Citation Nr: 21067706 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-28 850 DATE: November 5, 2021 ORDER Service connection for rheumatoid arthritis is denied. Service connection for hypothyroidism is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Service connection for insomnia is denied. FINDINGS OF FACT 1. The Veteran has not submitted sufficiently detailed information for verification of his stressors thereby rendering the diagnoses of PTSD of record invalid for VA compensation purposes. 2. The most probative evidence of record weighs against a conclusion that the Veteran has rheumatoid arthritis, hypothyroidism, or an acquired psychiatric disorder due to service; rheumatoid arthritis was not shown to a compensable degree within one year of service. 3. The Veteran does not have a sleep disorder due to service or that is distinct from sleep apnea or a symptom of a psychiatric disorder. CONCLUSIONS OF LAW CONCLUSIONS OF LAW 1. The criteria for service connection for rheumatoid arthritis are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for hypothyroidism are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2021). 4. The criteria for service connection for insomnia are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to June 1991. This case was remanded by the Board of Veterans' Appeals (Board) in January 2019 and is now ready for appellate review. I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309 (a), such as arthritis. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. 38 C.F.R. § 3.304 (f)(2). If a stressor claimed by a Veteran who did not engage in combat is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Once the claimed stressor has been verified, the Veteran's personal exposure to the event may be implied by the evidence of record. A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307(1997). [Insert Text] II. Analysis The service treatment reports (STRs), to include the reports from the May 1991 separation examination, are silent for rheumatoid arthritis, hypothyroidism, a psychiatric disorder, or insomnia. On a medical history collected at separation from service, the Veteran specifically denied having "[a]rthritis, [r]heumatism, or [b]ursitis," [d]epression or excessive worry, "[n]ervous trouble of any sort, or "[f]requent trouble sleeping." The STRs do reflect that the Veteran received nutritional advice to control his weight. Official service department records reflect duty that included service in the Southwest Asia Theater of Operations as a munitions systems specialist. However, the Veteran's awards and decorations are not indicative of combat. The post-service evidence includes reports from a January 2011 VA PTSD examination which reflected the Veteran asserting that he had PTSD due to stressors faced during his service in Southwest Asia. In particular, he reported an incident in which he feels someone in a vehicle tried to kill him while he was in the market of a city; witnessing a bus being shot by five men in front of the hotel he was living in; and observing a SCUD missile attack over his base that landed in the Dead Sea. Following an examination of the Veteran, the diagnosis was adjustment disorder with depressed features with the examiner finding that the criteria for a diagnosis of PTSD were not met. The examiner concluded that the Veteran did not have any mental health problems with a "direct nexus" to service. Thereafter, a January 2013 VA psychiatric examination diagnosed the Veteran with depressive disorder not otherwise specified. The examiner also found as follows: [The] Veteran's sleep problems appear to be attributable to his depression condition. He also reports sleep problems due to chronic pain of arthritis, and a diagnosis of sleep apnea is in the records. Any and/or all of these conditions are responsible for sleep problems. He does not have a separate insomnia condition. [The] Veteran reports arthritic and pain issues have been problematic since 1991 when he was in Gulf War but depression onset appears to be in 2010 after the divorce. It is unclear when medical documentation of arthritic problems were documented. Vet reports ongoing stressors and lack of relief of his health conditions have contributed to depression since it's onset. Another VA examination conducted in January 2013 found that it was less likely as not that the Veteran had rheumatoid arthritis due to service. The rationale for the opinion was follows: [The] C[aims file was reviewed prior to rendering the following opinion. [The]Veteran had an extensive evaluation of his claimed conditions at the Palo Alto VA [medical center] in 5/2012 and was diagnosed with seronegative rheumatoid arthritis. [The] Veteran is presently followed by the Rheumatology clinic for seronegative rheumatoid arthritis. He has a family history of rheumatoid arthritis (mother). This diagnosed disease is not related to any exposures/events in SW [Southwest] Asia while he was on military service. The above opinions notwithstanding, during September 2006 treatment, the Veteran reported swelling in the thumb on his right hand when coming back from Saudi Arabia in 1991. His parents stated in February 2013 that when the Veteran came back from military service in June 1991, he no longer was able to water ski without a lot of pain and swelling in his hands. He also indicated during the September 2006 treatment that he had pain in his hands for the last ten years. In light of these statements and the fact that the January 2013 opinion with respect to rheumatoid arthritis was limited to addressing whether such was the result of the Veteran's service in Southwest Asia, the January 2019 remand directed that the Veteran be afforded an opinion concerning service connection for rheumatoid arthritis that addressed the entirety of the Veteran's period of active duty. Such was completed in April 2020 as follows: This Examiner agrees with the previous opinion. [The January 2013] opinion regarding rheumatoid arthritis (RA) and Southwest Asia exposure is correct. The Veteran has severe RA and a strong family history of RA. This [e]xaminer is of the opinion that it is NOT at least as likely as not [that RA is] related to an in-service injury, event, or disease and [] it is [not] at least as likely as not [that RA] (1) began during active service, (2) [was] manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. RATIONALE: There is insufficient evidence that the Veteran's symptoms have any causal relationship with service. Specifically, there is no evidence that they (1) began during active service, (2) [were] manifested within one year after discharge from service, or (3) [were] noted during service with continuity of the same symptomatology since service . . . The Veteran has a long list of co-morbidities and extensive systemic disease, and some alone or in combination can cause, aggravate, or contribute to the claimed symptoms. As noted by [several named physicians], the Veteran's [p]olyarthropathy/myalgias [are] likely multifactorial. In addition he has gout, morbid obesity, hypothyroidism, and hypogonadism (and several other diagnoses), all impacting his symptomatology. With respect to hypothyroidism, the January 2019 remandnoting the in-service nutritional advice to prevent weight gain and that fact that hypothyroidism was diagnosed for the first time in 1995referenced a medical treatise which indicated that some of the symptoms of hypothyroidism are weight gain. As such, the remand directed that the Veteran be afforded an examination to ascertain the nature and etiology of the Veteran's hypothyroidism, including a medical opinion on whether it was at least as likely as not related to his active military service. The requested examination and opinion was completed in September 2020, and the examiner concluded as follows: The claimed condition (hypothyroidism) was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Record review notes entry weight to the military at 150 pounds. Exit weight 4 years later 167 [in] 1991. First noted weight after leaving service is 6/29/2011 345 pounds, 09/14/2011 358, 10/14/2011 341.5, 5/24/2012 333, 03/8/2016 295, 06/07/2017 317, 08/02/2018 340, 06/07/2019 326. There is no arguing that the [V]eteran has hypothyroidism based on his recent lab results. However, there is no evidence that he had a weight problem during service or within a year of leaving service to support a connection with his service time and the development of hypothyroidism. As for a psychiatric disorder to include PTSD, the January 2019 remand noted that the January 2013 memorandum making a formal determination that sufficient information had not been furnished to verify stressors preceded a January 2013 VA psychiatric examination; the Veteran's February 2013 statement describing stressors, to include an incident while stationed in Saudi Arabia on February 4, 1991, involving a Saudi general and CIA; a statement submitted by the Veteran's parents in March 2013 a statement describing the Veteran's nightmares and hypervigilant behaviors when he returned from service; and an August 2013 finding by an examiner that the Veteran had PTSD. As such, the remand directed that the Veteran be contacted to supply details as to his alleged stressors and afford him an examination to ascertain the nature and etiology of his psychiatric disorder, and a medical opinion concerning whether any psychiatric disorder was at least as likely not related to his active military service, to include the alleged stressor events. Following the January 2019 remand, the Veteran was issued a letter in May 2019 notifying him that his February 2013 stressor statement did not meet the minimum level of detail needed for VA to seek assistance from the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the Veteran's stressors, and requested that the Veteran report more detailed information as to his alleged stressors, to specially include the reported incident with the Saudi general and CIA. This letter was again sent to the Veteran September 2019 after the Veteran failed to respond to the May 2019 letter. The Veteran did ultimately provide another stressor statement in November 2019 that discussed the reported incident with the Saudi general and CIA and repeated his stressor of almost being hit by a car in an incident he felt was an intentional attempt on his life. An August 2019 statement from a service comrade reported that he was present when a vehicle approached in an attempt to kill them and that he was also a witness to the bus being shot at in front of their hotel in Saudi Arabia. After a review of the preceding evidence and the entirety of the claims file, a September 2019 memorandum again made a formal determination that sufficient information had not been furnished to verify stressors. With respect to the requested examination and opinion to address the claim for a psychiatric disorder, such was completed in September 2020 with the examiner concluding that Veteran had depressive disorder due to hypothyroidism. The examiner also concluded as follows: I believe that the Veteran's stated symptomology related to his service does not meet full criteria for PTSD. Psychodiagnostic testing to include neuropsychological testing, cognitive functioning and temporal organization were completed [on] May 23, 2012. A PTSD checklist was included, which indicated PTSD was not likely. [The] Veteran has been assessed multiple times for PTSD, and it has been consistently ruled out until recently. He did not report a level of symptoms that would rise to meet the criteria for PTSD. I believe that his current functional impairment is due to his [d]epression related to his multiple medical conditions, to include hypothyroidism, as well as to his current life circumstances. Finally with respect to insomnia, the January 2019 remandafter noting that the January 2013 VA examiner attributed the Veteran's insomnia to depression and arthritis and indicated that the Veteran had sleep apnea but did not have a separate insomnia conditionrequested an addendum opinion to clarify whether insomnia was a disability in itself, symptom of an acquired psychiatric disorder, or a direct consequence of physical pain from his arthritis. This opinion was completed by a VA examiner in April 2020, who did find that the Veteran did have PTSD, and concluded that the Veteran's insomnia was one of the symptoms of his PTSD and was subsumed by this condition. He clarified further that "the Veteran does not have a sleep disorder that is distinct from sleep apnea or a symptom of any psychiatric disorder." The undersigned finds the above opinions to be definitive as to the matters for consideration as they are documented to have been based on a thorough review of the clinical history and are supported by detailed rationale. In making this determination, the undersigned acknowledges the Veteran's assertions as well as that of his attorney that he has rheumatoid arthritis, hypothyroidism, an acquired psychiatric disorder, and insomnia due to service. However, such complex medical matters as whether these conditions are etiologically related to service as discussed in the medical opinions are within the province of trained medical and mental professionals who completed these opinions. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran or attorney are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with rheumatoid arthritis, hypothyroidism, an acquired psychiatric disorder, and insomnia since service, the undersigned finds the silent STRsincluding the silent separation examination and medical history collected at that time, with the specific denial by the Veteran himself at separation of "[a]rthritis, [r]heumatism, or [b]ursitis," [d]epression or excessive worry, "[n]ervous trouble of any sort, or "[f]requent trouble sleeping"to be more probative than any lay assertions made in connection with the claims for service connection for the conditions at issue, and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. While the Board recognizes the diagnoses of PTSD of record, as such are not shown to have based on a verified stressor, they are invalid for VA compensation purposes. See 38 C.F.R. § 3.304(f). Finally, as the Veteran's rheumatoid arthritis was not demonstrated to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the undersigned finds that the preponderance of the evidence is against the claims for service connection for rheumatoid arthritis, hypothyroidism, an acquired psychiatric disorder, and insomnia. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.