Citation Nr: 21065821 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-36 662 DATE: October 27, 2021 ORDER Entitlement to service connection for skin tags is granted. Entitlement to service connection for patches of numbness and/or hypersensitivity is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran's skin tags began during active service. 2. The preponderance of the evidence is against finding that the Veteran had patches of numbness or hypersensitivity during service or within one year of service or was objectively observed as having these patches for at least six months (including intermittently), or that the patches manifested to a compensable degree. 3. The preponderance of the evidence is against finding that hypertension began during active service, is otherwise related to an in-service injury or disease, or manifested to a compensable degree. 4. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service or is otherwise related to an in-service injury or disease. The Veteran's sleep apnea is attributed to obesity. 5. The Veteran's erectile dysfunction is not caused or aggravated by service-connected migraines or migraine medicine and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for skin tags are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for numbness and/or hypersensitivity are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1995 and January 2002 to December 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014, September 2016, and July 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board. Via a July 2021 letter, the Veteran was offered an opportunity to have another Board hearing; however, he did not respond within 30 days. Therefore, the Board finds another hearing is not warranted. A transcript of the June 2019 hearing has been associated with record and will be considered as part of this claim. In October 2019, the Board remanded this appeal for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). In order to establish service connection on a secondary basis, there must be (1) a current non-service-connected disability, (2) a service-connected disability, and (3) evidence showing that the current non-service-connected disability is either proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310. VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air 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; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i) and (ii). For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders (excluding structural gastrointestinal diseases. 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). For purposes of 38 C.F.R. § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). Compensation shall not be paid under 38 C.F.R. § 3.317: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Of note, the Veteran asserts that based on his medical training he is competent to provide expert testimony in this case, although he admits he is unable diagnose impairments. The Board acknowledges the Veteran had medical training while in the service. However, when a VA examiner weighs all appropriate evidence, the Veteran's statements are not given as much weight as the VA examiner. Unlike the VA examiners, there is no indication that the Veteran has completed recent and relevant training. Therefore, his expertise in the field of medicine may have lapsed. The Veteran's August 2017 appeal indicates that his work in the medical field was prior to August 2017. Moreover, it is unclear what training and certifications he obtained to become and maintain his position as an "EMT" or as a corrections medical specialist. Even if the Veteran kept any medical certification current, there is no evidence in the record indicating that the Veteran has the training necessary to link any of the disabilities he has and/or asserts that he has to a particular cause. Skin tags The Board finds that the Veteran's skin tags are service connected. Satisfying the first element for direct service connection, the Veteran has had skin tags since he was out of service. In March 2016, the Veteran had a skin tag removed from his right arm pit. In November 2018, the Veteran had skin tags removed from both armpits. As for the second element, the Veteran had skin tags while in the armed services. For example, in August 1993 he had skin tags. As for a nexus, the Veteran's entrance examination into service does not show that the Veteran had any problems with his skin. The Veteran also reported having skin tags all over his body, including his face and the Veteran stated that skin tags have been a fairly constant problem. The Board finds that the Veteran is competent to testify to his skin symptoms. The June 2016 VA examiner and the February 2020 VA examiner failed to evaluate the possibility that the skin tags were related to the Veteran's service outside of Southwest Asia. As a result, the opinions are incomplete. In fact, the February 2020 VA examination is not compliant with remand instructions which specifically ordered an examination to include an opinion on whether skin tags were related to service, including time not in Southwest Asia. Because there is evidence that the Veteran had skin tags while in service and continues to have them to this present day, the evidence is in relative equipoise in showing that the current skin tags are as likely as not to have had a clinical onset in service. Furthermore, resolving any doubt in the Veteran's favor, the Veteran's testimony, which is credible demonstrates that symptoms were relatively continuous since service separation. See 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258 (2015). Numbness and/or hypersensitive skin patches The Veteran contends that areas of his skin intermittently experience numbness, hypersensitivity and/or dysesthesia and that his skin condition is service connected. This claim is denied because it is not entitled to a Gulf War presumption of service connection, nor is it directly service connected. In May 2014, at a VA examination the Veteran complained of intermittent numbness and dysesthesia for 10 years. Upon examination, the Veteran had hypersensitivity to touch, but no numbness. The VA examiner opined that the hypersensitivity was not related to a Gulf War Syndrome because the symptoms began 10 years after the Veteran returned from the Gulf War. Medical records show that the Veteran did not experience numbness in March 2017, October 2017, and September 2018. An April 2019 VA examiner stated that the Veteran does not have a diagnosed illness for which there is no etiology. A December 2019 VA examination indicates that about once a month, the Veteran has fleeting numbness that lasts no more than a few minutes and that it affects different parts each time and then is spontaneously relived. In June 2019 hearing testimony, the Veteran specifically reported that numb skin patches began to appear on his arm in 1993 or 1994. He added that spots typically only last for a day or two. However, six months later in December 2019, the Veteran told a VA examiner that spots only last a few seconds to a few minutes. At the December 2019 VA examination, the examiner was unable to diagnose the Veteran with anything meaning the Veteran did not have an undiagnosed illness, a chronic multi-symptoms illness of unknown etiology, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a disease with a clear and specific etiology and diagnosis. The record lacks evidence of these skin patches causing a functional limitation. Based on the evidence, the Board finds the Gulf War presumption is inapplicable. The Veteran served in Southwest Asia, however, he does not have a diagnosed condition, and has not exhibited objective evidence of having a qualifying chronic disability for six months. A lack of objective evidence precludes application of the Gulf War presumption. There is no objective evidence that the condition lasted six months, only subjective evidence (the Veteran's statements). Specifically, the Veteran was observed to have transient hypersensitive skin in May 2014. However, that is the only time he was observed with such. Other than the Veteran's statements, the record lacks continued medical diagnoses or observations concerning the Veteran's numbness, hypersensitivity, and/or dysesthesia. Moreover, the Gulf War presumption does not apply because the Veteran's numbness and/or hypersensitivity is not rated to a compensable degree. As already mentioned, in December 2019, the Veteran reported that he had fleeting pain that lasts a second to few minutes about once a month. He added that the sensation impacts a different body part each time and is spontaneously relieved. Even if the Board finds that hypersensitive skin lasted one to two days as stated during the hearing, there still is not evidence of functional loss. In addition, the sensation occurs in a unique area of the body. The Board finds no evidence of resulting weakness, excess fatigability, or incoordination to warrant a 10 percent rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, this claim fails on a direct basis not only is there no diagnosis, but even if there was, the second element for direct service connection is not satisfied. That is, the Veteran did not have numbness, hypersensitivity, and/or dysesthesia while in service or within one year of service. There is nothing linking an inservice event to the Veteran's condition, nor has a specific in-service trigger event been mentioned by the Veteran. The only possible connection is that Midrin-1, which the Veteran took for headaches can cause transient numbness. However, the Veteran is no longer taking the medication. As mentioned, VA examiners have stated that the hypersensitivity and numbness did not come from service. The examiners review of the record, their training, and consensus justify giving their opinions significant weight. Therefore, the claim fails on a direct basis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Hypertension The Veteran contends his hypertension is service connected. However, the Board finds that the Veteran's hypertension is not entitled to a Gulf War service connection presumption, nor is it directly service connected. The Veteran's hypertension was not diagnosed until 2016. A June 2016 examiner opined that it is less likely than not that the Veteran's hypertension is related to his Gulf War service. In support of the opinion, the examiner stated the Veteran did not allege any specific medical or environmental exposure problem which caused his hypertension. The examiner added that the Veteran's hypertension is not entitled to a Gulf War presumption because there has never been any acceptable medical study or documentation that proves that any Gulf War experience/exposure causes or aggravates hypertension. The examiner stated that hypertension is a permanent resetting of the tone of the vascular system, and is related to many factors including genetics, family history, obesity, diet, salt intake, etc. Environmental exposure events have not been linked to hypertension. Further supporting the lack of a Gulf War Connection is the April 2019 VA examiner's statement that the Veteran does not have any diagnosed illnesses for which there is no etiology. A December 2019 VA examiner stated that due to the extended duration between service and diagnosis, the Veteran's hypertension was less likely than not related to service. A September 2020 VA examiner agreed that the record shows that the Veteran did not have abnormal blood pressure readings or treatment of hypertension until 2016. As a result, the examiner also opined that the Veteran's hypertension was less likely than not related to his time in service. The Veteran argued that since he has been on hypertension medication for five to six years the Gulf War presumption applies under 38 C.F.R. § 3.317. The Veteran supported his argument by stating he does not have a lot of risk factors for hypertension. However, the Gulf War presumption does not apply, because while the Veteran served in Southwest Asia, and is diagnosed hypertension, that diagnosis is not found in 38 C.F.R. § 3.317. In addition, the Veteran's blood pressure has never read greater than 160 for systolic or 100 for diastolic two or more times on at least three different days. Therefore, the hypertension is not compensable. Also, the Board finds the Veteran's hypertension is not directly service connected because the second element required for direct service connection is not satisfied. The Veteran did not have hypertension while in service or within one year of service. Moreover, the Veteran does not identify an in-service event and the Board does not find one that would trigger the Veteran's hypertension. Therefore, the claim also fails on a direct basis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Obstructive Sleep Apnea The Veteran contends that his obstructive sleep apnea is service connected. At the June 2019 hearing, the Veteran testified that while in service he would wake up at night gasping for breath. The Veteran asserted that because he had this issue prior to gaining weight, the symptoms show he developed obstructive sleep apnea while in service. In hearing testimony and in filings, the Veteran further added that his obstructive sleep apnea could be categorized under 38 C.F.R. § 3.317 and treated as sleep disturbance or chronic fatigue. The Veteran further stated that in 2011 he developed fatigue, tiredness, and lack of motivation and that it does not correspond with a particular diagnosis and, therefore, it is a medically unexplained chronic multi symptoms illness. However, the Boards finds the Veteran's obstructive sleep apnea is not service connected and the veteran does not have another sleep impairment. Despite the Veteran's contentions, while in service, the Veteran did not make complaints of symptoms consistent with obstructive sleep apnea. For example, in July 1989, the Veteran complained of cough which was worse at night. At the time, he also had congestion accompanied with a moderate redness of the throat and inflammation. He was diagnosed with a viral syndrome. In February 1991, the Veteran's coughing was diagnosed as an upper respiratory infection. Also, in 1991, medical records show that the Veteran had a history of bronchitis. That being said, in October 1993 the Veteran stated he had not had bronchitis like episodes in the past year. Service treatment records from March 1995 and April 1995 show that the Veteran was not having trouble while sleeping. In July 1999 the Veteran did not report trouble sleeping. In October 2000 the Veteran had difficulty breathing because of a deviated septum and polyps on the right nasal passage. In January 2002 and November 2002, the Veteran did not report difficulty sleeping, coughing, or gasping for air. However, in November 2002, the Veteran reported having shortness of breath. This shortness of breath was never tied to sleep apnea. That Veteran's statements are inaccurate because the sleep disturbance, which cause fatigue and tiredness has been diagnosed as obstructive sleep apnea. 38 C.F.R. § 3.317 applies to undiagnosed disorders. In further support of this is the May 2014 VA examination which states the Veteran does not have chronic fatigue syndrome. Furthermore, an April 2019 VA examiner stated that the Veteran does not have any diagnosed illnesses for which there is no etiology. Examiners reasoned that the Veteran's in-service shortness of breath, coughing and wheezing were symptoms of bronchitis, which he was treated for while in service. In December 2019, a VA examiner stated that the Veteran's sleep apnea was caused by morbid obesity. The examiner continued that the sleep apnea had no correlation with the Veteran's services in Southwest Asia. According to a September 2020 VA examiner, the Veteran's obstructive sleep apnea is not aggravated by another service connected disability, was not present while in service, and it is not related to the Veteran's period in the service. The examiner opined that because the Veteran was successfully treated for bronchitis while in service and coughing, wheezing, shortness of breath and waking up gasping for breath, all symptoms of bronchitis, he did not have obstructive sleep apnea in service and had bronchitis. Once again, the Board finds the Gulf War presumption for service connection does not apply. The Gulf War presumption does not apply for obstructive sleep apnea, because the Veteran satisfies some, but not all of the criteria for the presumption to apply. The Veteran has been diagnosed with obstructive sleep apnea, which is not listed in 38 C.F.R. § 3.317(c)(2). Moreover, the disease manifested to a degree of 10 percent by December 31, 2021 and lasted more than six months. In addition, the disease has not been diagnosed as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal order. The medical evidence suggests that the Veteran's sleep apnea results from morbid obesity. Moreover, there is nothing in the record, other than the Veteran's statements that would suggest the Veteran has another disability related to sleeping. As a result, the disease does not qualify for a Gulf War presumption. As for direct service connection, while the Veteran does have obstructive sleep apnea, the Board finds there was no in service event or occurrence related to the Veteran's sleep apnea. The Veteran did not have sleep apnea while in service or within a year of service. The Veteran does not point to a single event or a series of events that could cause sleep apnea. Therefore, the claim fails on a direct basis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. Erectile dysfunction The Veteran contends that his erectile dysfunction is service connected on a secondary basis and related to his migraine headaches. The Board finds the evidence does not support such a contention and denies the claim. The first element of the claim is satisfied the Veteran has erectile dysfunction. The Veteran's service connected migraines satisfy the second element. However, the claim fails on the third element. In May 2017, a VA examiner opined that the Veteran's erectile dysfunction was not caused by the Veteran's migraine or migraine medication because the side effect of topiramate do not include erectile dysfunction. According to a September 2020 VA examiner, the Veteran's erectile dysfunction is due to hypogonadism. Both the Veteran's erectile dysfunction and hypogonadism are less likely than not proximately due to or the result of his service and/or service connected conditions. The examiner added it is not correlated to the Veteran's migraines or migraine medications. Nor is it aggravated by them. In support of the examiner's position, it was noted that the Veteran's migraine medication causes dose dependent reversible erectile dysfunction. The examiner reasoned that the Veteran was not having migraines regularly enough nor was the Veteran taking migraine medication regularly enough for either to play a role in his erectile dysfunction. The Board finds the examiner's opinion convincing and gives it great weight because of the examiner's training and the examiner's review of the record. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.