Citation Nr: 21002709 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-04 116 DATE: January 14, 2021 ORDER Entitlement to service connection for a neurological disorder, to include involving the extremities, as due to Gulf War illness, is denied. Entitlement to service connection for an acquired psychiatric disability is denied. The application to reopen a claim of service connection for fatigue and night sweats, to include as due to Gulf War illness, is denied. The application to reopen a claim of service connection for a sleep disorder, to include as due to Gulf War illness, is denied. The application to reopen a claim of service connection for short-term memory loss, to include as due to Gulf War illness, is denied. FINDINGS OF FACT 1. The Veteran’s radiculopathy of the bilateral lower extremities and bilateral knee disabilities are manifested by neurological symptoms in the bilateral lower extremities for which service connection has been granted. 2. The Veteran’s cervical spine disability and carpal tunnel syndrome are manifested by neurological symptoms involving the bilateral upper extremities. 3. The Veteran’s twitching of eyelids was not productive of functional impairment that could be compensated. 4. The Veteran’s twitching of the jaw was not productive of functional impairment that could be compensated. 5. The preponderance of the evidence of record is against finding that the Veteran’s neurological disability of the bilateral upper extremities began during active service, or is otherwise related to an in-service injury or disease, to include exposure to environmental hazards in the Gulf War. No unidentified neurological disorder due to Gulf War exposures has been identified. 6. The preponderance of the evidence of record is against finding that the Veteran has had compensable functional impairment due to twitching of the eyelids or the jaw at any time during or approximate to the pendency of the claim. 7. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder that is related to service at any time during or approximate to the pendency of the claim. 8. In October 1997, the Regional Office (RO) denied a claim for service connection for fatigue and night sweats; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. The finding was confirmed by unappealed rating action of June 2010, the last final decision on any basis. 9. Evidence received since the June 2010 rating decision does not raise a reasonable possibility of substantiating the claims of service connection for fatigue and night sweats. 10. In June 2010, the RO denied claims for service connection for a sleep disorder and short-term memory loss. Subsequent to a timely notice of disagreement, the RO reaffirmed the denial in an August 2011 statement of the case; the Veteran did not perfect his appeal and no new and material evidence was received within the appeal period. 11. Evidence received since the June 2010 rating decision does not raise a reasonable possibility of substantiating the claims of service connection for a sleep disorder and short-term memory loss. CONCLUSIONS OF LAW 1. The criteria for service connection for neurological disorder, to include as due to Gulf War illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The June 2010 decision that denied a claim for service connection for fatigue and night sweats is final. 38 U.S.C. § 7104 (b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Evidence received since the June 2010 rating decision denying service connection for fatigue and night sweats is not new and material and the claim is not reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7104 (b); 38 C.F.R. §§ 3.156, 20.1103. 5. The June 2010 decision that denied claims for service connection for a sleep disorder and short-term memory loss, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. Evidence received since the June 2010 rating decision denying service connection for a sleep disorder and short-term memory loss is not new and material and the claim is not reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7104 (b); 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to November 1993. The Veteran testified before the undersigned Veterans Law Judge during a February 2018 videoconference hearing; a transcript is of record. The Board previously remanded the issues for further development in November 2018. The case has now been returned to the Board for appellate review. Service connection for multiple issues was granted while the case was in Remand status, and those issues are no longer before the Board. The Veteran contends that he was exposed to environmental hazards in the Gulf War, to include smoke from oil well fires, and this exposure resulted in various disabilities. As noted in a November 2018 Board remand, there is no documentation evidencing such exposure or treatment for any resulting medical issues. However, the evidence shows that the Veteran served in the Persian Gulf from August 1990 to April 1991and received the Kuwait Liberation Medal. As such, the Board gives the Veteran the benefit of the doubt and finds that he was exposed to environmental hazards in the Gulf War. Service Connection Generally, service connection will be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection requires evidence demonstrating: (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. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after service 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, organic diseases of the nervous system, 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. The term “medically unexplained chronic multi-symptom 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability means a chronic disability resulting from (A) an undiagnosed illness or (B) a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317 (a)(2)(i). Examples of medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms include: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases), such as irritable bowel syndrome. Id. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed disability and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id. at 9. 1. Service connection for a neurological disorder The Veteran contends that he has twitches of the arms, legs, shoulder, jaw, and eyelids as well as numbness of the arms and hands as a result of his service, to include his service in the Gulf War. Here, as noted above, the Board finds that the Veteran is presumed to have been exposed to environmental hazards in the Gulf War. However, the weight of the evidence is for finding that the Veteran’s neurological symptoms have been attributed to diagnosed conditions and medically explainable. The August 2019 VA examination attributes the symptoms involving the bilateral lower extremities to his radiculopathy of the lumbar spine and bilateral knee disabilities. Similarly, those involving the bilateral upper extremities have been attributed to his neck disability and carpal tunnel syndrome. Lastly, a February 2000 VA treatment record attributed bilateral eyelid twitching to dry eyes. The Board notes that the Veteran is service connected for radiculopathy of the bilateral lower extremities and bilateral knee disabilities. As for the twitching of the jaw, the medical evidence of record preponderates against finding that it is productive of a functional impairment that could be compensated, for the medical records do not show that the Veteran has sought medical treatment for this condition for the entire appeal period. As for the twitching of eyelids, the Veteran reported these symptoms resolved during the August 2019 VA examination. As for his carpal tunnel syndrome, the Veteran reported having had a bilateral wrist injury at work and was diagnosed with carpal tunnel based on EMG in 2007. The examiner noted that an EMG in 2010 was normal. See August 2019 VA examination. The Board notes that the Veteran complained about stinging in the left arm and numbness, tingling, and pain in the right hand after stories fell from a forklift while in service in September 1987 according to his service treatment records. However, the evidence indicates that this was an acute episode, which did not result in subsequent, regular followup treatments while in service and resolved by the time he left service in 1993, as evidenced by his separation examination. As for cervical disability, the Veteran was diagnosed with degenerative disease of the cervical spine in a May 2010 VA examination. A February 2014 VA treatment record indicates that he reported having neck pain for 2 years. His service treatment records do not reflect any injury, complaint, or treatment involving his neck. The weight of the evidence is against finding that the Veteran’s cervical spine disability manifested to a compensable degree within one year after separation. For the foregoing reasons, the Board finds that the weight of the evidence is against finding that the Veteran’s diagnosed disabilities productive of the reported neurological symptoms in the bilateral upper extremities are related to his military service, to include exposure to environmental hazards or that the symptoms of eyelids and jaw are productive of a functional impairment that could be compensated. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability to service, he is not competent to opine on the etiology of a complex neurological condition, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no medical evidence or opinion in support of his claim for the neurological disorder. Accordingly, the claims must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. 2. Service connection for an acquired psychiatric disorder The Veteran contends that he has obsessive compulsive thoughts and was diagnosed with depression shortly after returning from the Persian Gulf. The last prior final denial was based on the finding by an April 2010 VA examination, which found no current psychiatric diagnosis in accordance with DSM criteria. In order to ascertain current diagnosis and etiology, the Board remanded the issue for a new VA examination. In August 2019, the Veteran underwent a VA examination. The examiner found no current psychiatric diagnosis that is related to service is warranted for the Veteran’s reported symptomatology under either DSM-IV or DSM-5. Although updates have been made to the previous examination from 2010, there was essentially no new or additional findings in the August 2019 VA examination. The Board acknowledges that the August 2019 examiner indicated the Veteran might have had adjustment disorder in the past, but the examiner stated that it was due to post-service work conflict and that particular stressor was resolved. The lay statements from the Veteran regarding symptomatology are competent and credible. Nevertheless, the Veteran is not competent to provide a psychiatric diagnosis under DSM. Thus, his statements that provide diagnosis for his psychological symptoms are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of competent evidence that a current diagnosis of an acquired psychiatric disorder exists, the criteria for establishing service connection for a psychiatric disability have not been established. 38 C.F.R. § 3.303. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. New and Material Evidence A finally denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 3. Application to reopen the claim of service connection for fatigue and night sweats 4. Application to reopen the claim of service connection for a sleep disorder 5. Application to reopen the claim of service connection for short-term memory loss As for the fatigue and night sweats, the Regional Office (RO) denied service connection in an October 1997 rating decision because the evidence did not show any chronic disability resulting in fatigue or night sweats currently existed and was incurred in or aggravated by military service nor evidence of any undiagnosed chronic disability or diagnosed medically unexplained chronic disability of unknown etiology, which arose during service in the Gulf War. The Veteran did not file a Notice of Disagreement and no new evidence was submitted within one year of the administrative decision. 38 C.F.R. § 3.156 (b). The denial became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). In June 2010, the RO denied application to reopen the claim of service connection for fatigue and night sweats because no new and material evidence was submitted since the prior final decision issued in October 1997. This then became the last final decision on any basis for these claims. As for the issues of sleep disorder and memory loss, in June 2010, the RO denied service connection for a sleep disorder and short-term memory loss because the evidence did not show evidence of a currently diagnosed chronic condition which began or caused by service nor evidence of any undiagnosed chronic disability or diagnosed medically unexplained chronic disability of unknown etiology, which arose during service in the Gulf War. The Veteran’s notice of disagreement was received in July 2010. Subsequently, the RO issued a statement of the case in August 2011. The appeal was not perfected during the appeal period. Thus, the June 2010 rating decision is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). The Board acknowledges that, in the July 2020 supplemental statement of the case, the RO addressed the merits of the service connection claims. However, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence received since the last final rating decision includes VA treatment records, lay statements, and VA examination reports, which do not show findings of a current diagnosis of chronic disabilities involving fatigue and night sweats, a sleep disorder, and short-term memory loss. Neither do they show that the claimed disabilities manifest functional impairment compensable to a 10 percent under a diagnostic code. The most recent VA examination, conducted in August 2019 and updated the pervious April 2010 VA examination, considered current, reported symptoms of irritability, sleep difficulty, avoidance, difficulties with spelling words, finding words, and remembering names. The examiner determined that the Veteran does not have any psychiatric disability under either DSM-IV or DSM-5. Indeed, the findings of the August 2019 examination are essentially the same as the April 2010 VA examination, where his complaints of fatigue, memory deficits, night sweats, and sleep difficulty were evaluated. Both examiners did not find any diagnosis under DSM. Both agreed that the Veteran’s reported symptoms would not warrant a need for further treatment, in part, due to inconsistent representations. None of the new evidence associated since the last prior final decision does not show findings of a current diagnosis of fatigue and night sweats, sleep disorder, or short-term memory loss. Nor does it show any impairment due to these conditions compensable at 10 percent. While the evidence is new, it is not material because it does not relate to an unestablished fact necessary to substantiate this claim on appeal, to include a current disability. As a result, this claim is not reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.