Citation Nr: 21001443 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-35 452 DATE: January 8, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. Entitlement to service connection for chronic fatigue syndrome, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. Entitlement to service connection for muscle pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. Entitlement to service connection for joint pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. FINDINGS OF FACT 1. The Veteran’s GERD did not have its onset during active service, nor is it otherwise related to service, to include exposure to environmental hazards during the Gulf War. 2. The Veteran does not have a “qualifying chronic disability” manifested by chronic fatigue syndrome, including as a result of service in the Persian Gulf War; nor is there any indication that the Veteran has a relevant disability for which service connection can be awarded. 3. The Veteran does not have a chronic disability manifested by muscle pain which manifested during active service, including as a result of service in the Persian Gulf War; nor is there any indication that the Veteran has a relevant disability for which service connection can be awarded. 4. The Veteran does not have a chronic disability manifested by joint pain, which manifested during active service, including as a result of service in the Persian Gulf War, nor is there any indication that the Veteran has a relevant disability for which service connection can be awarded. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317. 2. The criteria for service connection for chronic fatigue syndrome, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317. 3. The criteria for service connection for muscle pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317. 4. The criteria for service connection for muscle pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to June 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2019. In November 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that available service treatment records provided by the Veteran have been associated with the claims file. VA attempted to obtain the rest of the Veteran’s service treatment records, but an August 2013 VA Formal Finding of Unavailability reflects that attempts have been futile. As not all of the service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt standard of proof. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “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 between the present disability and the disease or injury incurred or aggravated during service” the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Regulations provide that compensation may be paid to any Persian Gulf War veteran “suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses).” 38 U.S.C. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317(b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a 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. Id. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) irritable bowel syndrome (IBS); or (4) 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; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). To date, VA has not identified any other medically unexplained chronic multi-symptom illnesses for purposes of 38 C.F.R. § 3.317. Entitlement to service connection for GERD, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. The Veteran seeks service connection for GERD. He asserts that his esophageal problem is related to his service in the Persian Gulf War. At his August 2019 Board hearing, the Veteran noted that he took medication on a daily basis for his condition. The Board notes that the Veteran’s report of esophageal problems have been attributed to a known clinical diagnosis, GERD. (See October 2014 and February 2020 VA examination reports). As his esophageal condition has been associated with a clinical diagnosis, the Gulf War Veteran presumption of service connection under 38 U.S.C. § 1117, and 38 C.F.R. § 3.317 do not apply in this matter. Although the Gulf War presumption does not apply in this case, the Veteran may be entitled to service connection on a direct basis. Service treatment records are silent for complaints or treatment for any gastrointestinal problems while in service. The Veteran was afforded a VA esophageal conditions examination in October 2014. It was noted that the Veteran experienced persistently recurrent epigastric distress. No esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus were found. A diagnosis of GERD was provided. The Veteran was afforded a VA esophageal conditions examination in February 2020. The Veteran noted experiencing heartburn and that he took Pepcid for the condition. Symptoms of reflux and substernal pain were noted. A diagnosis of GERD was provided. The VA examiner opined that the Veteran’s GERD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that GERD was a diagnosable chronic multi- system illness with a partially explained etiology and was not related to presumed environmental exposures experienced by the Veteran. GERD was a common digestive disorder that affected the lower esophageal sphincter (or LES), which is the ring of muscle that lies between the esophagus and the stomach. The most common symptoms of GERD were heartburn, epigastric pain, nausea and vomiting or acid indigestion. These occurred when LES was weak and even though it opens to allow food to pass into the stomach, it does not close properly, so food and acidic stomach juices reflux, or return, back up into the esophagus. Typically, GERD symptoms occur after eating, and in most cases symptoms lesson due to adopting healthy diet and lifestyle changes. It was a well-established fact that certain medications, lifestyle choices, and non-related physical disorders could contribute to GERD. There was no evidence of GERD symptoms or medical care sought for GERD in the Veteran’s medical record; therefore, it was less likely related to exposure to Southwest Asia. A September 2020 VA medical opinion shows that the VA examiner noted that the Veteran’s medical records did not support that the claimed condition, GERD, was related to the Veteran’s service. The Veteran was diagnosed with GERD in 2014. Veteran had had multiple problems with gastrointestinal symptoms since then. There was little evidence to support that the GERD symptoms were present during his active duty military service. It was well-known that GERD occurred from dietary indiscretion stress and lifestyle in general. After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for GERD. The Veteran is currently diagnosed with GERD, a known clinical diagnosis and not an “undiagnosed illness.” However, there is no medical opinion linking the Veteran’s GERD disability to service. The only competent medical opinions of record addressing the relationship between the current condition and service are those of the VA examiners, and such opinions are against the claim. In this regard, the Board finds the opinion of the February 2020 and September 2020 VA examiners to be most probative. The opinions were provided based upon a comprehensive review of the claims file and examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no competent and probative medical opinion to the contrary. While the Veteran contends that his GERD is related to his military service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). In this regard, the diagnosis of an esophageal disorder requires medical testing and training to identify. Thus, the Veteran’s lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for GERD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to service connection for chronic fatigue syndrome, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. The Veteran seeks service connection for chronic fatigue syndrome. He asserts that his fatigue is related to his service in the Persian Gulf War. At his August 2019 Board hearing, the Veteran noted that he was tired all the time. For VA purposes, a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: acute onset of the condition; low grade fever; nonexudative pharyngitis; palpable or tender cervical or axillary lymph nodes; generalized muscle aches or weakness; fatigue lasting 24 hours or longer after exercise; headaches (of a type, severity or pattern that is different from headaches in the premorbid state), migratory joint pains, neuropsychologic symptoms, and/or sleep disturbance. 38 C.F.R. § 4.88(a). The Board notes that the Veteran does qualify as a “Persian Gulf Veteran.” The Board has considered the applicability of the special rules regarding compensation for Gulf War veterans who suffer from qualifying chronic disabilities. Chronic fatigue syndrome is also listed as an example of a medically unexplained chronic multisystem illness for which compensation is available to Persian Gulf veterans. 38 C.F.R. § 3.317(2)(i)(b)(1). However, the Veteran’s service connection claim for chronic fatigue syndrome cannot be granted under the regulations governing compensation for Persian Gulf veterans for the same reason that his claim cannot be granted more generally; as described below, the evidence of record does not reflect that the Veteran has been diagnosed with chronic fatigue syndrome. Service treatment records are negative for complaints or findings of fatigue. A VA chronic fatigue syndrome examination report, dated in October 2014, shows that low back pain was found. The Veteran was afforded a Gulf War examination in October 2014 and in February 2020. Each VA examiner noted that there were no diagnosed illnesses for which any etiology was established and no signs and/or symptoms that may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness”. The Veteran was afforded a chronic fatigue syndrome examination in February 2020. No findings, signs or symptoms attributable to chronic fatigue syndrome where found upon examination. No cognitive impairment attributable to chronic fatigue syndrome was noted. The VA examiner opined that the Veteran’s chronic fatigue syndrome was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that for the claimed condition of chronic fatigue syndrome, there was no diagnosis because there were no findings, signs, or symptoms to support a diagnosis. In order to prevail on a claim of service connection for any disability, it must first be shown that a veteran has a current diagnosis of the disorder in question. See Brammer, supra; McClain v. Nicholson, 21 Vet. App. 319 (2007). Since the Veteran has not been diagnosed with chronic fatigue syndrome, service connection is not warranted on this basis. Further, the Board considered the Veteran’s claim for service connection for “chronic fatigue syndrome” more broadly as a claim for service connection for an undiagnosed or medically unexplained multisymptom illness other than chronic fatigue syndrome. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the October 2014 and February 2020 Gulf War General Medical Examination reports show that there were no signs and/or symptoms that may represent an “undiagnosed illness” or “medically unexplained chronic multisymptom illness,” and the medical records do not show that the Veteran has an undiagnosed illness or a medically unexplained chronic multisymptom illness for which generalized fatigue is a symptom. Therefore, service connection is denied. While the Veteran believes that he has chronic fatigue syndrome which could be attributed to his active service, to include his contentions during his August 2019 Board hearing, he lacks the medical training, credentials, or other expertise needed to render a competent diagnosis of a chronic fatigue syndrome disability. See Jandreau, supra. As such, his statements are not competent evidence as to the etiology of his claimed chronic fatigue syndrome disability. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for chronic fatigue syndrome is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to service connection for muscle pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. The Veteran seeks service connection for muscle pain. He asserts that he has muscle pain that is related to his service in the Persian Gulf War. At his August 2019 Board hearing, the Veteran stated that he experienced pain in his muscles and noted taking medication for it. Service treatment records are negative for complaints or findings of muscle pain. The Veteran was afforded a VA muscle injuries examination in September 2014. A diagnosis of muscle pain was provided. It was noted that the only muscle pain the Veteran had were his lumbar paraspinal muscles. The VA examiner noted that the Veteran complained of no particular muscle pain except that associated with his low back pain. There was no nexus of chronicity for the claim. The Veteran was afforded a Gulf War examination in October 2014. Severe low back pain was found upon examination. The Veteran was afforded a VA muscle injuries examination in February 2020. No diagnosis was provided. The VA examiner noted that for the claimed condition of unspecified muscle condition with pain, there was no diagnosis because there were no findings, signs, or symptoms to support a diagnosis. Based upon the evidence of record, the Board finds that a chronic disability manifested by muscle pain was not manifest during active service. The Board notes that the Veteran is already service connected for a lower back disability. (See September 2020 Rating Decision). Both VA examination reports dated in 2014, show that the Veteran’s claimed muscle pain was attributable his lumbar spine. Further, the Veteran noted muscle pain, only, in his back. Next, the February 2020 report reflects that the Veteran did not report any muscle pain upon examination. In this case, there are no objective clinical indications that the Veteran has a chronic disability manifested by complaints of muscle pain. Given the foregoing, the Veteran is not shown to have a “qualifying chronic disability” involving any claimed symptom other than the already service-connected lower back. 38 C.F.R. § 3.317(a)(2)(i). The preponderance of the evidence also fails to establish that a present disability is etiologically related to service, as the February 2020 VA examiner noted that there was no diagnosis for the claimed condition of unspecified muscle condition with pain, because there were no findings, signs or symptoms to support a diagnosis. While the Veteran believes that he has muscle pain attributed to his Persian Gulf service, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires knowledge of the musculoskeletal system. Jandreau, supra. As such, his statements are not competent evidence as to the etiology of his claimed disability. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved. and service connection for muscle pain is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to service connection for joint pain, to include as due to exposure to environmental hazards as a result of service in the Persian Gulf War, is denied. The Veteran seeks service connection for joint pain. He asserts that he has joint pain that is related to his service in the Persian Gulf War. At his August 2019 Board hearing, the Veteran stated that he experienced pain in his joints and noted taking medication. The Board has considered whether his joint pain is a qualifying chronic disability subject to service connection pursuant to 38 U.S.C. § 1117. As noted above, the October 2014 and February 2020 VA examiners who conducted the Gulf War General Medical Examinations found that there were no diagnosed illnesses for which any etiology was established and no signs and/or symptoms that may represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness”. Further, post-service medical records do not list any joint pain as a symptom of an undiagnosed disease or with an unknown etiology. February 2020 VA examination reports for knees, ankles and lumbar spine, show that the Veteran reported pain associated with these musculoskeletal areas. The Board notes that in a September 2020 rating decision, service connection was granted for the Veteran’s claimed bilateral knee, bilateral ankle and low back disabilities. Therefore, the Board finds that the Veteran’s joint pain is not presumptively due to his service in the Persian Gulf War. 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. § 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 joint pain, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for joint pain is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.