Citation Nr: 21063942 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-26 685 DATE: October 18, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. Service connection for bilateral shoulder disability is granted. Service connection for left wrist disability is granted. Service connection for erectile dysfunction is denied. REMANDED Service connection for chronic fatigue syndrome (CFS) is remanded. A compensable rating for cervical spine disability is remanded. A compensable rating for lumbar spine disability is remanded. A rating in excess of 20 percent for gout is remanded. FINDINGS OF FACT 1. The preponderance of the evidence supports finding the Veteran's OSA manifested during service. 2. Resolving reasonable doubt in favor of the Veteran, his bilateral shoulder arthritis manifested during service with continuity of symptomatology since service. 3. The preponderance of the evidence supports finding chronic left wrist DJD during service with continuity of symptomatology since service. 4. The preponderance of the evidence is against finding erectile dysfunction manifested during service, is related to service, or is secondary to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for left wrist disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from February 1986 to April 1998 and November 2001 to July 2010. The Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. The hearing transcript is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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 injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, to include arthritis, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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 C.F.R. § § 3.317(a)(1). There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d). 1. Service connection for OSA is granted. The Veteran contends his OSA manifested during service and is related to service. Service treatment records (STR) show May 2007 visits reported fatigue due to difficulty sleeping. August 2009 visits reported insomnia and difficulty sleeping. An April 2010 Pre-Discharge Compensation Claim form reported OSA. The Veteran separated from service on July 31, 2010. A December 2010 VA examination reported sleepiness during the day. The examiner did not find sufficient evidence to diagnosis OSA. A January 2011 VA treatment visit reported difficulty staying asleep, snoring, gasping and choking for air, halted breathing while sleeping, and daytime sleepiness. The Veteran was diagnosed with primary snoring. A February 2011 statement reported his partner tells him he stops breathing during sleep and snores. July 2011 and October 2011 sleep studies indicated mild OSA. A March 2017 private treatment opinion found the Veteran's OSA was more likely than not caused or related to service. The doctor stated OSA was suspected in 2010 and confirmed in 2011. The clinician noted numerous STR complaints of being tired, weak, low energy, and fatigue. See March 2017 disability benefits questionnaire (DBQ). The Board finds the preponderance of the evidence supports finding the Veteran's OSA manifested during service. The Board gives probative weight to the Veteran's lay statements during service and immediately after service describing symptoms of daytime sleepiness, fatigue, difficulty staying asleep, snoring, gasping and choking for air, and halted breathing while sleeping. The Board gives probative weight to March 2017 DBQ opinion finding the Veteran's OSA was more likely than not caused or related to service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time support a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's reported symptoms during service and immediately after service were consistent with the symptoms that were later diagnosed as OSA. Accordingly, service connection for OSA is granted. 2. Service connection for bilateral shoulder disability is granted. The Veteran contends shoulder disability manifested during service and continued since service. Resolving reasonable doubt in favor of the Veteran, his bilateral shoulder arthritis manifested during service with continuity of symptomatology since service. STR show a May 2009 visit reported occasional numbness when shoulder is abducted, extended, and rotated. A March 2010 Report of Medical History reported painful shoulders. An April 2010 Pre-Discharge Compensation Claim form reported bilateral shoulder disability. The Veteran separated from service on July 31, 2010. A December 2010 VA examination reported the onset of shoulder pain in 2006. He reported pain with motion and aggravation with reaching. The examiner found no pathology to find a shoulder diagnosis. A July 2011 private orthopedic treatment visit reported bilateral shoulder pain with elevating arms, reaching, lifting, and sleeping. Physical examination observed tenderness over the AC joint with positive impingement signs bilaterally. The clinician assessed shoulder impingement and shoulder osteoarthritis. A February 2014 shoulder x-ray showed cuff tendinosis and AC joint degenerative change. At a July 2021 Board hearing, the Veteran reported shoulder pain since service. He reported receiving treatment for his shoulder pain within a year of separation from service, which showed reduced range of motion and was prescribed medication and injections. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral shoulder disability are met. Certain chronic diseases will be presumed related to service, to include arthritis, if noted in service or within a year of separation from service with continuity of symptomatology since service. Here, the evidence shows a diagnosis of shoulder arthritis, with shoulder pain noted in service and within a year of separation from service, and continuity of symptomatology since service. Accordingly, service connection for bilateral shoulder disability is granted. 3. Service connection for left wrist disability is granted. The Veteran contends left wrist disability manifested during service and continued since service. The preponderance of the evidence shows chronic left wrist DJD during service with continuity of symptomatology since service. STR show a February 2004 visit for left wrist pain. He reported wrist pain since being activated and having to perform pushups. A bone scan noted mild degenerative changes. An April 2004 visit reported left wrist pain and assessed chronic left wrist pain secondary to DJD. Physical Profiles were issued in April 2004 and November 2009 instructing no push-ups due to chronic left wrist pain secondary to arthritic changes in the wrist. A March 2010 separation examination noted chronic wrist pain with a diagnosis of DJD of wrist. The Veteran separated from service on July 31, 2010. A December 2010 VA examination reported left wrist pain since 2003. He reported pain with motion, weakness, and fatigability. The examiner found no pathology to find left wrist diagnosis. An August 2011 private orthopedic treatment reported left wrist pain. The clinician prescribed an injection and wrist splint. An October 2011 private orthopedic treatment reported left wrist pain on and off since 2004. At a July 2021 Board hearing, the Veteran reported no problems with his left wrist prior to service, chronic visits for his left wrist during service, and a physical profile for no pushups. He reported currently using a wrist brace and pain with putting weight on his wrist and lifting. Certain chronic diseases will be presumed related to service, to include arthritis, if shown as chronic in service. Here, the preponderance of the evidence shows chronic left wrist pain due to DJD during service with continuity of symptomatology since service. Accordingly, service connection for left wrist disability is granted. 4. Service connection for erectile dysfunction is denied. The Veteran contends entitlement to service connection for erectile dysfunction. The preponderance of the evidence is against finding erectile dysfunction manifested during service, is related to service, or is secondary to his service-connected disabilities. STR show no evidence of treatment, complaint, or diagnosis of erectile dysfunction during service. This Veteran has not contended erectile dysfunction manifested during service. The Veteran pointed to his diagnosis and being prescribed medication for erectile dysfunction within a year of separation from service. See March 2012 NOD statement. However, as erectile dysfunction is not a chronic disease under 38 C.F.R. § 3.309(a), the presumptive provisions do not apply. The provisions of law regarding Persian Gulf War veterans are inapplicable because erectile dysfunction is a known clinical disease and not an undiagnosed illness or manifestation of a medically unexplained chronic multisymptom illness. Erectile dysfunction is not included on the list of presumptive illnesses under 38 U.S.C. § 1117(d). Service connection for erectile dysfunction may still be granted on a direct basis; however, the preponderance of the evidence is against finding a medical nexus between erectile dysfunction and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d). The Veteran contended his erectile dysfunction may be related to medications used to treat his service-connected disabilities. See July 2021 hearing testimony. The Board does not find sufficient indication his erectile dysfunction may be secondary to a service-connected disability to trigger the duty to provide a medical opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (something more than a veteran's conclusory, generalized statement is needed to trigger VA's duty to assist by providing a medical nexus examination). Accordingly, service connection for erectile dysfunction is denied. REASONS FOR REMAND 1. Service connection for CFS The Veteran contends fatigue syndrome that began during service or is related to service, to include as related to service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran points to STR showing visits for fatigue, tiredness, low grade fevers, headaches, joint pains, and sleep disturbances. The Veteran points to a July 2011 sleep study recommendation and March 2017 DBQ doubting the Veteran's OSA entirely explains his degree of sleepiness. See March 2012 NOD statement and July 2021 hearing testimony. The Board requests an examination and opinion to clarify the nature and etiology of the Veteran's claimed fatigue disability. 2. A compensable rating for cervical spine disability 3. A compensable rating for lumbar spine disability 4. A rating in excess of 20 percent for gout At the July 2021 Board hearing, the Veteran indicated the above service-connected disabilities worsened in severity since he was last examined by VA in December 2010. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities. The matters are REMANDED for the following action: 1. Obtain the VA treatment records from September 2016 to the present. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed fatigue disability. The clinician is asked to provide responses to the following: A) By history, physical examination, or laboratory testing, can the Veteran's claimed fatigue disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. B) If the Veteran's claimed fatigue disability cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. C) If the Veteran's claimed fatigue disability can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. D) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (50 percent or greater probability) the diagnosed condition was incurred in or is otherwise related to active service? The clinician should consider STR showing visits for fatigue, tiredness, low grade fevers, headaches, joint pains, and sleep disturbances, as well as the July 2011 sleep study recommendation and March 2017 DBQ doubting the Veteran's OSA entirely explains his degree of sleepiness. See March 2012 NOD statement and July 2021 hearing testimony. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected (a.) cervical spine disability, (b.) lumbar spine disability, and (c.) gout. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.