Citation Nr: 21064672 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-16 937 DATE: October 21, 2021 ORDER Entitlement to service connection of an undiagnosed illness or medically unexplained chronic multisymptom illness, claimed as Gulf War Syndrome, is denied. Entitlement to service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection of an acquired psychiatric disability, claimed as depression, is denied. Entitlement to service connection of an acquired psychiatric disability, claimed as anxiety, is denied. Entitlement to service connection of insomnia disorder is denied. Entitlement to service connection of chronic fatigue syndrome is denied. Entitlement to service connection of a cognitive/memory disorder is denied. Entitlement to service connection of bilateral hearing loss is denied. REMANDED Entitlement to service connection of arthritis, claimed as joint pain, and diagnosed as bilateral chondromalacia of the patellae, cervical strain, and multilevel degenerative disc disease of the cervical spine, is remanded. Entitlement to service connection of a tension headache disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 2. The Veteran does not have a present diagnosis of PTSD. 3. The Veteran's unspecified depressive disorder and unspecified insomnia disorder with symptoms of fatigue, anxiety a cognitive/memory issues, are less likely than not related to any incident of active service, to include the 1988 fire aboard USS CONSTELLATION. 4. The Veteran does not have an independent diagnosis of anxiety, cognitive/memory disability, or chronic fatigue syndrome; his symptoms of anxiety, memory loss and chronic fatigue are features of his diagnosed depressive and insomnia disorders. 5. The Veteran does not have bilateral hearing loss within the regulatory definition of hearing loss for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), claimed as "Gulf War Syndrome," are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The criteria for service connection for depressive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for an acquired psychiatric disorder manifested by anxiety are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for insomnia disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria for service connection for a memory/cognitive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for service connection of bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal previously came before the Board in April 2021, at which time the Board granted service connection of tinnitus, and remanded the remaining issues on appeal for further development. The Board notes that the Veteran submitted a supplemental claim covering the disorders on appeal in July 2021. However, the Board does not conclude that his is a valid opt-in to the Appeals Modernization Program. Notably, he did not state in the supplemental claim that this was his desire. Moreover, there is no prejudice to the Veteran in continuing the claim under the legacy regulations. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis and hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether or not a disability is considered chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any appeal. Compensation may be paid to a Persian Gulf war veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or a combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § § 3.317 (a). 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 multisymptom illness (MUCMI) (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; 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. Id. 1. Entitlement to service connection of a disability claimed as Gulf War Syndrome The Veteran seeks service connection of an undiagnosed or medically unexplained chronic multisymptom illness (MUCMI) which he has claimed as "Gulf War Syndrome" The Board finds that the claim should be denied. Initially, the Board notes that VA has conceded service in the Southwest Asia theatre of operations during an applicable time period. Therefore, the question becomes whether the Veteran has either an undiagnosed illness or a MUCMI. For the reasons addressed herein, the Board finds that he does not. The Veteran was afforded a general Gulf War examination in February 2017, along with various other examinations to include nerve, joint, headache, and fatigue examinations. Following a complete review of the evidence of record, as well as a physical examination of the Veteran, the examiner concluded that the Veteran does not have an undiagnosed illness or MUCMI. Specifically, the examiner stated that the Veteran's disability pattern is related to diseases with clear and specific etiology and diagnoses. Specifically, the Veteran's symptoms are related to bilateral chondromalacia of the patellae, cervical strain, multilevel degenerative disc disease of the cervical spine, and tension headaches. With regard to the Veteran's claimed chronic fatigue syndrome, the Veteran's symptoms were found to be related to his diagnosed depression as well as insomnia, and not a separate diagnosable disability or a feature of an undiagnosed disability; his anxiety and cognitive/memory issues were also attributed to his depression and insomnia, as features of those disabilities, and not separate disabilities on their own or features of an undiagnosed illness. The examiner concluded that the disability pattern or diagnosed diseases were less likely than not related to a specific exposure event experienced by the Veteran in Southwest Asia. The Board finds this opinion to be persuasive in this matter so far as it rules out an undiagnosed illness or medically unexplained chronic multisymptom illness other than restless leg syndrome (it is noted that a contemporary peripheral nerve examination found restless leg syndrome to be a medically unexplained illness of partially known etiology, and that disability has been granted service connection). It was given following a physical examination of the Veteran, which found actual diagnosed pathologies to account for the Veteran's various claimed and reported symptoms. The examiner who provided the opinion is a staff physician with sufficient medical experience and expertise to make such a diagnostic conclusion. The Board has reviewed private treatment evidence submitted by the Veteran since the Board's most recent remand in this matter. That evidence primarily addressed psychiatric treatment, and did not generally address any physical issues beyond ruling out sleep apnea as a diagnosis. As such, those records do not provide adequate evidence to contradict the conclusion of the 2017 VA examiner which attributed his claimed conditions to known diagnoses. The Board does acknowledge the Veteran's firm belief that he suffers from a disability of unknown origin. While the Veteran is competent to report observable symptomatology, as a lay person, he is not competent to provide a medical diagnosis (or in this case, a non-diagnosis) to account for his complex symptoms. Layno v. Brown, 6 Vet. App. 465, 471 (1994); Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Likewise, he is not competent to provide an etiological conclusion regarding the cause of his various claimed symptoms, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of his various symptoms in service. See id. In sum, the Board concludes that the Veteran does not suffer from either an undiagnosed illness or a MUCMI, and therefore the claim for an undefined "Gulf War Illness" must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board will address each disability as diagnosed individually, below. 2. Entitlement to service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD) 3. Entitlement to service connection of an acquired psychiatric disability, claimed as depression 4. Entitlement to service connection of an acquired psychiatric disability, claimed as anxiety 5. Entitlement to service connection of a sleep behavior disorder 6. Entitlement to service connection of chronic fatigue syndrome 7. Entitlement to service connection of a cognitive/memory disorder The Veteran seeks service connection of an acquired psychiatric disability, which he has variously claimed as PTSD, depression and anxiety. The Board finds that the claims should be denied. As an initial matter, the Board does not find that the Veteran has a present diagnosis of PTSD. Unlike other psychiatric disabilities, PTSD has specific diagnostic requirements for a grant of service connection. In order to establish entitlement to service connection for PTSD, the Veteran must show: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (referencing the standards of the DSM-5); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). For his part, the Veteran asserts he has PTSD following an incident aboard USS CONSTELLATION in 1988, when a fire broke out and he participated in the process of extinguishing that fire over the course of 24 hours. This is a confirmed incident which took place aboard USS CONSTELLATION, and VA has conceded that it occurred. The Veteran was afforded a VA examination in September 2016, in connection with his initial claim. The examiner concluded that the Veteran did not have a diagnosis of PTSD under the DSM-5 criteria, but that he did have other psychiatric diagnoses. That examination found the only applicable symptom to be sleep impairment due to nightmares, but no other relevant criteria for a diagnosis of PTSD. In February 2017, a new examination was conducted, with similar conclusions regarding the Veteran's claimed conditions, specifically that he did not meet the diagnostic criteria for PTSD, but that he did have a separate psychiatric diagnosis, specifically unspecified depressive disorder and unspecified insomnia disorder. The examiner acknowledged the fire incident onboard USS CONSTELLATION. At that time, the Veteran reported that he was required to help fight the fire along with everyone on board the vessel, but that he did not see any flames. He denied fearing for his life, but he understood that someone could die in such a situation. He noted that although some people were injured, everyone survived. The examiner concluded that, although this incident did occur, it did not meet the stressor criterion A for a diagnosis of PTSD, namely that it was not adequate to support such a diagnosis. It did not relate to any fear of hostile military or terroristic activity, and did not relate to a personal assault. The examiner also found that there was no presence of intrusive symptoms, no persistent avoidance of stimuli associated with the event, no negative alterations in cognition and mood associated with the event, and no marked alterations in arousal and reactivity associated with the event. In sum, PTSD could not be diagnosed based on the event as reported. The Board finds this opinion to be generally persuasive. It was given by a psychiatric specialist in contemplation of the complete medical history and a physical/psychiatric examination. It is based on the Veteran's own reports of his stressor, as personally described and confirmed by VA. However, the examiner concluded that the diagnostic criteria for PTSD were not met in this situation. It does not rule out other possible diagnoses, in fact, confirms them, but does rule out PTSD as a possible diagnosis in this matter. The Board does acknowledge psychiatric treatment records from Kaiser Permanente, received following the Board's most recent remand. Those records generally attribute the Veteran's psychiatric condition to other diagnoses such as adjustment disorder, depression, anxiety, and attention deficit hyperactivity disorder (ADHD). The Board acknowledges a notation of "chronic PTSD" in March 2020, but finds this of limited probative value. Specifically, that diagnosis is noted following a telephone encounter in which the Veteran reported speaking with people who were trapped down below during his stressor incident, but did not actually report being in any physical danger during the incident. He also reported not meeting the criteria for PTSD after a VA evaluation. The examiner, despite listing the diagnosis, stated that the level of service provided was management, and not an actual evaluation. As such, the Board concludes that this diagnosis is not based upon a comprehensive psychiatric evaluation, but rather by history as reported by the Veteran, and does not prove a diagnosis of PTSD for purposes of granting service connection. Based on the available evidence, the Board concludes that the Veteran does not have a diagnosis of PTSD. As such, service connection of PTSD fails the primary criterion of service connection, and the claim must be denied based on this diagnosis. Turning to the question of other psychiatric diagnoses, unlike PTSD, the standard for other diagnosed acquired psychiatric disabilities requires the basic three elements of service-connection as discussed above (a present disability, an in-service incident/illness/ injury, and a nexus between the two). In this matter, the 2017 VA examination diagnosed unspecified depressive disorder, and unspecified insomnia disorder. Private treatment records also indicate possible adjustment disorders and anxiety. Symptom identified in the 2017 VA examination include depressed mood, anxiety, chronic sleep impairment and disturbance of motivation and mood. He also reported concentration and short-term memory issues, which were attributed to his sleep disorder. A chronic fatigue syndrome examination concluded that the Veteran does not have a diagnosis of chronic fatigue syndrome, but rather attributed his symptoms of fatigue to his depression and insomnia, as well as his unrelated obesity, which resulted in poor sleep, and thus fatigue. Following the March 2017 examination, the examiner concluded that the Veteran's service treatment records did not show any evidence of treatment for insomnia symptoms. He first reported experiencing insomnia in 1996, 8 years after his stressor incident and 5 years after discharge. As such, the symptom and the alleged cause were temporarily unrelated. Further, the Veteran's nightmares are general about imaginary events, for example, fighting, protecting himself, grabbing people, falling off buildings, etc., occurring 3-4 times per month. These are generally unrelated in content to the fire as reported by the Veteran. Therefore it was less likely than not that the Veteran's insomnia disorder was due to the fire and explosion aboard USS CONSTELLATION in 1988. Further, the examiner noted that the Veteran denied having depressive and anxious symptoms in the military, and there is no evidence of them upon review of his service treatment records. As such, depression was also less likely than not related to any incident of active service. There was no evidence that restlessness, night sweats, night terrors, cognitive issues, anxiety or short-term memory problems were related to his Gulf War service. The Board finds this opinion to be persuasive in this matter. As noted above, it was rendered by a medical specialist in contemplation of the complete medical record and the Veteran's own reports of symptomatology. It applied the facts of this case to known medical principles. Following the Board's most recent remand, the Veteran submitted significant psychiatric treatment records from Kaiser Permanente. While these records confirm ongoing treatment for various psychiatric difficulties throughout the years, they do not link the Veteran's present disabilities to any specific incident of active service, nor is there any such implication contained therein, with the exception of the 2020 record in which the Veteran reported his opinion that he had PTSD, and that record only reported the Veteran's assertions, not going so far as to make any medical conclusions regarding the etiology of his condition. There is no actual etiology opinion associated with those records. Rather, they document treatment for various issues between 2008 and 2021, a period which does not start until many years after separation from active service. As such, these records, while they do confirm a present psychiatric disability, variously diagnosed, do not provide any evidence of a link to active duty service. The Board acknowledges the Veteran's own assertions that his conditions are related to active service. In this regard, the Board notes that the Veteran admitted in his hearing before the undersigned that he did not experience any psychiatric symptoms in service or seek treatment in service. He did not experience psychiatric symptoms until many years after he separated from service, and did not seek treatment until approximately 2009 or 2010. With regard to the etiology of his present diagnoses, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his psychiatric disabilities, especially in light of the VA specialist's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of any psychiatric disabilities or symptoms in service. See id. In short, the Veteran is not competent to provide a medical etiology opinion regarding the onset of his disability. Neither has he asserted or established a continuity of symptoms from the time of service. In light of the above, the Board concludes that the Veteran's psychiatric conditions, variously diagnosed as depressive disorder and insomnia disorder, with symptoms of anxiety, fatigue, and memory issues, are less likely than not related to any incident of active service. Rather, the evidence of record confirms that these conditions were acquired many years following separation from active service, and are not otherwise related to any specific incident of active service, to include the 1988 fire aboard USS CONSTELLATION. As such, these claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 8. Entitlement to service connection of bilateral hearing loss The Veteran seeks service connection of bilateral hearing loss. The Board finds the claim should be denied. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies, 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in connection with his claim in October 2016. At that time, audiometric testing showed the following puretone thresholds in Hertz: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 35 LEFT 5 10 0 10 30 Maryland CNC speech discrimination testing showed scores of 100 percent in both ears. Although the evidence does suggest some hearing loss at 4000 Hertz, the complete disability picture, as demonstrated by all of the audiometric testing results, does not shown hearing loss within the statutory definition of that disability during the appeal period. The Board recently remanded that the appeal so that any outstanding private treatment records might be obtained. Although significant records were received from Kaiser, they did not include any audiometric testing data which might show evidence of a diagnosis of hearing loss during the appeal period. The Board acknowledges the Veteran's conviction that he has hearing loss which is related to active service. Unfortunately, the Veteran, as a lay person, is not competent to provide a diagnosis of bilateral hearing loss for VA compensation purposes, as that is a complex diagnosis requiring specific testing results to diagnose. Layno v. Brown, 6 Vet. App. 465, 471 (1994); Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). In light of this, the Board must conclude that the Veteran does not have a present diagnosis of hearing loss, and therefore the claim must be denied as failing the primary criterion of service connection, namely, a presently diagnosed disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Inasmuch as the Board regrets any further delay in the adjudication of this appeal, an additional remand is necessary to ensure complete development of the claims on appeal. 9. Entitlement to service connection of arthritis, claimed as joint pain 10. Entitlement to service connection of a headache disorder As discussed above, the March 2017 VA examiner provided diagnoses for the Veteran's various claimed disabilities and concluded that he did not have either an undiagnosed illness or a MUCMI. Specifically, diagnoses of bilateral chondromalacia of the patellae, cervical strain, multilevel degenerative disc disease of the cervical spine, and tension headaches were given, in addition to the various restless leg and psychiatric/sleep related issues addressed above. Although that examination report concluded that the disability picture and diagnoses (to specifically include headaches and knee/spine issues) were not related to any exposure event in service, the examiner failed to provide any explanation or analysis as to how that conclusion was reached. As such, the Board will remand these issues so that an addendum opinion may be obtained which fully assesses the claims. The appeals are remanded for the following development: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Obtain an addendum opinion from a qualified examiner regarding the Veteran's bilateral chondromalacia of the patellae, cervical strain, multilevel degenerative disc disease of the cervical spine, and tension headaches. The examiner should review the complete claims file and provide the following opinion: are any of the identified disabilities (a) bilateral chondromalacia of the patellae, (b) cervical strain, (c) multilevel degenerative disc disease of the cervical spine, and (d) tension headaches at least as likely as not related to any environmental or chemical exposure experienced in the Southwest Asia theatre of operations? A complete rationale should accompany the opinions rendered and should include a discussion of how the conclusion was reached. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel