Citation Nr: 21000818 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-42 124 DATE: January 6, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. REMANDED Entitlement to service connection for a sinus condition (claimed as sinusitis) is remanded. Entitlement to service connection for epididymitis is remanded. Entitlement to service connection for a skin condition, to include acanthosis nigricans, dermatofibroma, and seborrheic keratoses, to include as due to exposure to hazardous vapors, oil fields, and particulate matter is remanded. Entitlement to service connection for a left knee condition, to include as secondary to service-connected right knee condition, left hip condition, and left foot condition is remanded. Entitlement to service connection for cervical spine degenerative disc disease (DDD) is remanded. Entitlement to service connection for a low back condition, to include as secondary to service connected right knee and left hip condition is remanded. Entitlement to service connection for gout in bilateral big toes and feet, to include as secondary to service-connected hypertension medication is remanded. Entitlement to service connection for a bilateral thumb condition is remanded. Entitlement to service connection for a bilateral elbow condition is remanded. Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected right knee, left hip, and/or left foot condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The weight of competent and credible evidence is against a finding that the Veteran has a current diagnosis of CFS, or in-service manifestations of symptomatology associated with CFS. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic fatigue syndrome (CFS) have not been met. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§ 3.303, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from September 1988 to September 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the September 2015, February 2017, and June 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The September 2015 rating decision denied service connection for sinusitis and epididymitis. The February 2017 rating decision denied service connection for a low back condition, cervical DDD, left knee condition, and a skin condition. The June 2018 rating decision denied service connection for CFS, bilateral thumb condition, bilateral elbow condition, bilateral ankle condition, bilateral gout, and sleep apnea. The issues of entitlement to service connection for service connection for a low back condition, cervical DDD, a left knee condition, a skin condition, and CUE in the September 2015 rating decision denying service connection for sinusitis and epididymitis were before the Board in July 2019 and all issues were denied. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (CAVC), and through a Joint Motion for Remand, July 2019 was vacated, and the issues remanded for further development. CAVC Decision, July 2020. Service Connection Generally, to establish service connection 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 between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for chronic fatigue syndrome (CFS) The Veteran asserts that he has a chronic fatigue syndrome which is attributable to his military service. A review of the evidence of record does not reflect a current diagnosis of or treatment for chronic fatigue syndrome. The Veteran’s service treatment record does not reflect complaints of, treatment for, or a diagnosis of symptoms related to CFS. In March 2018, the Veteran was afforded a VA CFS examination, where it was determined that the Veteran did not have a manifestation of symptomatology related to CFS. Since the Veteran was found to not have CFS, an opinion has to whether any symptomatology was related to Gulf War exposure was found to be unwarranted. See C&P Exam, March 2018. As the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of CFS or in-service manifestations of symptomatology associated with CFS, service connection is unwarranted and therefore, denied. REASONS FOR REMAND New and Material Evidence New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provision § 20.1304(b)(1) of this chapter) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The September 2015 rating decision denied service connection for a sinus condition and epididymitis. In March 2016, the Veteran asserted that the RO had committed clear and unmistakable error in denying service connection because the conditions were present during service. See VA 21-4138, March 2016. Regarding sinusitis, the Veteran noted that the decision letter stated that his service treatment records did not contain complaints, treatment, or diagnosis for this condition. In response, the Veteran reported that his service treatment records contained treatment dates for sinusitis on other occasions than November 1989 when he was grounded at the military hospital in Spain. Regarding epididymitis, the Veteran reported that he attached highlighted service treatment records and highlighted private records supporting his claim. The Board finds that the Veteran’s March 2016 statement should have been construed as submission of new and material evidence because the September 2015 rating decision was not a final adjudication. Further, the evidence provided by the Veteran was submitted with the one year of the rating decision, was not cumulative, was material to a previously unestablished fact, and raised a reasonable possibility of substantiating the claims. As such, the Board finds that the March 2016 lay statements and evidence is considered to have been filed in connection with the claims for service connection for a sinus condition and epididymitis which were pending since the September 2015 rating decision. 1. Entitlement to service connection for a sinus condition (claimed as sinusitis) The Veteran asserts that his sinusitis had its onset during military service. The September 2015 rating decision denied service connection for sinusitis because the RO determined that the Veteran did not have a current diagnosis of sinusitis and that his service treatment records did not contain complaints, treatment, or diagnosis for the condition. The Veteran’s service treatment records reflect treatment for multiple upper respiratory infections, which included nasal congestion in January 1989, November 1989, February 1990 and March 1991. See STR-Medical, June 1996 at p.28, 36, 54, 58, 70 of 117. A review of the of record of evidence reflects that the Veteran was diagnosed with sinusitis in 2002 and 2007. See Medical Treatment Record-Government Facility, September 2014. The Board notes that the Veteran was afforded a VA respiratory examination, but has not been afforded an VA ear, nose, and throat examination. Additionally, the Veteran asserts his sinusitis is caused by his in-service exposure to oil well fires, other contaminants, jet fuels, hydraulic fluids, and insecticides/pesticides. There has been no opinion obtained as to whether the Veteran’s sinusitis is directly caused by his military service. Therefore, the Board finds that a remand is required in order to obtain the nature and etiology of the Veteran’s sinus condition and an opinion as to whether the it is at least as likely as not caused by his military service. 2. Entitlement to service connection for epididymitis The Veteran asserts that his epididymitis had its onset during military service. See VA 21-4138, March 2016. The Veteran contends that his condition is attributed to all the long hours on the plane, crouching, restraining cargo, and contorting to get into different compartments. See Form 9, August 2018. In June 2015, the Veteran was afforded a VA male reproductive examination. The examiner noted that the Veteran was diagnosed with epididymitis in 1991. The Veteran reported that he has had occasional recurrences off and on since service. Examination revealed normal epididymitis. The examiner opined that the Veteran’s claimed epididymitis was less likely than not etiologically related to the in-service episodes of epididymitis. The September 2015 rating decision denied service connection for epididymitis because the RO determined that the evidence did not support the conclusion that a persistent disability was present during service. The Board notes that the service treatment records reflect that the Veteran was seen on October 22, 1990, October 29, 1990, October 31, 1990, February 1991, and April 1992 for recurrent epididymitis. See STR-Medical, June 1996 at p.24, 29, 41, 43, 44 of 117. An August 2008 private treatment record reflects a diagnosis of epididymitis. See Medical Treatment Record-Non-Government Facility, March 2016. The Board further notes that the June 2015 VA examination was inadequate, and opinion was not based on a complete review of the medical evidence of record. As such, the Board finds that the examination and opinion to be inadequate for rating purposes. Therefore, the Board finds that a new examination is necessary in order to obtain the nature and etiology of the Veteran’s epididymitis. Additionally, the Veteran has submitted medical lay evidence discussing the chronicity of epididymitis, which has not been addressed. See Third Party Correspondence, November 2020. 3. Entitlement to service connection for a skin condition, to include acanthosis nigricans & dermatofibroma to include seborrheic keratoses, to include as due to exposure to hazardous vapors, oil fields, and particulate matter The Veteran asserts that his skin condition is attributed to his exposure to hazardous vapors, oil fields, and particulate matter. During service the Veteran was treated for eczema and verruca vulgaris. See STR-Medical, June 1996. In January 2017, the Veteran was afforded a VA skin conditions examination. The examiner indicated that the Veteran was diagnosed with dermatofibroma in 2010 and seborrheic keratoses in 2015. During the examination, the Veteran was diagnosed with acanthosis nigricans. See C&P Exam, January 2017. The examiner opined that the skin conditions are “not as likely as not due to GW exposures” because “no medically plausible reason exists to make that assertion.” However, the examiner failed to mention or address the Veteran’s occupational exposure to hazardous vapors, oil fields, and particulate matter as a loadmaster during his deployment in the Gulf War. Moreover, the examiner did not provide a rationale for his conclusion including whether the disorder has an inconclusive etiology or pathophysiology that qualifies as a medically unexplained multisymptom illness. As such, the Board finds that the examination and opinion are inadequate for rating purposes. Therefore, the Board finds that a remand is required in order to obtain the nature and etiology of the Veteran’s skin condition and an opinion as to whether the it is at least as likely as not related to his military service. 4. Entitlement to service connection for a left knee condition, to include as secondary to service-connected right knee condition, left hip condition, and left foot condition The Veteran asserted that his left knee condition is secondary to his service connected right knee condition. See VA 21-4138, November 2016. In January 2017, the Veteran was afforded a VA knee examination. The examiner indicated that the Veteran had left knee bursitis. See C&P Exam, January 2017. The Veteran reported favoring right knee for several years, with pain starting about a year and a half prior to the examination. Additionally, the Veteran reported that his right knee has constant pain, but his left has intermittent pain that is sharper. The examiner opined that the Veteran's left knee condition was less likely than not proximately due to or the result of the Veteran's service-connected right knee condition because the Veteran had no compensatory mechanics noted during examination. The examiner stated that there was objective finding of mild tenderness of the pes anserine bursa that was not related to the Veteran’s right knee condition. However, the examiner failed to provide a rationale for this conclusion. The Board notes that the during the pendency of this appeal, the Veteran was granted service connection for a right knee, left hip, and left foot condition. In a July 2019 VA opinion, the examiner stated that the Veteran’s left hip strain was at least as likely as not second to his service connected right knee with increased weight bearing on the left intermittently. See C&P Exam (opinions), July 2019. Additionally, the examiner stated that the Veteran’s left foot condition was at least as likely as not second to his service connected right knee. Id. Therefore, the Board finds that an opinion as to whether the Veteran’s left knee condition is proximately due to or causally related to his service-connected right knee, left hip, and left foot condition is warranted. 5. Entitlement to service connection for cervical spine DDD 6. Entitlement to service connection for a low back condition, to include as secondary to service connected right knee and left hip condition The Veteran asserts that his cervical spine DDD and low back condition are attributed to his aircrew duties, which required movement in small/tight compartments and movement of odd sized and heavy cargo. See VA 21-4138, November 2016; NOD, February 2018. In January 2017, the Veteran was afforded a VA cervical spine and lumbar spine examinations. During the cervical spine examination, the Veteran reported that he was an aircraft member who worked in tight spaces and had to contort to get into certain spaces and do certain jobs. See C&P Exam, January 2017. The Veteran reported that he started having neck pain around 2010 for which he sought medical care. However, he asserted that he was experiencing occasional pain before that time but nothing significant enough to seek treatment. The examiner opined that the Veteran's cervical spine DDD was less likely than not incurred in or caused by the claimed in-service injury, event or illness because his service treatment records did not note any neck complaints or treatment during active service. During the Veteran lumbar spine examination, the Veteran was diagnosed with lumbosacral strain. The Veteran reported that he had to do a lot of lifting during active duty and feels that this aggravated his back. The Veteran reported that since service he has experienced intermittent pain mostly in the morning and in the middle of the day, which has progressively increased over the past 5-6 years. The examiner opined that the Veteran's lower back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because his service treatment records did not note any back complaints or injuries during active service. The examiner stated that there was no evidence of an injury during active service and no evidence of chronicity of condition. The Board notes that the examiner failed to mention or address the Veteran’s lay statements regarding his aircrew duties or the continuity of neck and low back pain, nor did he determine the etiology of the Veteran’s DDD and low back condition. Therefore, the Board finds that a remand is required in order to obtain the nature and etiology of the Veteran’s cervical spine DDD and low back condition; and opinions as to whether these conditions are it is at least as likely as not related to his military service. During the pendency of this appeal, the Veteran was granted service connection for a right knee and left hip condition. In a July 2019 VA opinion, the examiner stated that the Veteran’s left hip strain was at least as likely as not secondary to his service connected right knee with increased weight bearing on the left intermittently. See C&P Exam (opinions), July 2019. Therefore, the Board finds that an opinion as to whether the Veteran’s low back condition is proximately due to or caused or aggravated by his service-connected right knee and left hip condition is warranted. 7. Entitlement to service connection for gout in bilateral big toes and feet, to include as secondary to hypertension medication The Veteran asserted that his bilateral gout in his big toes and feet was due to Gulf War Environment Hazards. See VA 21-4138. The Veteran was afforded a VA Gulf War examination in March 2018. After examination, the examiner opined that Veteran’s gout is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. See C&P Exam, March 2018. The examiner noted, “the 2016 IOM report regarding Gulf War and Health does not support a relationship between this condition and Gulf War exposures.” Id. at p.10 of 15. A review of the evidence of record revealed a February 2010 VA Rheumatology note in which the rheumatologist considered a trial alternative of blood pressure medication given the history of the Veteran’s worsening gout. See Capri, February 2018. The Veteran has not been afforded a VA examination regarding his gout and no opinion has been obtained to determine whether the Veteran’s gout is etiologically related to his service-connected hypertension medication. Therefore, the Board finds that a remand is required in order to obtain the nature and etiology of the Veteran’s bilateral gout and an opinion as to whether the it is at least as likely proximately due to or causally related to his service-connected hypertension medication. 8. Entitlement to service connection for a bilateral thumb condition 9. Entitlement to service connection for a bilateral elbow condition 10. Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected right knee, left hip and left foot condition The Veteran asserted that his bilateral thumb, elbow, and ankle joint pain was due to Gulf War Environment Hazards. See VA 21-4138. The Veteran was afforded a VA Gulf War examination in March 2018. The Veteran reported that he has started having some wrist discomfort near base of thumb, about once a month, no known triggers, worse with moving basal joint of thumb when this happens and so avoids grabbing items or holding heavy items when this happens, usually lasts for about an hour, minimal effect on work due to slowing of typing. He reported having this happened only 1-2 times on right thumb area. See C&P Exam, March 2018. The Veteran reported dull ache on lateral elbow area at times. Additionally, the Veteran reported bilateral ankle pain. After examination, the examiner opined that these conditions were not related to Gulf War exposures. See C&P Exam, March 2018. However, the Board notes that the Veteran has not been afforded a VA musculoskeletal examinations for his thumbs, elbows, and ankles. Additionally, no opinion has been obtained regarding whether the claimed conditions are at least as likely as not related to the Veteran’s military service on a direct basis. Therefore, the Board finds that a remand is required in order to obtain the nature and etiology of the Veteran’s bilateral thumb, elbow, and ankle conditions and opinions as to whether the conditions are at least as likely as not related to his military service. 11. Entitlement to service connection for sleep apnea The Veteran asserted that his sleep apnea is attributable to his military service, to include exposure to hazardous fumes, fuel, and particulate matter. The Veteran was afforded a VA respiratory conditions other than tuberculosis and sleep apnea in June 2013. The examiner noted that the Veteran was diagnosed with obstructive sleep apnea is 2004. See C&P Exam, June 2013. The Veteran reported that he was exposed to aircraft fuel, hydraulic fluid vapors, oil well fires, and particulate matter. The examiner opined that the Veteran’s respiratory condition was less likely than not incurred in or caused by military service because the Veteran had obstructive sleep apnea and redundant tissue in the posterior pharynx. The December 2013 rating decision denied service connection for sleep apnea based on the determination that the Veteran had redundant tissue in the posterior pharynx. However, the Board notes that the Veteran was never afforded a VA sleep apnea examination. Moreover, the June 2013 opinion did not determine that the Veteran’s redundant tissue in the posterior pharynx was the cause of the Veteran’s sleep apnea. The RO denied service connection based on the June 2013 respiratory condition opinion, which was not the proper examination to access sleep apnea as clearly indicated on the examination report form. However, the Veteran did not appeal December 2013 rating decision and the decision became final. In February 2018, the Veteran submitted a requested to reopen claim for service connection for sleep apnea. See VA 21-4138, February 2018. In March 2018, the Veteran was afforded a VA CFS examination. The Veteran reported that around 1991 he was told by his brother that he snored loudly while home on leave. See C&P, March 2018. He reported having trouble falling asleep during service but attributed it to jet noise. In the June 2018 rating decision, the service connection for obstructive sleep apnea remained denied due to no new and material evidence. However, the Board finds that the Veteran’s the Veteran’s March 2018 lay statements are presumed credible and raised a reasonable possibility of substantiating the Veteran’s claim for service connection. To date, the Veteran has not been afforded a VA sleep apnea examination. Therefore, the Board finds that a remand is necessary in order to obtain the nature and etiology of the Veteran’s sleep apnea and opinion as to whether the conditions are at least as likely as not related to his military service, to include redundant tissue in the posterior pharynx. The matters are REMANDED for the following action: 1. Schedule the Veteran a VA ENT examination with the appropriate examiner in order to determine the nature and etiology of the Veteran’s sinus condition. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether it is at least as likely as not that the Veteran’s sinusitis onset in service or is caused by his military service, to include exposure to oil well fires, other contaminants, jet fuels, hydraulic fluids, and insecticides/pesticides. 2. Schedule the Veteran a VA male reproductive examination with the appropriate examiner in order to determine the nature and etiology of the Veteran’s epididymitis. The entire claims must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether it is at least as likely as not that the Veteran’s chronic epididymitis onset in service or is caused by his military service. Attention is directed to the material on this disorder submitted by the Veteran and posted to the electronic file on November 6, 2020. 3. Schedule the Veteran for VA examinations with the appropriate examiner in order to determine the nature and etiology of the Veteran’s left knee condition. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether it is at least as likely as not that the Veteran’s left knee condition is proximately due to or caused or aggravated by his service-connected right knee, left hip, and left foot. 4. Schedule the Veteran a VA cervical spine and lumbar spine examinations in order to determine the nature and etiology of the Veteran’s cervical DDD and low back condition. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine: (a) Whether it is at least as likely as not that the Veteran’s cervical spine DDD is at least as likely as not caused by his military service; and (b) Whether it is at least as likely as not that the Veteran’s low back condition is at least as likely as not caused by his military service and/or proximately due to or caused or aggravated by his service connected right knee and/or left hip condition. 5. Schedule the Veteran for VA examinations with the appropriate examiner in order to determine the nature and etiology of the Veteran’s bilateral gout of his big toes and feet. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether it is at least as likely as not that the Veteran’s bilateral gout is caused by his military service and/or proximately due to or aggravated by his service-connected hypertension medication. 6. Schedule the Veteran for VA examinations with the appropriate examiner in order to determine the nature and etiology of the Veteran’s bilateral thumb, elbow, and ankle conditions. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine: (a) Whether it is at least as likely as not that the Veteran’s bilateral thumb condition is caused by his military service; (b) Whether it is at least as likely as not that his bilateral elbow condition is caused by the Veteran’s military service; and (c) Whether it is at least as likely as not that the Veteran’s bilateral ankle condition is caused by his military service and/or proximately due to or aggravate by his service-connected right knee, left hip, and/or left ankle conditions. 7. Schedule the Veteran for VA examinations with the appropriate examiner in order to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether the Veteran’s sleep apnea onset during or is caused by exposure to hazardous fumes, fuel, and particulate matter and/or redundant tissue in the posterior pharynx. 8. Schedule the Veteran for a VA skin examination in order to determine whether the disorder onset in service or was caused by exposure to Gulf War hazards including the reported use of insecticides on aircraft. Following a review of the claims file, the examiner must opine whether any current skin disorder is cause by active service including exposure to Gulf War environmental hazards. The examiner must opine whether any current disorder has an inconclusive etiology or pathophysiology that qualifies as a medically unexplained multisymptom illness. 9. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiners should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion, or other information needed to provide the requested opinion. 10. After completing the requested actions, readjudicate the claims in light of all pertinent evidence. If the benefit sought remains denied, furnish to the appellant and his representative a Supplemental Statement of the Case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.