Citation Nr: 20008338 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-35 570 DATE: January 31, 2020 ORDER Entitlement to service connection for shortness of breath is denied. Entitlement to service connection for chest pain is denied. Entitlement to service connection for chronic fatigue is denied. Entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for an upper-GI disorder is denied. FINDINGS OF FACT 1. Chronic fatigue is not related to service. 2. Shortness of breath is not related to service. 3. Chest pain and pressure are not related to service. 4. Pseudofolliculitis barbae is not related to service. 5. A right shoulder disorder is not related to service. 6. An upper-GI disorder is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 2. The criteria for entitlement to service connection for shortness of breath have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 3. The criteria for entitlement to service connection for chest pain have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 4. The criteria for entitlement to service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 5. The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 6. The criteria for entitlement to service connection for an upper-GI disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from December 1973 to May 1977, and from November 1978 to September 1999. This appeal comes before the Board of Veterans’ Appeals (Board) from July 2012, March 2016, and September 2016, rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran only perfected appeals as to certain issues listed on the June 2017 Statement of the Case. On the VA Form 9, accepted as the substantive appeal, he indicated he did not wish to appeal a service connection claim for arthritis of the bilateral hands and a rating claim for pes planus. Accordingly, there is no active appeal of those issues, and the Board does not have jurisdiction over those matters. VA added treatment records to the claims file subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction (AOJ), and, in August 2019, the Veteran provided a written waiver of initial adjudication by the AOJ. Accordingly, the Board will consider that evidence in the first instance. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “objective indications of chronic disability” includes 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and 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, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Functional gastrointestinal disorders (excluding structural gastrointestinal diseases); Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multisymptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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 shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes 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’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for fatigue. Entitlement to service connection for shortness of breath. Entitlement to service connection for chest pain. In an August 2000 decision, VA denied claims of entitlement to service connection for fatigue, shortness of breath, and chest pain and pressure. VA reconsidered the claims on its own motion in November 2001 after sending the Veteran a more detailed notice letter under the Veterans’ Claims Assistance Act of 2000. The Veteran submitted a Notice of Disagreement in November 2001. The above issues were included in his specification of “Issue 1-6.” Specifically, the above issues were listed in the rating decision as issues 1, 2, and 3. The Veteran’s Notice of Disagreement was addressed by an April 2002 Decision Review Officer Decision. However, these issues were not listed in that decision or in the Statement of the Case of the same date. They also were not listed in an August 2003 Statement of the Case. The Veteran had requested an AOJ hearing regarding the appeal, but he did not attend. The Board finds no indication that he withdrew his Notice of Disagreement of these issues or that he otherwise limited his appeal. While he did not perfect the appeal regarding the issues listed in the Statements of the Case, as he never received a Statement of the Case addressing these issues, the Board finds his appeal remained pending through the current claim and appeal period. The service treatment records reveal treatment for various complaints in service, including fatigue and chest pain. However, these were attributed to the known diagnosis of viral syndrome and possible laryngitis and flu, not to any chronic disability. When examined at service separation in April 1999, clinical examination of the heart and respiratory systems was normal (Record 06/06/2015 at 28). A June 1999 Gulf War Questionnaire reveals that the Veteran reported experiencing fatigue and shortness of breath (Record 10/04/2016). A June 1999 Persian Gulf Illness examination noted complaint of fatigue and chest pain, but found normal clinical findings for every system except ears and feet (Record 06/06/2015 at 44). The Veteran was released from active duty on September 30, 1999. A December 1999 VA examination acknowledged complaints of shortness of breath, fatigue, as well as chest pain. While the examiner noted that shortness of breath “may be” secondary to underlying coronary artery disease, an examination of the heart and respiratory system, including a pulmonary function test, was normal. The examiner concluded that the suspicion of coronary artery disease was “very low.” Fatigue was noted to be secondary to shortness of breath per the Veteran. However, the examiner noted that his symptoms were very nonspecific (Record 12/28/1999). The evidence received since the pending November 2001 decision includes the Veteran’s reports of fatigue as a symptom on several occasions. In January 2013, he was noted to have “chronic fatigue” attributed to the known diagnosis of testicular failure. He was at that time receiving testosterone therapy and reported having fatigue for the past 20 years (Record 12/31/2012 at 61). A February 19, 2016, VA Primary Care Note reveals the Veteran when to the Emergency Department for chest pain. A cardiology workup was normal (Record 09/26/2018 at 247). A June 30, 2016, VA Gastroenterology Consult notes that the Veteran’s chest pain occurs after he eats big meals and at night. The Veteran reported that his symptoms worsened when he discontinued Nexium and improved when he increased the dose. The examiner recommended an increased dose of Nexium (Record 09/26/2018 at 231). The Veteran was afforded a VA Esophageal Conditions examination in July 2016. The examiner noted that the Veteran had a history of chest pain, which is now considered due to reflux. The examiner found that there were no esophageal conditions due to undiagnosed illness or for which the etiology was not established (Record 07/29/2016). After a review of all of the evidence, the Board finds that the criteria for service connection for the claimed fatigue, shortness of breath, and chest pain and pressure have not been met. Despite post-service examinations, the Veteran’s complaints have not been attributed to an undiagnosed illness or a medically unexplained chronic multisymptom illness. Indeed, the evidence, including the Veteran’s assertions, seems to link these symptoms to known medical conditions, which are not service-connected. The times during which the Veteran’s shortness of breath have been reported, such symptoms have been attributed to known disabilities or diseases. His shortness of breath has not been shown to be a chronic manifestation. As set out above, the Veteran has reported fatigue as a symptom on several occasions since service; and, in January 2013, he was noted to have “chronic fatigue.” However, this was attributed to the known diagnosis of testicular failure (Record 12/31/2012 at 61). Service connection for testicular failure has not been established. Accordingly, service connection on a secondary basis is not available. Regarding shortness of breath and chest pain and pressure, the Veteran now argues that shortness of breath is actually a symptom caused by his sleep apnea, and that pain and pressure in the chest are symptoms associated with his shortness of breath. However, sleep apnea and shortness of breath are not service-connected disabilities. Thus, the Veteran’s assertions do not suggest a new theory of service connection, such as secondary service connection, for which a medical examination need be provided. Moreover, the Veteran has also denied shortness of breath and chest pain in VA outpatient treatment reports, as recently as February 11, 2016 (Record 09/26/2018 at 253). In sum, the Board finds that the claimed fatigue, chest pain and pressure, and shortness of breath, are not related to service and do not represent a qualifying chronic Gulf War disability. In light of these findings of fact, the Board concludes that service connection for the claimed fatigue, chest pain and pressure, and shortness of breath, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for an upper-GI disorder. Entitlement to service connection for pseudofolliculitis barbae. Entitlement to service connection for a right shoulder disorder. The service treatment records reveal treatment for pseudofolliculitis barbae on several occasions, and the Veteran received a no-shaving profile. When examined at service separation in April 1999, clinical examination of the head, throat, skin, heart, upper extremities, gastrointestinal, and respiratory systems, was normal (Record 06/06/2015 at 28). The Veteran denied any history of, or current, swollen or painful joints or painful shoulder (Record 06/06/2015 at 30). An undated report reveals the Veteran fell on his right shoulder and strained his A/C joint. There was no evidence of separation and he had full range of motion (Record 06/06/2016 at 59). The Veteran was released from active duty on September 30, 1999. Examination of the bilateral shoulders in October 2006 showed no abnormalities (Record 12/31/2012 at 26). The Veteran was treated for a history of esophageal reflux and gastritis due to H-pylori on multiple occasions (Record 12/31/2012 at 11). The Veteran was afforded a VA skin examination in December 2012. Pseudofolliculitis barbae was not present on examination. The examiner found no skin condition of the head or face and no impairment of the Veteran’s ability to work (Record 12/20/2012 at 10). The Veteran was afforded a VA Esophageal Conditions examination in July 2016. The examiner noted that the Veteran had a history of chest pain, which is now considered reflux. The diagnoses included GERD and hiatal hernia established by fluoroscopy (Record 07/29/2016). The Veteran was afforded a VA Skin Diseases examination in January 2017. That examination reveals a remote diagnosis of pseudofolliculitis barbae with normal current examination (Record 01/04/2017). The examiner opined that the Veteran does not have a current diagnosis of pseudofolliculitis barbae that is at least as likely as not related to service. The rationale was that the Veteran was treated many years ago for pseudofolliculitis barbae; he has no current signs or symptoms of the condition (Record 01/04/2017). The Veteran was afforded a VA Shoulder examination in January 2017, which reveals a diagnosis of bilateral acromioclavicular joint arthritis (Record 01/04/2017). The examiner opined that this condition was less likely than (less than 50 percent probability) related to service. The rationale was that the Veteran has bilateral shoulder arthritis and the injury in service was to the right shoulder only. This injury was acute and resolved. X-rays were negative. There is no further diagnosis or treatment until 2015 (Record 01/04/2017 at 16). A February 3, 2017, record from the Neurological Spine and Pain Clinic notes that the Veteran’s right shoulder pain was related to arthritis and cervical spondylosis with radiculopathy (Record 04/25/2017). A March 2018 MRI alternately refers to the right shoulder and left shoulder as the shoulder being evaluated. The impression is of an interstitial tear of the distal supraspinatus tendon and mild acromioclavicular joint arthrosis. Left vs. right is not identified (Record 08/21/2018). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for the claimed pseudofolliculitis barbae, right shoulder disorder, and upper-GI disorder have not been met. While the Veteran has a current right shoulder disorder and an upper-GI disorder, the evidence does not substantiate a current pseudofolliculitis barbae disorder. Regarding each of the claimed conditions, the evidence does not substantiate attribution of the condition to the Veteran’s Persian Gulf service. The current right shoulder arthritis and interstitial tendon tear, GERD and hiatal hernia, and the pseudofolliculitis barbae, noted in service but not shown presently, are each attributed to known conditions. While arthritis and certain gastrointestinal disorders (peptic ulcers) may be subject to a presumption of service connection, in this case, there is no manifestation of these conditions to a degree of 10 percent or more within one year of service separation. The service separation examination included normal findings pertinent to the skin, digestive system and throat, as well as the upper extremities. This is persuasive evidence weighing against direct and presumptive incurrence. Service connection is in effect for a psychiatric disorder, a low back disorder, a bilateral foot disorder, a fungal disorder of the groin, bilateral knee disorders, and glaucoma. The evidence does not substantiate a secondary service connection association regarding the clamed upper-GI disorder and right shoulder disorder as related to these disabilities. Notably, service connection is not in effect for a cervical spine disability. Moreover, the medical opinion evidence regarding the right shoulder is against service connection. The Board has considered the Veteran’s lay assertions relating the claimed shoulder disorders and upper-GI disorder disorders to service. However, the Board finds that relating current GERD, hiatal hernia, and right shoulder arthritis/tendon tear to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge which is not capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the claimed upper-GI disorders and right shoulder disorders and service. While pseudofolliculitis barbae may be capable of lay observation, the condition was not present during multiple post-service VA examinations or at service separation. Thus, the chronic nature of the diagnosis in service or currently is not established. In sum, the Board finds that the claimed pseudofolliculitis barbae, right shoulder disorder, and upper-GI disorder are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed pseudofolliculitis barbae, right shoulder disorder, and upper-GI disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.