Citation Nr: 21063306 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-20 167 DATE: October 13, 2021 ORDER Service connection for a right ankle disability is granted. Service connection for an acquired psychiatric disorder is granted. Service connection for respiratory problems, to include as due to an undiagnosed illness, is denied. Service connection for gastrointestinal problems, to include as due to an undiagnosed illness, is denied. Service connection for headaches, to include as due to an undiagnosed illness, is denied. Service connection for muscle pain, to include as due to an undiagnosed illness, is denied. Service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. Service connection for other cardiovascular symptoms, to include as due to an undiagnosed illness, is denied. Service connection for joint pain, to include as due to an undiagnosed illness, is denied. REMAND Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for neuropathy of the left lower extremity is remanded. Entitlement to service connection for neuropathy of the right lower extremity is remanded. Entitlement to service connection for neuropathy of the left upper extremity is remanded. Entitlement to service connection for neuropathy of the right upper extremity is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for coronary artery disease is remanded. FINDINGS OF FACT 1. It is just as likely as not the Veteran had a right ankle disability and an acquired psychiatric disorder because of his military service. 2. However, the preponderance of the evidence is against finding that his additionally claimed respiratory problems, gastrointestinal problems, headaches, muscle pain, chronic fatigue, other cardiovascular symptoms, and joint pain began during his service or were otherwise related or attributable to his service, including to his service in the Persian Gulf region. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria are met for entitlement to service connection for a right ankle disability and an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. But the criteria conversely are not met for entitlement to service connection for respiratory problems, gastrointestinal problems, headaches, muscle pain, chronic fatigue, other cardiovascular symptoms, and joint pain. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1998 to February 2001 and from October 2005 to December 2006. He died in January 2014. His surviving spouse, so widow, since has been substituted as the appellant to process these claims to completion. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). At the outset, the Board acknowledges that the service treatment records (STRs) from the Veteran's second period of active military service are unavailable. He was duly notified of this in July 2013. In this circumstance the Board has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See, e.g., Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare, 1 Vet. App. at 367). The Board would remiss if it did not also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran or other claimant to still have competent and credible evidence supporting the claim for service connection by suggesting a correlation between the claimed condition and the Veteran's military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). 1. Service connection for a right ankle disability is granted. The Board finds that service connection for a right ankle/lower leg disability is warranted. The STRs from the Veteran's first period of active service document his report of shin pain. In November 1998, he reported pain in his lower legs and was assessed with possible shin splints. In June 1999, he reported a feeling of knotting and tightness in his shins after running. Range of motion of his right ankle was normal, but there was pain when stretching. The assessment was bilateral compartment syndrome. A January 2003 pre-deployment assessment showed ongoing reports of joint pain, including referable to his right ankle. Post-service treatment records reflect a continuous symptom of right ankle pain, as referenced in January 2010. A June 2013 VA treatment record mentions his report that he had had right leg pain since the 1990s while in service due to running and standing for long periods of time. The Board finds that the Veteran's statements and recollections of right ankle pain throughout the appeal period are consistent with his STRs documenting right ankle or right lower leg pain diagnosed at the time as compartmental syndrome and/or shin splints. Given this factual consistency, as well as the evidence of continuous symptoms in service and since service up to his unfortunate death, the Board finds that the benefit of the doubt weighs in his appellant-widow's favor such that service connection for a right lower leg/ankle disability is granted. 2. Service connection for an acquired psychiatric disorder is granted. In pleadings prior to his death, the Veteran contended that he suffered from psychiatric symptoms owing to his service in Iraq. His post-service treatment records document these symptoms. In February 2012, he reported during a mental status examination that he was suffering from what he believed were symptoms of posttraumatic stress disorder (PTSD) because of his service in Iraq, including nightmares and flashbacks that were worse during the six months following his return from his deployment. VA treatment records reflect reports of depression and anxiety that were ongoing in June 2013, so relatively shortly before his death in January 2014. The Veteran provided a credible account of suffering from psychiatric-related symptoms since his service in Iraq and because of that experience. His statements are consistent with the circumstances, conditions, and hardships of his service, including especially while there. 38 C.F.R. § 1154(a). There is no probative evidence of record contrarily tending to refute finding that his psychiatric symptoms were at least, in part, related to his second period of active service. Accordingly, as there is evidence of disability during the appeal period, an in-service event as a suggested cause or source of the disability, as well as credible evidence linking the post-service symptoms to service, including to experience alleged, this claim for service connection for an acquired psychiatric disorder is granted. 3. Service connection for respiratory problems, to include as due to an undiagnosed illness, is denied. 4. Service connection for gastrointestinal problems, to include as due to an undiagnosed illness, is denied. 5. Service connection for joint pain, to include as due to an undiagnosed illness, is denied. 6. Service connection for headaches, to include as due to an undiagnosed illness, is denied. 7. Service connection for muscle pain, to include as due to an undiagnosed illness, is denied. 8. Service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. 9. Service connection for other cardiovascular symptoms, to include as due to an undiagnosed illness, is denied. In his pleadings, the Veteran contended that he additionally suffered from respiratory problems, gastrointestinal problems, joint pain, headaches, muscle pain, chronic fatigue, and other cardiovascular symptoms (other than the separately claimed coronary artery disease) owing to undiagnosed illness from his service in the Persian Gulf region. Service connection may be granted on a presumptive basis for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that manifested during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War to a degree of 10 percent or more or within a prescribed time after service. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); 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. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A 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). Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or a 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) neurologic 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). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be 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). Inasmuch as the Veteran's service records show that he served in Southwest Asia from December 2005 to November 2006, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. The question remains, however, as to whether the record also supports a finding that his claimed disabilities are manifestations of an undiagnosed illness or other qualifying chronic disability associated with his Persian Gulf War service or are otherwise related to his service. But, when reviewing the totality of the record, the Board finds that the weight of the evidence is heavily against these claims for service connection for respiratory problems, gastrointestinal problems, joint pain, headaches, muscle pain, chronic fatigue, and other cardiovascular symptoms. In April 2020 and in December 2020, a VA examiner reviewed the record and determined that the claimed symptoms were likely related to the Veteran's underlying illnesses specifically to include his uncontrolled diabetes mellitus and heart disease. In both opinions, the examiner noted that the Veteran was morbidly obese and that his obesity and severe medical conditions were likely, within a 50 percent probability or greater, to have caused his symptoms of fatigue, joint pain, headaches, muscle pain, respiratory problems, and gastrointestinal problems. The examiner found no indication in the records that the Veteran's fatigue met the criteria to be diagnosed as chronic fatigue syndrome (CFS). In March 2021, another VA opinion was obtained that is consistent with the two opinions previously obtained. This examiner explained that the Veteran's morbid obesity, coronary artery disease and psychiatric symptoms likely contributed to his symptoms, to include his feelings of fatigue, and that the evidence was not supportive of a diagnosis of CFS. All three examiners concluded there was not enough clinical evidence to support a finding of an undiagnosed illness or MUCMI. Rather, the Veteran's symptoms were attributed to clinical diagnoses that were not, in turn, related to his service. The Board finds that the three VA opinions weigh heavily against the claims. These opinions are probative because they are based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the opinions are consistent with the other evidence of record. The post-service treatment records confirm the Veteran suffered from uncontrolled diabetes mellitus, hypertension, and heart disease with related neurological impairment in his extremities. These records also show he suffered from diagnosed joint disabilities, including bilateral rotator cuff tears, nerve impingement due to a cervical spine disability, and arthritis of multiple joints. The records do not reflect symptoms unattributable to a diagnosis, nor do they reflect the diagnosis of a specific MUCMI. In that regard, and significantly, a 2003 pre-deployment STR shows the Veteran already suffered from joint pain prior to his service in the Persian Gulf region, which only further tends to support ultimately finding that his joint pain was not due to undiagnosed illness. Finally, although the STRs from the Veteran's second period of service are not available, the available records do not tend to suggest that the claimed disabilities are etiologically related to his service on a direct basis. He did not provide any contentions relating these disabilities to his service, and the medical evidence does not tend to support such a relationship or correlation. This includes as to whether his pre-existing joint pain was aggravated by his second period of active service, as he did not provide any specific contentions as to this theory of entitlement and the evidence does not otherwise tend to demonstrate such. Although the Veteran no doubt sincerely believed that his disabilities were related to his service, he was not competent to provide a probative opinion regarding this determinative issue. This issue is medically complex, not instead merely simple, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran because the record does not show that he had the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The same is true for his surviving spouse. Consequently, the Board gives more probative weight to the three VA examiners' opinions obtained in 2020 and 2021. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Therefore, as the preponderance of the evidence is against these claims for service connection for respiratory problems, gastrointestinal problems, joint pain, headaches, muscle pain, chronic fatigue, and other cardiovascular symptoms, these claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. 2. Entitlement to service connection for neuropathy of the left lower extremity is remanded. 3. Entitlement to service connection for neuropathy of the right lower extremity is remanded. 4. Entitlement to service connection for neuropathy of the left upper extremity is remanded. 5. Entitlement to service connection for neuropathy of the right upper extremity is remanded. 6. Entitlement to service connection for erectile dysfunction is remanded. 7. Entitlement to service connection for hypertension is remanded. 8. Entitlement to service connection for coronary artery disease is remanded. As already conceded, the STRs concerning the Veteran's second period of active service, from October 2005 to December 2006, unfortunately are unavailable. After reviewing the records that conversely are available, it remains unclear as to the date of diagnosis of diabetes mellitus, hypertension, and related complications. The VA treatment records show his report of receiving a diagnosis of diabetes mellitus in 2003 following a stroke, but then shortly thereafter state that he was diagnosed with diabetes mellitus in May 2006. Private treatment records on the other hand reference a history of diabetes by 2008, yet also state in 2007 that he did not have a history of diabetes. Because it is unclear whether he was diagnosed with diabetes mellitus in between his periods of active service, during his active service, within one year following his separation from service, or later on, there first should be an attempt to obtain all outstanding treatment records dated from 2003 to 2008. Accordingly, these remaining claims are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for all physicians/facilities that treated the Veteran from 2003 to 2008 concerning the remaining disabilities at issue. Make two requests for the authorized records. unless it is clear after the first request that a second request would be futile. Also appropriately notify her if unable to obtain records that she identifies with the required amount of information. 2. If additional treatment or other records relevant to these remaining claims are received, also complete any other required development, such as obtaining additional VA medical opinions. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.