Citation Nr: 21004455 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-36 139 DATE: January 27, 2021 ORDER An effective date of March 31, 2009, but no earlier, for the award of entitlement to service connection for an acquired psychiatric disorder, is granted. Entitlement to service connection for a disability characterized as temporal lobe damage, status post hypoxia, is denied. Entitlement to service connection for disability manifested by left inguinal pain, to include hernia, is denied. Entitlement to service connection for chronic fatigue syndrome is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. VA received the Veteran’s claim for entitlement to service connection for a psychiatric disability, to include PTSD, on March 31, 2009. 2. The most probative evidence reflects that the Veteran’s disability, characterized as temporal lobe damage, status post hypoxia, is not related to his military service or his service-connected PTSD. 3. The most probative evidence reflects that the Veteran’s left inguinal pain, to include hernia is not related to his military service. 4. The most probative evidence reflects that the Veteran’s fatigue is a symptom of his service-connected PTSD, but not a separate disability for which compensation may be paid. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of March 31, 2009, but no earlier, for the award of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 2. The criteria for entitlement to service connection for a disability characterized as temporal lobe damage, status post hypoxia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for disability manifested by left inguinal pain, to include hernia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas; a September 2015 rating decision from the RO in Atlanta, Georgia; a March 2017 rating decision from the RO in Oakland, California; and a July 2017 rating decision from the RO in St. Paul, Minnesota. The Veteran testified at a Board hearing in January 2018. A transcript of that hearing has been associated with the claims file. The Judge who conducted that hearing has retired from the Board. The Veteran was informed of this development and was notified that he was entitled to an additional Board hearing. The Veteran declined to attend an additional Board hearing. In May 2018, the case came before the Board. The Board dismissed the claims for entitlement to service connection for an eye disability and a bladder disability. The Board also dismissed the claims for entitlement to a compensable rating for loss of sense of smell and taste. The Board remanded the Veteran’s claims for entitlement to service connection for a low back disability, a right knee disability, a neck disability, a hernia disability, sleep apnea, a temporal lobe disability, and a chronic fatigue disability in order for the Veteran to attend VA examinations. The Board also remanded the Veteran’s claim for entitlement to an earlier effective date for service connection for PTSD for an additional examination to determine if this disability was present prior to January 28, 2014. In September 2019, the case returned to the Board. The Board remanded all of the Veteran’s claims on appeal because additional VA treatment records were added to the file, but the Agency of Original Jurisdiction (AOJ) did not review this information and issue a Supplemental Statement of the Case (SSOC). Thus, the Board requested the RO review this information and issue an SSOC. In addition, the Board remanded the Veteran’s claims for entitlement to service connection for a low back disability, neck disability, and right knee disability in order for the RO to obtain an addendum opinion that addressed all of the Veteran’s in-service injuries. Lastly, with respect to the issues of entitlement to service connection for sleep apnea and temporal lobe damage, the Board remanded these clams in order for the RO to obtain an addendum opinion that adequately addressed the theory of aggravation. The Board notes that screenshots uploaded to the claims file on May 6, 2019, indicated that the Veteran declined examinations regarding the issues of a temporal lobe disability and a hernia disability. The Board finds that the RO substantially complied with the previous remand directives and no further development for these issues will be necessary. The Board will now adjudicate these issues on the merits. Earlier Effective Date 1. Entitlement to service connection for an acquired psychiatric disorder prior to January 28, 2014 The Veteran is seeking an earlier effective date for the award of service connection for PTSD. A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). On March 31, 2009, VA received the Veteran’s claim for entitlement to service connection for “PTSD, mental health condition due to combat in Iraq.” In March 2010, the RO issued a rating decision that denied entitlement to service connection for PTSD. In May 2010, the RO issued a rating decision that denied entitlement to service connection for depression, anxiety, a mood disorder, and an adjustment disorder. In September 2010, VA received the Veteran’s notice of disagreement for depression and PTSD. In July 2017, the RO issued a rating decision that awarded entitlement to service connection for PTSD. The RO assigned an effective date of January 28, 2014. The RO found that January 28, 2014 was the date that entitlement arose because this was the first evidence of record that established that the Veteran met the diagnostic criteria for PTSD. A review of the record indicates that the Veteran was diagnosed with multiple mental health disorders, to include PTSD, prior to the filing of his claim for service connection. In sum, the Board finds that an effective date prior to January 28, 2014 is warranted. In the present case, the record reflects that VA received the Veteran’s claim for entitlement to service connection on March 31, 2009, and that entitlement to service connection for PTSD arose prior to this claim. Accordingly, the Board finds an effective date of March 31, 2009 is warranted. Service Connection The Veteran contends that his disabilities are due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for a disability characterized as temporal lobe damage, status post hypoxia, is denied As to a current diagnosis, the Board notes that the record is silent a diagnosis of a temporal lobe disorder. As to the in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for any treatment or a diagnosis for a temporal lobe disorder. Turning to the medical evidence at hand, the Board notes that a Gulf War General Medical Examination dated June 23, 2015, failed to show an undiagnosed illness associated with temporal lobe damage or a diagnosis of a temporal lobe disorder for which no etiology was established or a diagnosed medically unexplained chronic multi-symptom illness. An additional Gulf War General Medical Examination dated November 15, 2016 failed to show an undiagnosed illness associated with temporal lobe damage or a diagnosis of a temporal lobe condition for which no etiology was established or a diagnosed medically unexplained chronic multi-symptom illness. In March 2019, a VA examiner reviewed the Veteran’s claims file and offered an opinion regarding the claimed temporal lobe disorder. The examiner found that there is “no evidence to suggest a causal relationship between temporal lobe damage and PTSD. Therefore, it is less than likely that temporal lobe damage is a manifestation of the Veteran’s service-connected PTSD.” In July 2019, an addendum opinion was obtained in order to address the theory of aggravation. The examiner found that it is less than likely that the Veteran’s temporal lobe damage has been aggravated by the Veteran’s PTSD with alcohol use disorder and major depressive disorder. The examiner stated that the Veteran’s records were thoroughly reviewed. The examiner stated that there was no evidence to suggest that the Veteran’s temporal lobe damage has been aggravated by the Veterans service-connected PTSD with alcohol use disorder and major depressive disorder. The examiner stated that frontal lobe damage is unrelated to PTSD, alcohol use, and/or major depressive disorder. The examiner stated that these are separate disorders and do not share a relationship due to aggravation. In May 2019, the Board notes that the Veteran declined a Traumatic Brain Injury examination. In sum, the Board finds that service connection for a temporal lobe disorder is not warranted. After a review of the Veteran’s claims file, the Board has found no in-service event, injury, or disease that has caused the Veteran to develop this claimed disorder. Moreover, the Veteran’s post-service medical history contains no evidence that demonstrates that his claimed disability is related to his military service or his service-connected PTSD. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for a temporal lobe disability is not warranted. 3. Entitlement to service connection for disability manifested by left inguinal pain, to include hernia, is denied. As to a current diagnosis, the Board notes that the record does not show a current diagnosis for an inguinal hernia; however, the Veteran is competent to report pain in this region of the body. As to the in-service incurrence, the Board notes that the Veteran experienced a muscle strain in service and an inguinal hernia was ruled out. The Board further notes that the Veteran’s separation examination was silent for a diagnosis of a hernia. As to the Veteran’s lay statements, the Board acknowledges that he has attributed his groin pain to this military service. Turning to the medical evidence at hand, the Board notes that a Gulf War General Medical Examination dated June 23, 2015, failed to show an inguinal hernia. An additional Gulf War General Medical Examination dated November 15, 2016 failed to show an inguinal hernia. In May 2019, the Veteran declined to attend an additional VA examination for this issue. The Board has also reviewed the Veteran’s VA treatment records. The Board notes that the Veteran has reported groin pain; however, a 2017 VA treatment note indicated that there was “no evidence of inguinal hernia on exam.” In sum, the Board finds that service connection for an inguinal hernia to include groin pain is not warranted. A review of the Veteran’s post-service medical history contains no evidence that demonstrates that the Veteran currently has a diagnosis for an inguinal hernia. The Board further notes that the Veteran’s post-service medical records are silent for a medical opinion that has attributed the Veteran’s groin pain to his military service. The Board has considered the Veteran’s contentions that he suffers from a groin injury; however, the Veteran’s contentions are outweighed by the Gulf War examiners’ medical opinions that failed to find a musco-skeletal injury or an injury to the abdomen that was related to his military service. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for groin pain to include an inguinal hernia is not warranted. 4. Entitlement to a service connection for chronic fatigue syndrome is denied. The Board acknowledges that the Veteran reports feeling fatigued. Turning to the medical evidence at hand, the Board notes that a VA examiner provided an opinion in March 2010. The examiner stated that the Veteran has fatigue but, he does not have chronic fatigue syndrome. The examiner stated that the Veteran’s fatigue is likely multifactorial including sleep apnea, depression, anxiety, neck, and back pain. The examiner stated that the Veteran does not fulfill the criteria for chronic fatigue syndrome. Lastly, the examiner stated that he has other conditions that produce fatigue. In March 2019, an additional opinion was obtained in order to determine whether this disorder was a separate compensable disability or a symptom that was included in his psychiatric disorder. After a review of the record, the examiner found that “fatigue is a common symptom of PTSD and major depressive disorder, per DSM-5. Thus, fatigue is more likely than not is a manifestation of his service-connected disabilities, as he is service connected for PTSD. In sum, the Board finds that entitlement to a separate compensable rating for chronic fatigue syndrome is not warranted. After a review of the record, the Board finds the March 2010 and March 2019 VA examination reports, which found that the Veteran’s disability is a symptom that is included in his service-connected PTSD is the most probative evidence of record. The Board has considered the Veteran’s contentions; however, the Veteran’s contentions are outweighed by the findings of the VA examiners because the VA examiners have the medical training to provide an opinion regarding the etiology of the Veteran’s disability. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for chronic fatigue syndrome, must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a neck disability is remanded. The Board notes that the RO obtained an addendum opinion for these disabilities in November 2019. Following a review of the claims file, the examiner found that these disabilities were not related to the Veteran’s military service because his records did not demonstrate a “chronicity of condition” and that these disorders were not noted on the Veteran’s separation examination. The Board finds these opinions inadequate because the examiner based his opinions on the absence of a diagnosis on separation. The Board further finds that this opinion inadequate to decide this case because it is not a thorough and well-reasoned analysis of the Veteran’s disability. Specifically, the Board notes that the examiner did not consider the Veteran’s lay statements that these disorders began on active duty and has gotten progressively worse over the years. Moreover, the examiner did not properly address as to how the Veteran’s in-service injuries and his duties as a utilities system specialist did not cause the Veteran to develop these disabilities. Thus, for the above stated reasons, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s disabilities. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). 3. Entitlement to service connection for a right knee disability is remanded. In November 2019, an addendum opinion was requested in order to address a finding that the Veteran’s knee exhibited crepitus while on active duty. Following a review of the record, the examiner found that the Veteran’s current knee disorder was not related to his military service. The Board finds this opinion to be inadequate to decide this case. The Board has reached this conclusion because the examiner’s opinion was conclusory in nature and it was not a thorough and well-reasoned opinion as to why the Veteran’s in-service diagnosis of crepitus was not related to the crepitus that was exhibited on his 2019 VA examination. Thus, the Board finds that a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s disability. 4. Entitlement to service connection for sleep apnea In March 2010, the Veteran attended a VA examination for this issue. Following the examination, the examiner simply opined that the Veteran’s sleep apnea did not have its onset in service. The Board finds this opinion is inadequate to decide this case because it is not a thorough and well-reasoned opinion that addressed the nature and etiology of the Veteran’s disability. Thus, the Board finds that a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his low back disability, neck disability, right knee disability, and sleep apnea. After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions: (A). Is it at least as likely as not that (50 percent or greater probability) that the low back disability manifested in or is otherwise related to the Veteran’s military service? (B). Is it at least as likely as not that (50 percent or greater probability) that the neck disability manifested in or is otherwise related to the Veteran’s military service? (C). Is it at least as likely as not that (50 percent or greater probability) that the right knee disability manifested in or is otherwise related to the Veteran’s military service? The examiner’s opinion should include a discussion regarding the Veteran’s September 1990 Service treatment record that shows low back and right knee pain for three months. The examiner should address the Veteran’s testimony that he began experiencing “whiplash symptoms” around the time he was jackhammering in September 1990, and that the neck pain had persisted since that time. The examiner’s opinion should address the in-service finding of right knee crepitus. The examiner’s opinion should consider the Veteran’s duties as a Utilities Systems Specialist. (C). Is it at least as likely as not that (50 percent or greater probability) that the Veteran’s sleep apnea manifested in or is otherwise related to the Veteran’s military service? (D). Is it as least as likely as not (50 percent or greater probability) that his sleep apnea is caused or aggravated by any of his service-connected disabilities? The examiner’s opinion should include a discussion regarding the Veteran’s contention that he experienced sleep issues following his service in the Persian Gulf War. The examiner’s opinion should include a discussion regarding the Veteran seeking treatment for sleep issues in 1996. In providing the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.