Citation Nr: 21000208 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 08-13 130 DATE: January 4, 2021 ORDER Entitlement to service connection for a neurological disability is denied. Entitlement to service connection for a gastrointestinal disability is denied. Entitlement to service connection for a sleep disability is denied. REMANDED Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for a psychiatric disorder other than schizoaffective disorder, to include an posttraumatic stress disorder (PTSD) and/or an anxiety disorder, is remanded.   FINDINGS OF FACT 1. The Veteran does not have service in Southwest Asia such that he meets the definition of a Persian Gulf Veteran under the provisions of 38 C.F.R. § 3.317(e). 2. The evidence of record does not reflect the presence of a current neurological disability. 3. The evidence of record does not reflect the presence of a current gastrointestinal disability. 4. The evidence of record does not reflect the presence of a current sleep disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neurological disability are not met. 38 U.S.C. §§ 1101, 1111, 1110, 1153, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.306, 3.307, 3.317. 2. The criteria for entitlement to service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 1101, 1111, 1110, 1153, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.306, 3.307, 3.317. 3. The criteria for entitlement to service connection for a sleep disability are not met. 38 U.S.C. §§ 1101, 1111, 1110, 1153, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.306, 3.307, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Unites States Army from July 1986 to July 1989, with additional periods of active service in the Army Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2012 and June 2018, at which time they were remanded for development. They have been returned to the Board for appellate review. The Board notes that prior Board remands have ordered development with respect to the Veteran’s claimed service in the Southwest Asia theater of operations during the Persian Gulf War for purposes of entitlement to service connection on a presumptive basis for certain disabilities under 38 C.F.R. § 3.317. While the record confirms active service in Jordan, that country is not considered part of the Southwest Asia theater of operations. Pursuant to the most recent Board remand, the RO confirmed that the record does not reflect active duty service in Southwest Asia for purposes of 38 C.F.R. § 3.317(e)(2). Accordingly, as the Veteran does not meet the definitions of qualifying service under 38 C.F.R. § 3.317, the Board cannot further contemplate any provisions of service connection under this section, as the provisions of this section are not applicable in the case at bar. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) As noted above, compensation for service connection requires a showing of the presence of a current disability. VA and private treatment records fail to establish that the Veteran has ever been diagnosed with the above-enumerated conditions, and VA examiners with whom he has met to determine the presence and etiology of those claimed conditions have agreed that he is not beset by any current neurological, gastrointestinal, or sleep-related disabilities. VA treatment records in this matter are consistently negative for neurological, gastrointestinal, or sleep disorders. The Veteran has never been explicitly diagnosed with any such disorders during the appeal period, and VA examinations have yielded no findings that such disorders are present. The Veteran was afforded VA examinations with respect to each of the above-enumerated disorders in April 2016. For each, the examiner found the Veteran has no current diagnosis. With respect to his claimed gastrointestinal disorder, the examiner explained that both service treatment records and post-service medical records were silent for “evaluation, diagnosis, or treatment for a chronic gastrointestinal disorder,” and that no such disorder was found on testing at the examination. Similarly, the April 2016 VA examiner found that both service treatment records and post-service medical records were silent for a neurological disorder, and no such disorder was found on testing. With regard to the claimed sleep disorder, the April 2016 VA examiner found no current sleep condition, noting the record was silent for such a condition, and the results of the examination did not warrant a diagnosis. The Veteran underwent a second round of examinations for his claimed conditions in early 2020. A March 2020 VA examiner concurred with the earlier finding that there was no indication of a gastrointestinal disorder. The Board observes that VA treatment records in the interim were similarly silent for any such condition. The March 2020 VA examiner further noted that, with respect to the claimed neurological condition, all testing was normal, and no CNS-related diagnosis was warranted. Finally, the March 2020 VA examiner indicated that no sleep-related diagnosis was warranted, which finding was confirmed by a normal April 2020 sleep study. The Board notes that the VA examiners’ findings summarized above are essentially uncontroverted by any objective evidence in the record, and no treating or examining provider has ever explicitly indicated that the Veteran has current gastrointestinal, neurological, or sleep disorders. Accordingly, the Board regards the VA examiners’ assessments, taken together, as the most probative evidence of record with respect to the question of the presence of current disabilities in this matter. In light of the lack of evidence of a neurological disorder, a gastrointestinal disorder, or a sleep disorder in the record, the Board finds that the Veteran has no neurological, gastrointestinal, or sleep disabilities, and as such, the preponderance of the evidence is against his claims of entitlement to service connection therefor. The claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Additional development must be completed before the Veteran’s claim for service connection for a headache disorder can be finally adjudicated. The Veteran has averred that he experienced headaches during active duty service, specifically during bootcamp. VA treatment records reflect periodic complaints of headaches, and show that providers prescribed the Veteran pain medication to treat headaches. Those records, however, remain bare of a formal diagnosis of a headache disorder. Moreover, a VA examiner with whom the Veteran met in April 2016 indicated that neither testing nor a review of the medical file indicated the presence of a chronic headache condition. However, a VA examiner with whom the Veteran met in March 2020 contradicted this finding, indicating that the Veteran has a current diagnosis of migraine headaches, listing 2004 as the original date of diagnosis. That examination report does not contain an opinion as to the etiology of the diagnosed migraine headaches. Thus, faced with conflicting evidence with respect to the presence and etiology of a headache disorder, the Board finds it necessary to return the medical file to the VA examiner with whom the Veteran met in March 2020 to clarify whether the Veteran has a current diagnosis of migraine headaches, and if so, whether that condition bears an etiological relationship to any aspect of active duty service. As with the Veteran’s claimed headache disorder, the record contains conflicting opinions as to whether the Veteran has chronic fatigue syndrome. The VA examiner with whom he met in April 2016 indicated that no such diagnosis was justified, whereas the March 2020 VA examiner furnished a diagnosis of chronic fatigue syndrome, but did not opine as to that disorder’s etiology. The Board observes that the March 2020 chronic fatigue syndrome diagnosis is not mirrored elsewhere in the record, but the Veteran has consistently advanced complaints of fatigue. On remand, the medical file should be returned to the VA examiner with whom the Veteran met in March 2020 to clarify whether the Veteran has a current diagnosis of chronic fatigue syndrome, and if so, whether that condition bears an etiological relationship to any aspect of active duty service. Finally, the Veteran has averred that he is entitled to service connection for posttraumatic stress disorder (PTSD). The Board observes that the Veteran has never been diagnosed with PTSD. Moreover, he is currently service connected for schizoaffective disorder. However, the Board notes that it is not incumbent on the Veteran to furnish an accurate diagnosis of his condition in order to prevail in his claim for service connection. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). VA examiners with whom the Veteran met in April 2016 and February 2020 agreed that the medical records have never confirmed a PTSD diagnosis, (listing only rule out diagnoses of PTSD,) and that a PTSD diagnosis was not appropriate based on those examinations. However, the Board observes that aside from his already service connected schizoaffective disorder, the Veteran has been diagnosed with an anxiety disorder by VA providers, ostensibly with symptomatology similar to that which the Veteran ascribes to PTSD. On remand, a new VA psychiatric examination must be ordered and an expert opinion obtained as to the presence of an anxiety disorder or other acquired psychiatric disorder, and the etiology of any such diagnosed disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to explore the presence and etiology of his claimed headache disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.  Please identify by medical diagnosis any current headache condition. For each diagnosis, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the disorder began in service or is otherwise related to service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 2. Schedule the Veteran for a VA examination to explore the presence and etiology of his claimed chronic fatigue syndrome. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.  Please identify whether the Veteran is beset by chronic fatigue syndrome. If so, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements.   It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.   The examiner should identify all current psychiatric disorders other than schizoaffective disorder. Specifically, the examiner should opine whether the Veteran has any comorbid psychiatric disorders with this service-connected schizoaffective disorder, including any anxiety disorder, or whether such claimed symptoms are part and parcel of (as opposed to separate and distinct from) that service-connected disability. In this regard, the examiner should specifically indicate whether the Veteran has separate and distinct anxiety or PTSD disorders, apart from his service-connected schizoaffective disorder. If PTSD is diagnosed, the examiner should indicate the stressors on which the Veteran’s PTSD is based and whether such stressors are related to military service.  For each psychiatric disorder found other than schizoaffective disorder and PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein.    In addressing the above opinion, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.