Citation Nr: 21068511 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-05 646 DATE: November 10, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to an initial compensable rating for a left shoulder cyst is dismissed. REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder, is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A right ankle disability is not shown to be causally related to an in-service injury or disease. 2. During her July 2021 hearing and prior to the promulgation of a Board decision, the Veteran stated she wished to withdraw her appeal of the issue of entitlement to an increased rating for a left shoulder cyst. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1118, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for withdrawal of the claim for an increased rating for a left shoulder cyst by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of the hearing is of record. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. The term Persian Gulf Veteran means a veteran who served on active duty during the Persian Gulf War in the Southwest Asia theater of operations, which refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(1)(2). The Persian Gulf War is defined as the period beginning on August 2, 1990, and ending on the date thereafter prescribed by law. 38 U.S.C. § 101(33). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Entitlement to service connection for a right ankle disability. The Veteran was diagnosed with a right ankle strain during an October 2015 VA ankle examination, with the examiner further noting that x-ray images taken at the time of the examination were normal. 38 C.F.R. § 3.309(a). While the Veteran is considered a Persian Gulf War veteran, as she has been diagnosed with a right ankle disability with a known etiology and pathophysiology the presumption in favor of Persian Gulf veterans does not apply in this particular case. 38 C.F.R. § 3.317(a), (e)(1)(2). Concerning an in-service injury or disease, service treatment records clearly reflect that the Veteran was treated for right ankle tendinitis in April 1990. As a current disability and an in-service injury have been shown, the dispositive issue is whether the current disability is causally related to the Veteran's period of service. The Veteran has generally asserted that her current right ankle disability is directly related to her period of service. However, she is not competent to provide such an opinion as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, these assertions are entitled to no probative weight. The Board notes that the Veteran has further asserted that she has experienced persistent right ankle symptoms since service. However, these assertions conflict with the Veteran's other statements of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, the Veteran's May 1991 separation medical examination noted that her lower extremities were normal. Further, on the corresponding report of medical history the Veteran specifically denied any current problems with broken bones, arthritis, rheumatism or bursitis, bone or joint deformity, foot trouble, or neuritis. While the Veteran specifically reported experiencing bilateral locking of the knee, she did not otherwise report any current or history of ankle issues. These statements made at separation directly contradict the current assertions that the right ankle disability has persisted since her period of service. As such, the assertions of persistent symptoms since service are not credible and entitled to no probative weight. Id. VA obtained a medical opinion concerning the etiology of the right ankle disability in October 2015. The examiner stated that it was less likely than not that the current disability was related to service. In support of this opinion the examiner noted that while she was treated for a right ankle disability in April 1990, there was no evidence of follow-up treatment in her service treatment records and the separation examination and report of medical history did not mention a right ankle disability. The examiner stated that this indicated that the April 1990 injury did not result in an on-going or chronic disability, and that therefore the current disability was less likely than not due to service. There is no evidence that the examiner was either not competent or credible. Further, in rendering the opinion the examiner provided a well-reasoned supporting rationale that noted the in-service injury and the Veteran's statements concerning persistent symptoms and cited directly to medical evidence of record. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). None of the VA treatment records associated with the file contain any opinions linking the right ankle disability to service, and during her July 2021 hearing the Veteran specifically denied receiving any private treatment for her right ankle disability. 38 C.F.R. § 3.159(c)(1). None of the submitted private treatment records discuss a right ankle disability of any kind. Based on the foregoing, the preponderance of the evidence is against a finding that the right ankle disability is causally related to service. The Veteran is not competent to link the current disability to service and her statements concerning persistent symptoms since service are contradicted by her statements at the time of her separation. Conversely, the VA examiner's negative opinion was supported by a well-reasoned rationale that addressed the Veteran's assertions and the in-service injury, and cited to other in-service medical evidence. As the preponderance of the evidence is against a finding of a nexus, service connection for a right ankle disability on a direct basis is not warranted. 38 C.F.R. §§ 3.102, 3.303. The preponderance of the evidence weighs against a finding that the Veteran's right ankle disability is causally related to her service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Withdrawal A substantive appeal may be withdrawn on the record at a hearing. Acree v. O'Rourke, 891 F.3d 1009, 101314 (Fed. Cir. 2018). A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). 2. Entitlement to an initial compensable rating for a left shoulder cyst. In this case, at the July 2021 hearing the Veteran stated on the record that she wished to withdraw the issue of entitlement to an increased rating for a left shoulder cyst. The presiding VLJ acknowledged the withdraw and explained that by withdrawing the issue it would no longer be part of the appeal before the Board. The Veteran affirmatively stated that she understood the consequences of the withdrawal of that issue. Acree, 891 F.3d at 101314. As the Veteran has withdrawn her appeal of that issue prior to the issuance of a decision, the Board no longer has appellate jurisdiction and can take no further action on the issues of entitlement to an increased rating for a left shoulder cyst. Id.; see also DeLisio, 25 Vet. App. at 54. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability. During the Veteran's July 2021 hearing, she stated that she began receiving psychiatric treatment in approximately 2016, and indicated that she had continued seeing a private mental health care provider since. While the Veteran has submitted a few private treatment records, it does not appear that all of the records have been submitted, nor is there any evidence that VA has requested that the Veteran authorize the treatment records for release. As such, the Board finds that the appeal must be remanded so that the Veteran can be requested to either submit or authorize for release all private treatment records concerning her psychiatric disability. 38 C.F.R. § 3.159(c)(1). 2. Entitlement to service connection for IBS. As with the psychiatric disability discussed above, during the July 2021 hearing the Veteran reported that she receives private treatment for this disability. However, the Veteran has not been requested to either submit or authorize these records for release. As such, a remand is required so that the RO may make all necessary efforts to obtain any outstanding private treatment records. Id. In October 2015, VA obtained an opinion concerning the etiology of the claimed IBS. First, the examiner noted that there was no evidence of a current gastrointestinal disability. Second, the examiner continued on to opine that the claimed disability was less likely than not due to service, in part due to the fact that there were no private treatment records associated with the file showing treatment for the disability following service. As the opinion relies in part on the absence of contemporaneous records, it is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). Further, as noted above during her hearing the Veteran indicated that she does in fact receive private treatment, and therefore if those records are obtained it is possible a different opinion will be provided. As such, on remand a new examination and opinion should be obtained to determine the nature and etiology of the Veteran's claimed IBS. 3. Entitlement to service connection for a sleep disability. During her July 2021 testimony, the Veteran indicated that she was treated for her sleep impairment as part of her mental health treatment through a private provider. As discussed above, it does not appear that all of the Veteran's private mental health records have been associated with the file, nor that VA has attempted to obtain them. Therefore, a remand is required so that appropriate efforts may be made to obtain any outstanding private treatment records. 38 C.F.R. § 3.159(c)(1). Further, the Veteran stated that she had been diagnosed with sleep apnea and prescribed a CPAP machine through VA. However, the VA treatment records associated with the file only date up to November 2017, and contain no information concerning a sleep apnea diagnosis. As it appears that there may be outstanding relevant VA treatment records, the issue must be remanded so that attempts may be made to obtain those records. 38 C.F.R. § 3.159(c)(2). Finally, to date a VA examination concerning the Veteran's reported sleep disability has not been provided. However, during her July 2021 hearing testimony the Veteran reported that she was currently diagnosed with sleep apnea and had been prescribed a CPAP machine. She further stated that she experienced sleep disturbances in service and that these issues have persisted since. As such, the Board finds that a remand is warranted for an examination to determine the nature and etiology of any diagnosed sleep disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for CFS. VA obtained a Gulf War examination in February 2016. The examiner noted that the Veteran did not have any disabilities for which an etiology could not be established, and that the Veteran did not have any additional signs or symptoms that may represent an undiagnosed illness. However, the examiner then only proceeded to discuss the Veteran's reported knee pain and respiratory issues, and did not address the reports of fatigue or impaired sleep. Further, the Veteran's fatigue or sleep impairment was not noted to be a symptom of her diagnosed anxiety disorder by the October 2015 VA psychiatric examiner. As such, a remand is necessary for an opinion concerning the nature and etiology of the Veteran's reported fatigue and sleep impairment. 5. Entitlement to service connection for a low back disability. As discussed with respect to other disabilities above, during the July 2021 hearing the Veteran stated that she currently receives private treatment for her low back disability. While the Veteran has submitted a few private treatment records, it is not clear that these records represent the entirety of the available records and there is no evidence that the RO has attempted to obtain them. As such, a remand is necessary so that the RO may request that the Veteran either submit or authorize for release all outstanding private treatment records concerning her low back disability. 38 C.F.R. § 3.159(c)(1). VA obtained an opinion concerning the etiology of the low back disability in October 2015. The examiner stated that the disability was less likely than not related to the Veteran's period of service, stating in part that there were no private treatment records showing treatment for the disability following service. As the October 2015 opinion relies in part on the absence of contemporaneous records, it is inadequate. Dalton, 21 Vet. App. 23. As such, a remand is necessary for a new opinion concerning the etiology of the low back disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from November 2017 forward. 2. Contact the Veteran and request that she submit or authorize for release all private treatment records relevant to her claimed disabilities, to include from PT Pros and Baptist Health Medical Group. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed gastrointestinal disability. The examiner should answer the following: a) Are the Veteran's reports of diarrhea and bloating attributable to a diagnosis with a known etiology or pathophysiology? b) If so, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran's active service, to include exposure to environmental hazards? Attention is invited to the Veteran's July 2021 hearing testimony concerning gastrointestinal symptoms in service (labelled "Hearing Transcript" pgs. 18 to 20 uploaded 7/19/21) and a May 1990 service treatment record noting treatment for viral gastroenteritis (labelled "STR - Medical" pg. 32 uploaded 9/11/15). c) If not, is it at least as likely as not (a fifty percent probability or greater) that the reported diarrhea and bloating are manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed sleep disability. The examiner should answer the following: a) Are the Veteran's reports of sleep impairment and fatigue attributable to a diagnosis with a known etiology or pathophysiology? Attention is invited to the Veteran's July 2021 hearing transcript in which she asserted that she has been diagnosed with sleep apnea (labelled "Hearing Transcript" pgs. 12 to 13 uploaded 7/19/21). b) If so, is it at least as likely as not (a fifty percent probability or greater) that the disability, to include sleep apnea, is causally related to the Veteran's active service, to include exposure to environmental hazards? Attention is invited to the Veteran's July 2021 hearing testimony in which she asserted experiencing sleep impairment, snoring, and nighttime awakenings while deployed in Southwest Asia (labelled "Hearing Transcript" pgs. 13 to 13 uploaded 07/19/21) c) If not, is it at least as likely as not (a fifty percent probability or greater) that the reported sleep impairment and fatigue are manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Obtain a medical opinion concerning the etiology of the Veteran's low back disability. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the low back disability is causally related to the Veteran's active service? Attention is invited to service treatment records noting treatment for a low back strain in May 1990 (labelled "STR-Medical" pgs. 7 to 8 uploaded 8/20/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.