAD, depression, gender identity disorder, or gender dysphoria. The Board notes that the Veteran has reported that she was in fear of being discharged from the military due to her gender identity. See November 2019 Board Hearing Transcript p. 3. However, when there is medical documentation corresponding to a specific relevant time period, the Board considers those documents to more probative on the question of health in general at that time, and on whether there is evidence of the presence or absence of a particular disability at that time, than recollections offered more than 10 years later, and in the context of seeking monetary benefits. These documents, (the Veteran’s service treatment records), do not appear to show any sign of the Veteran’s current psychiatric disability, which also was the conclusion reached by the June 2015, VA examiner. Therefore, the greater weight of the evidence is against finding in service, the presence of the post service disability; i.e., there is no in-service disease or injury with which the post service diagnosis could have a causal relationship. In these circumstances, the Board finds that the greater weight of the evidence is against the conclusion that a psychiatric disorder, to include PTSD was incurred in service. 3. Entitlement to service connection for bilateral hearing loss is denied. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran seeks service connection for bilateral hearing loss, which she says is related to excessive noise exposure from aircrafts during military service. A VA audiological examination conducted in June 2015 shows auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 5 10 15 LEFT 0 5 5 15 25 Speech discrimination scores were 100 percent in both ears. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As shown above, the June 2015 VA examination did not show hearing loss for VA purposes in either ear based upon puretone thresholds and the speech discrimination scores. In order to be considered for service connection, a claimant must first have a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer, supra; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board notes that the Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of the record shows no diagnosis of bilateral hearing loss, aside from the Veteran’s lay statements. Hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis, and the Veteran is not shown to be qualified through specialized education, training, or experience to diagnose a hearing loss disability. As the Veteran has been afforded a complete and thorough VA audiological examination, these results are afforded more probative weight and are found to reflect an accurate picture of her current hearing abilities. Under these circumstances, a basis upon which to establish service connection has not been presented and the appeal must be denied. 4. Entitlement to service connection for a low back disability is denied. The record reflects that the Veteran has been diagnosed with a lumbar strain with mild L5/S1 facet arthropathy. See June 2015 VA Examination Report. The Veteran’s service treatment records do not show any complaints, treatment or diagnoses related to a low back disability. The Board notes that the Veteran has reported that she slipped on ice and twisted her back, as well as carried heavy hoses during service. See November 2019 Board Hearing Transcript p. 12. However, the Veteran acknowledged she did not seek medical care at the time, or until she came to VA for care in 2010, and that there has been no medical opinion offered where current back complaints were associated with service. The Veteran was examined for VA purposes in connection with this claim in June 2015, at which time the examiner concluded that it was less likely than not that the Veteran’s low back condition was related to her military service. The examiner based this opinion on the lack of documentation of a back injury in the service treatment records, as well as lack of treatment for such a condition for almost 10 years following separation from service. She further noted that the Veteran did not report a back condition at the time of separation. The Board affords the June 2015 VA opinion probative weight. In this regard, the examiner reviewed the Veteran’s file and addressed the pertinent evidence of record and explaining the basis for the opinion, as supported by the Veteran’s medical history. See Nieves- Rodriguez, supra. There is no medical evidence of record indicating that the Veteran’s low back disability is linked to her military service. The only evidence in support of this link is her own lay assertion. Lay persons are competent to provide opinions on some medical issues. See Kahana, supra. In this case, the Veteran is not competent to render an etiology opinion for her low back disability. Determining the etiology of the Veteran’s condition requires medical inquiry into musculoskeletal processes and functioning. Such internal processes are not readily observable and are not within the competence of the Veteran in this case. Because the Veteran’s lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran’s assertion that her low back disability was caused by her military service. As such, the preponderance of the evidence is against service connection for a low back disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for a bilateral knee disability is denied. The record reflects that the Veteran has been diagnosed with patellofemoral pain syndrome of both knees. See June 2015 Examination Report. The Veteran’s service treatment records do not show any complaints, treatment or diagnoses related to a knee disability. The Board notes that the Veteran has attributed her knee symptoms to jumping out of trucks, walking across pavement during service, and carrying hoses. See June 2015 VA Examination Report; November 2019 Board Hearing Transcript p. 16. This does not appear to describe any actual injury, but the Veteran was examined for VA purposes in June 2015. The examiner opined that the knee disability was less likely than not due to the Veteran’s military service. She based this opinion on the lack of evidence of an injury during service, as well as lack of treatment for such a condition for about 10 years following separation from service. The Board affords the June 2015 VA opinion probative weight. In this regard, the examiner reviewed the Veteran’s file and addressed the pertinent evidence of record and explaining the basis for the opinion, as supported by the Veteran’s medical history. See Nieves- Rodriguez, supra. As there have been no opinions submitted in favor of the Veteran’s claim, the June 2015 VA opinion is the only probative medical opinion of record. There is no medical evidence of record indicating that the Veteran’s bilateral knee disability is linked to her military service. The only evidence in support of this link is her own lay assertion. As discussed above, lay persons are competent to provide opinions on some medical issues. See Kahana, supra. In this case, the Veteran is not competent to render an etiology opinion for her knee disability. Determining the etiology of the Veteran’s condition requires medical inquiry into musculoskeletal processes and functioning. Such internal processes are not readily observable and are not within the competence of the Veteran in this case. Because the Veteran’s lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran’s assertion that her bilateral knee disability was caused by her military service. (Continued on the next page)   As such, the preponderance of the evidence is against service connection for a bilateral knee disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Erin J. Trojanowski, 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.