Citation Nr: 21064613 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 08-13 130 DATE: October 21, 2021 ORDER Service connection for an acquired psychiatric disorder other than schizoaffective disorder, generalized anxiety disorder (GAD), or alcohol use disorder, to include posttraumatic stress disorder (PTSD) is denied. Service connection for chronic fatigue syndrome (CFS) is denied. Service connection for a headache disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1986 to July 1989, and from January to June 2003. He did not have service in the Southwest Asia Theater of Operations. 2. An acquired psychiatric disorder, to include PTSD, has not been shown. 3. A diagnosis for CFS has not been shown. 4. The Veteran reported headaches in service; however, symptoms were not shown to be chronic; a current diagnosis of headaches is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 2. CFS was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 3. Headaches were not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was remanded by the Board in June 2012, June 2018, and most recently in January 2021. There has been substantial compliance with the remand directives and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Importantly, the January 2021 Board decision determined that the Veteran did not have service in the Southwest Asia Theater of Operations. In this regard, the Board notes that prior Board remands have ordered development with respect to the Veteran's claimed service in the Southwest Asia theater of operations during the Persian Gulf War for purposes of entitlement to service connection on a presumptive basis for certain disabilities under 38 C.F.R. § 3.317. While the record confirms active service in Jordan, that country is not considered part of the Southwest Asia theater of operations. Pursuant to the most recent Board decision, the RO confirmed that the record does not reflect active duty service in Southwest Asia for purposes of 38 C.F.R. § 3.317(e)(2). Accordingly, as the Veteran does not meet the definitions of qualifying service under 38 C.F.R. § 3.317, the Board cannot further contemplate any provisions of service connection under this section, as the provisions of this section are not applicable. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Acquired Psychiatric Disorder to include PTSD As a preliminary matter, the Veteran is already in receipt of service-connected benefits for schizoaffective disorder, GAD and alcohol use disorder and rated at 70 percent disabled. The record does not show that he has any other psychiatric disorder. However, as the initial claim was one for PTSD, the Board has limited its consideration accordingly. In addition to the regulations outlined above, service connection for PTSD requires medical evidence of a current diagnosis, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As to the claim for PTSD, the record does not show that the Veteran has a confirmed diagnosis of PTSD. Specifically, he has undergone several VA psychiatric examinations during the pendency of the appeal. An April 2016 VA examiner, with an April 2018 addendum opinion, noted that he had schizoaffective disorder, but did not meet the DSM-V criteria for a PTSD diagnosis. A February 2019 VA examiner later confirmed the diagnosis of schizoaffective disorder and added a diagnosis for alcohol use disorder which he opined was a progression of the schizoaffective disorder. This finding was confirmed by a February 2020 VA examiner who also opined that the Veteran did not meet the criteria for a DSM-V diagnosis of PTSD. Instead, the examiner modified the Veteran's diagnoses to reflect schizoaffective disorder, bipolar type, unspecified, and moderate alcohol use disorder. In so finding, the February 2020 VA examiner discussed the numerous notations to PTSD in the record but found that the Veteran's stressors and symptoms were not sufficient for a diagnosis. The examiner expanded by noting that historical records have never confirmed a PTSD diagnosis, but only Rule Out diagnoses for PTSD as indicated in the files. Specifically, the examiner noted that the Veteran reported a stressor which would not be expected to cause PTSD and did not endorse sufficient criteria for negative alterations in cognition and mood. At a May 2021 VA examination, the examiner once again found no diagnosis of PTSD. Instead, a progression of the Veteran's service-connected schizoaffective disorder was found, with symptoms of anxiety noted to be GAD, and alcohol use disorder which was a result of his attempt to manage symptoms. The examiner clarified that while a progression of symptoms resulting in GAD had been found, there were no additional diagnoses such as PTSD rendered. These findings were confirmed once more by a July 2021 VA examiner. After considering the totality of the record, no diagnosis of PTSD, or any other psychiatric disorder has been shown. Specifically, multiple VA examiners have found that the Veteran did not meet the criteria for a DSM-V diagnosis of PTSD as is required for service connection. Additionally, the VA examiners have provided an explanation for the notations of PTSD in the Veteran's record, noting that those were Rule Out diagnoses and not ones assessed against the DSM-V criteria. In this regard, the only diagnoses rendered were ones for schizoaffective disorder, GAD and alcohol use disorder, for which the Veteran is already in receipt of service-connected benefits. As noted above, service connection may only be granted for a current disability. As there is no confirmed current diagnosis for PTSD or any other non-service connected psychiatric disorder, the medical evidence does not support the claim and it is denied. Chronic Fatigue Syndrome The Veteran seeks entitlement to service connection for chronic fatigue syndrome, or a disability manifested by fatigue, to include as presumptively due to Gulf War service. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War. The Southwest Asia Theater of Operations include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the air space above these locations. 38 C.F.R. § 3.317 (d)(1)(2). Here, one of the Veteran's theories of entitlement is that service connection should be granted for a disability manifested by fatigue, claimed as CFS on a presumptive basis as related to his Gulf War service. As discussed above, the Southwest Asia theater of operations is defined specifically to include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. While service in these places is sufficient for receipt of a Southwest Asia Service Medal, individuals with active service between January 17, 1991 and November 30, 1995, in Israel, Egypt, Turkey, Syria, and Jordan (including their air space and territorial waters) are also eligible for this award, assuming they directly supported combat operations. Thus, as mentioned, the Veteran cannot be considered for service connection under the provisions of 38 C.F.R. § 3.317. Notwithstanding the foregoing presumption provisions, the law provides that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumptive service connection on is not the sole method for showing causation. However, even under a theory of direct causation, service connection is not warranted for CFS and/or a disability manifested by fatigue. Specifically, while the Veteran has occasionally complained of fatigue, it has been related to his service-connected psychiatric disability several times and he has not received a diagnosis for CFS. An April 2016 VA examination and opinion noted that the Veteran's service treatment records (STRs) were silent for any evaluation, diagnosis, or treatment for CFS. The examiner also noted that there was never a diagnosis for C FS in the post-service treatment records, and they were also silent for any treatment of such. Finally, the examiner noted that upon evaluation at the examination, the Veteran did not fit the criteria for CFS. A June 2021 VA addendum opinion was obtained to clarify whether the Veteran had a diagnosis for CFS. In this regard, the examiner opined that the Veteran did not meet the criteria for CFS. Instead, he exhibited only a few of the symptoms related to CFS, to include sleep disturbance, knee pain, headaches, and fatigue, all of which, the examiner noted, were explained by other factors. Additionally, the examiner stated that the Veteran did not have an acute or new onset which was usually characteristic of the development of CFS. Specifically, his symptoms were not abrupt, some symptoms had been treated and some symptoms had changed. Instead, the examiner opined that many of the symptoms were related to the diagnosis and treatment for a psychiatric illness which contributed to many of the symptoms. This evidence weighs against the appeal. While the Veteran occasionally complained of exhaustion and fatigue in VA treatment records, those symptoms have been repeatedly attributed to the psychiatric disability. Importantly, even in the notations for those complaints, no diagnosis of a chronic disorder was ever rendered. As such, the medical evidence does not support the first element of service connection as a current diagnosis has not been established. As such, in the absence of a diagnosis for VA purposes, the claim cannot be granted. Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Accordingly, as CFS is not shown, the appeal is denied. Headaches Initially, the Veteran has complained of headaches as noted in the VA treatment records. Additionally, a June 2021 VA examiner diagnosed a tension headache disorder. As such, a current diagnosis is shown, and the first element of service connection is met. Next, the STRs reveal that the Veteran complained of a headache in 1986; however, at the April 1989 separation examination, April 1991 annual examination, May 2003, July 2003 and June 2004 entrance and separation examinations, he consistently denied frequent headaches. Additionally, the record does not show any other treatment for headaches in service. Nonetheless, as there is a single documented complaint of headaches, the second element of service connection is met. As to a medical nexus between the current tension headaches and active duty service, an April 2016 VA examiner opined that it was less likely than not that the Veteran's headaches were related to service. The examiner reasoned that the Veteran sought treatment for headaches one time in 1986 which had resolved by the time he was seen in the emergency room. At that time, the diagnosis was headache by history. The examiner noted that there were no further evaluations, diagnoses, or treatments of headache conditions in service. The examiner also stated that the remainder of the Veteran's medical records were likewise silent for diagnosis, evaluation or treatment for a chronic headache condition, and none was observed on evaluation that day. A June 2021 VA examiner similarly opined it was less likely than not that the Veteran's headache disorder was related to service. The examiner reasoned that while the documentation was found of a headache in 1986, there were no findings in a review of the STRs of an official diagnosis and treatment for a headache disorder. The examiner opined that although the Veteran now exhibited a headache disorder for which he took over the counter medications, this was based on a subjective report. The examiner stated that as a result of this non-official diagnosis, which was not supported by the medical evidence, no current link could be given to service as per history. A reasonable reading of the medical opinion is that the single notation of a headache in service was different than the current headaches and they were not related. Therefore, the medical evidence does not support the claim of service connection as the third element, a medical nexus, is not met. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or any relevant fact was misstated. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. With regard to all appeals, the Board has also considered the Veteran's lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.