Citation Nr: 21067168 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-54 712 DATE: November 3, 2021 ORDER Entitlement to service connection for chronic fatigue, to include chronic fatigue syndrome (CFS), is denied. Entitlement to service connection for migraine headaches is denied. Entitlement to an effective date prior to August 21, 2015 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to August 21, 2015 for the grant of service connection for a bilateral hearing loss disability is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. REMANDED Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected sinusitis, is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's symptoms of fatigue are related to service-connected disabilities; there is no evidence that he has chronic fatigue as a primary disorder, to include CFS. 3. The more probative evidence is against finding that the Veteran had migraine headaches in service or has a current diagnosis of migraines. 4. There is no probative evidence that the Veteran filed a claim for entitlement to service connection for bilateral hearing loss or tinnitus prior to August 21, 2015. 5. During the October 2020 video conference hearing, the Veteran withdrew his claim for an initial rating in excess of 10 percent for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic fatigue, to include CFS, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. The criteria for entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. The criteria for entitlement to an effective date prior to August 21, 2015 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for entitlement to an effective date prior to August 21, 2015 for the grant of service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent for tinnitus by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1981 and from December 2002 to June 2003; he also served in the Reserve. This appeal to the Board of Veterans' Appeals (Board) is from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned during a video conference hearing; a transcript of the hearing is in the record. At the hearing, the Veterans Law Judge agreed to keep the record open for 90 day to give the Veteran additional time to submit evidence. Additional pertinent VA treatment records were added to the Veteran's file after the RO issued the February 2018 supplemental statement of the case (SSOC). In June 2021, the Board gave the Veteran 45 days to respond to correspondence that asked him if he wanted the evidence to be initially reviewed by the agency of original jurisdiction (AOJ) or if he wanted to waive AOJ consideration. Since the Veteran did not respond within the prescribed period of time, the Board assumes he wishes to have the issues with pertinent evidence in those records remanded. The Board notes that while these records make references to fatigue and headaches, such evidence is cumulative and not pertinent to the service connection claims involving migraines and chronic fatigue since evidence previously considered also noted similar complaints. Thus, the Board may adjudicate those issues with no prejudice to the Veteran. Service Connection Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either 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, 2026, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" includes a medically unexplained chronic multisymptom illness, such as IBS, that is defined by a cluster of signs of symptoms. See 38 U.S.C. § 1117(a)(2)(B), 1118; 38 C.F.R. § 3.317(a)(2)(i)(3). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi,19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for chronic fatigue, to include CFS. The Veteran indicated in his claim and during the October 2020 hearing that he was seeking service connection for fatigue. He testified that he felt worn down and unable to do things due to feeling too fatigued and tired. As an initial matter, the Board notes that the Veteran's service-connected posttraumatic stress disorder and fibromyalgia are already shown to include symptoms of fatigue. See June 2020 CAPRI records. However, the Board will nevertheless consider if there are other causes for the Veteran's fatigue. Service treatment records during his periods of active duty are silent for complaints or findings of fatigue. An April 2003 post-deployment health review shows he denied have current symptoms or symptoms during his deployment that involved feeling tired after sleeping. See July 2005 STR Medical. While the record contains post-service complaints of the Veteran feeling fatigued, there is no evidence of a fatigue disorder, to include CFS. In September 2016, the Veteran reported that respiratory infections left him feeling short of breath, which impacted his stamina. See September 2016 C&P Exam. The Board notes that sinusitis and chronic obstructive pulmonary disease (COPD) are also service-connected disabilities. See June 2020 Rating Decision Codesheet. A March 2017 VA examination noted the Veteran had a great deal of difficulty falling asleep and that he had daytime fatigue. See March 2017 C&P Exam. Another March 2017 VA examination shows that the Veteran stated he felt fatigue when he first returned from the Gulf after he served in the Persian Gulf. The clinician found that the Veteran's fatigue did not meet the criteria for CFS and opined that his fatigue was most likely related to his emotional upset as the result of the severe life threatening illness he experienced from the severe sinus infection that spread to his throat causing Ludwig's angina as well as bronchitis. The Veteran spent hours in bed because of an inability to fall asleep and was chronically fatigued, but that his symptoms did not meet the criteria for a CFS diagnosis. Based on the record, the evidence shows that the Veteran's fatigue is a symptom of his service-connected disability; there is no evidence that it is a primary disorder, such as CFS. Since his fatigue is shown to only be related to diagnosed disorders, it is, therefore, not due to an undiagnosed illness or multisymptom illness related to his service in the Persian Gulf. There is no probative medical evidence of record that supports the Veteran's contention. As such, a preponderance of the evidence is against the claim and service connection for fatigue is denied. 2. Entitlement to service connection for migraine headaches. At the October 2020 hearing, the Veteran stated he had migraines in 2004 to 2005. See October 2020 Hearing Transcript. His April 2016 claim indicates they began in 2003 in the Persian Gulf. The Board notes that the Veteran's service-connected sinusitis includes consideration of associated headaches and that the Veteran is seeking service connection specifically for migraine headaches. 38 C.F.R. 4.97, Diagnostic Code 6512. Although the Veteran has indicated his migraines started in service, his service treatment records contain no complaints or findings of migraine headaches. While he did complain of headaches, they were found to be associated with sinus problems and did not result in a diagnosis of migraines. The June 2003 Report of Medical Assessment for separation shows his last physical was December 2002 and that he did not report having any problems with migraines in his June 2003 medical history. See June 2005 STR Medical Photocopy. A November 2016 private treatment record shows he complained of having multiple symptoms including migraines; however, the medical assessment only noted sinusitis bronchitis. See November 2017 Medical Treatment Record Non-Government Facility. On a March 2017 VA examination, the Veteran reported that his headaches sometimes became very severe, and he referred to them as "migraines." When this occurred, he put ice on his forehead and remained in a dark room with no lights on until the headache subsides. The clinician opined that the Veteran's recurrent headaches were the direct consequence of the sinus infections and only offered a diagnosis of sinus headaches. See March 2017 C&P Exam. While the Veteran is competent to report his symptoms, he does not have the medical training or knowledge to diagnose the source of his headaches. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). His opinion is certainly not more probative than medical professionals who have evaluated him and did not diagnose his headaches as migraines. As the more probative evidence of record establishes the Veteran does not have migraine headaches, a preponderance of the evidence is against the claim. Under the circumstances, service connection must be denied. Effective Date 3. Entitlement to an effective date prior to August 21, 2015 for the grant of service connection for tinnitus. 4. Entitlement to an effective date prior to August 21, 2015 for the grant of service connection for a bilateral hearing loss disability. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award of disability compensation to a veteran shall be the day following the date of discharge or release if application is received within one year from such date of discharge release. 38 U.S.C. § 5110(b)(1). On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or their representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). As the appeal in this case was filed after that date, the amendments are applicable, so they will be applied. Accordingly, for the purposes of this case a claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). If a veteran submits to VA an intent to file a claim, VA will furnish the Veteran with the appropriate form to file their claim. 38 C.F.R. § 3.155(b). If an application is filed within one year of the intent to file, VA will consider the complete claim filed as of the date of the intent to file for effective date purposes. 38 C.F.R. § 3.155. During the October 2020 hearing, the Veteran was asked if he filed a claim before August 21, 2015 and he stated that when he returned from the Persian Gulf "they had written all of that down when I was in Norfolk when we were doing our separation, all our issues and everything." He stated he filled out a lot of papers back then, but he could not recall specifics. See October 2020 Hearing Transcript. Although the Veteran's service treatment records include an April 2003 post-deployment health assessment and a June 2003 medical assessment that show the Veteran had to report his symptoms and disorder, neither is considered a claim for VA benefits. See June and July 2005 STR Medical. There is no evidence of record that shows he filed any claims for hearing loss or tinnitus when he separated from service. On August 21, 2015, the RO received an intent to file a claim, which was followed by a formal claim in April 2016 that specifically sought service connection for hearing problems. See March 2015 Notification Letter and April 2016 VA 21-526EZ. Thus, there is no evidence of a claim being raised prior to August 21, 2015. For this reason, a preponderance of the evidence is against the claim for earlier effective dates, so the claims are denied. Increased Rating 5. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the October 2020 hearing, the Veteran stated that he wished to withdraw his appeal for a higher rating for tinnitus, since the disability was already assigned the maximum schedular rating. See October 2020 Hearing Transcript. In light of his testimony, the requirements for withdrawing an appeal have been met. Hence, there remain no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. (Continued on next page) REASONS FOR REMAND 6. Entitlement to service connection for a bilateral eye disorder, to include as secondary to service-connected sinusitis, is remanded. During the Veteran's hearing, he stated he was treated at MedExpress for his eyes and that he also saw a private eye doctor. Since these records are not in the file, the matter must be remanded to obtain them. He also stated he was told that his bilateral eye disorder was secondary to his service-connected sinusitis, but there is no opinion of record to support his contention. A VA examination is needed to determine the nature and etiology of the claimed disability. 7. Entitlement to service connection for dizziness is remanded. 8. Entitlement to service connection for a skin disorder is remanded. Regarding the Veteran's dizziness and skin disorders, the record does not contain a diagnosis for either disorder, but he is competent to report his symptoms. Since the appellant is a Persian Gulf Veteran, the Board must also consider whether his claimed disorders fall within the scope of a multisymptom illness under 38 C.F.R. § 3.317. As he has not had any VA examinations to get an opinion, these matters must be remanded to determine if the claimed disabilities are related to service. 9. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. During the Veteran's October 2020 hearing, he stated that his hearing had gotten worse since his last VA examination; therefore, the matter must be remanded to get an examination to assess the current level of disability. 10. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. Subsequent to the February 2018 SSOC, the RO obtained May 2018 and January 2019 VA examinations of the shoulder that were not considered in connection with the Veteran's claim for an increased rating. Thus, the matter must be remanded to allow the AOJ readjudicate the claim after consideration of this evidence. These matters are REMANDED for the following action: 1. Contact the Veteran and have him complete and return releases for MedExpress and the private clinician who treated his bilateral eye disorder. Also inform him that he may submit this evidence on his own. Document all attempts to obtain copies of these treatment records. 2. After #1 is completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed bilateral eye disorder. The claims file and a copy of this remand must be made available to and reviewed by the clinician. Based on the examination and file review, the examiner must address the following: a) Does the Veteran at least as likely as not (50 percent or greater probability) have an eye disorder that had its onset during service or is otherwise related to service? b) If the above response is no, then opine whether the Veteran has an eye disorder that is at least as likely as not caused or aggravated by his service-connected sinusitis. Note that the Veteran stated during his hearing that he was told his sinusitis caused him to get conjunctivitis. c) The clinician must explain the rationale for each opinion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his dizziness. The claims file and a copy of this remand must be made available to and reviewed by the clinician. Based on the examination and file review, the examiner must address the following: a) Is the Veteran's dizziness attributed to a known diagnosis or pathology? If yes, is it at least as likely as not (50 percent or greater probability) related to service? b) If not, is his dizziness at least as likely as not a medically unexplained multisymptom illness, as defined in 38 C.F.R. § 3.317(a)(2)(ii)? c) The examiner must explain the rationale for each opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his skin disorder. The claims file and a copy of this remand must be made available to and reviewed by the clinician. Based on the examination and file review, the examiner must address the following: a) Is the Veteran's skin disorder attributed to a known diagnosis or pathology? If yes, is it at least as likely as not (50 percent or greater probability) related to service? b) If not, is his skin disorder at least as likely as not a medically unexplained multisymptom illness, as defined in 38 C.F.R. § 3.317(a)(2)(ii)? c) The examiner must explain the rationale for each opinion. 5. Schedule the Veteran for a VA examination to address the current severity of his service-connected bilateral hearing loss. The clinician must also comment on the impact of his bilateral hearing loss on his daily functioning. 6. Consider the evidence added to the record after the February 2018 SSOC and along with the other pertinent evidence of record, readjudicate all remaining claims on appeal, to include the claim for entitlement to a higher rating for the Veteran's left shoulder disability. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.