Citation Nr: 21068644 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-50 412A DATE: November 12, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a bilateral hip condition is reopened; to this extent only, the claim is granted. Entitlement to service connection for fibromyalgia, also claimed as generalized joint pain, is denied. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for restless leg syndrome, right leg, is denied. Entitlement to service connection for restless leg syndrome, left leg, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hearing loss right ear is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for a bilateral hip condition was originally denied in an August 2006 rating decision by the RO. The Veteran appealed this decision to the Board, and the claim was eventually denied by the Board in a March 2012 decision. 2. Evidence received after the March 2012 denial relates to unestablished facts necessary to substantiate those claims of service connection. 3. The Veteran had service in the Southwest Asia Theater of operations during the Gulf War. 4. There is no evidence that the Veteran has ever been diagnosed with or treated for fibromyalgia; and the preponderance of the evidence indicates that his claimed generalized joint pains are less likely than not related to service, including as due to exposure in Southwest Asia. 5. There is no evidence that the Veteran has ever been diagnosed with or treated for CFS; and the preponderance of the evidence indicates that his claimed generalized joint pains are less likely than not related to service, including as due to exposure in Southwest Asia. 6. The preponderance of the evidence is against concluding that the Veteran has had a diagnosis for the restless leg syndrome of the right leg during the period on appeal or that said condition is related to active service. 7. The preponderance of the evidence is against concluding that the Veteran has had a diagnosis for the restless leg syndrome of the left leg during the period on appeal or that said condition is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral hip condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for fibromyalgia, also claimed as generalized joint pain, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for entitlement to service connection for restless leg syndrome, right leg, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for entitlement to service connection for restless leg syndrome, left leg, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1989 to July 1993, including service in Southwest Asia. See August 2006 DD Form 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and November 2018 rating decision of a VA Regional Office (RO). In the Veteran's October 2017 and May 2020 Form 9s for the issues on appeal, the Veteran requested a hearing before a Veterans Law Judge. In February 2021 correspondence, the Veteran's representative stated that there was no need for a hearing, and they withdrew the Veteran's request. Accordingly, the Board will proceed with adjudication. The Veteran's claim for service connection for a bilateral hip condition was originally denied in an August 2006 rating decision by the RO. The Veteran appealed this decision to the Board, and the claim was eventually denied by the Board in a March 2012 decision. Evidence received since this final decision includes new arguments by the Veteran. This evidence is new to the record, as it suggests relationships to service or to a service-connected disability; relates to unestablished facts necessary to substantiate those claims for service connection; and raises a reasonable possibility of substantiating the claims. The claim is thus reopened. 38 C.F.R. § 3.156(a). SERVICE CONNECTION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). To establish service connection, the evidence generally must show: (1) the existence of 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (organic diseases of the nervous system, to include sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. These include arthritis. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, special service connection rules exist for Gulf War Veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran had active service in the Southwest Asia theater of operations during the first Gulf War, shown by his DD Form 2014. Accordingly, the provisions of 38 C.F.R. § 3.317 are applicable to the claims on appeal. Under that section, service connection may be warranted for a Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). 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 multi-symptom illness; 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. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, 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). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 1. Entitlement to service connection for fibromyalgia, also claimed as generalized joint pain The Veteran asserts that he experiences fibromyalgia that arose during or as a result of his active service, including as due to exposure during deployment in Southwest Asia. His DD Form 214 reflects service in Southwest Asia. His service treatment records (STRs) are negative for complaints, treatment, or diagnosis for fibromyalgia. They do reflect complaints of knee pain. See, e.g., September 1989 STR. The Veteran's VA and private treatment records are negative for treatment, complaints, or diagnosis for fibromyalgia in the 12-month period immediately following separation from active service. There is no documented treatment or diagnosis for fibromyalgia. In February 2014, the Veteran filed a claim for generalized joint pain, due to Gulf War exposure. In an April 2014 statement by the physician who performed the Veteran's right hip replacement, the physician opined that the Veteran's multiple joint pains and fatigue were most likely caused by exposure to foreign materials during his deployment in the Gulf War. The physician did not provide a rationale for his opinion. Accordingly, the Board only lends the opinion some probative weight. During the Veteran's July 2014 VA examination for Gulf War conditions and fibromyalgia, the VA examiner found that there was no evidence of fibromyalgia for the claimed joint pains. They also opined that the Veteran's joint pains were due to degenerative joint disease (DJD) of the knees, back, left shoulder, and left hand, along with avascular necrosis of the hips. These were diagnosable conditions with specific etiologies and were less likely than not related to Gulf exposure. The medical literature did not support an association or direct causal link between Gulf exposure and any of those conditions. The Veteran has consistently asserted that his generalized joint pain and fatigue are due to his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against finding that the Veteran experiences fibromyalgia that arose during or as a result of his active service, including as due to exposure during deployment in Southwest Asia. First, the Veteran has no documented diagnosis or treatment for fibromyalgia. Second, his STRs are also negative for the claimed condition. While the April 2014 physician's statement supports the Veteran's claim that his joint pains are due to his exposure in Southwest Asia, the physician did not provide a diagnosis for fibromyalgia or a rationale for their opinion. Conversely, the July 2014 VA examination report includes a detailed rationale and explicitly notes the lack of a diagnosis or treatment for fibromyalgia. Accordingly, the Board gives the July 2014 VA examination report greater probative weight. Based on these facts, the Board finds the preponderance of the evidence is against finding that the Veteran has had a diagnosis for fibromyalgia at any point during the period on appeal. Accordingly, the claim for service connection for fibromyalgia is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for chronic fatigue syndrome (CFS) The Veteran asserts that he experiences CFS that arose during or as a result of his active service, including as due to exposure during deployment in Southwest Asia. His DD Form 214 reflects service in Southwest Asia. His STRs are negative for complaints, treatment, or diagnosis for CFS or chronic fatigue. They do reflect complaints of knee pain. See, e.g., September 1989 STR. The Veteran's VA and private treatment records are negative for treatment, complaints, or diagnosis for CFS in the 12-month period immediately following separation from active service. There is no documented treatment or diagnosis for CFS. In February 2014, the Veteran filed a claim for chronic multi-system illness, including fatigue, muscle pain, and irritability. In an April 2014 statement by the physician who performed the Veteran's right hip replacement, the physician opined that the Veteran's multiple joint pains and fatigue were most likely caused by exposure to foreign materials during his deployment in the Gulf War. The physician did not provide a rationale for his opinion. Accordingly, the Board only lends the opinion some probative weight. During the Veteran's July 2014 VA examination for Gulf War conditions and CFS, the VA examiner found that he was negative for a diagnosis for CFS. The Veteran reported noting fatigue about 10 years prior. He felt tired by the end of the day, experienced sleep problems, and only slept an average of 6 hours per night. The examiner also opined that the Veteran's joint pains were due to degenerative joint disease (DJD) of the knees, back, left shoulder, and left hand, along with avascular necrosis of the hips. These were diagnosable conditions with specific etiologies and were less likely than not related to Gulf exposure. The medical literature did not support an association or direct causal link between Gulf exposure and any of the Veteran's claimed conditions. The Veteran has consistently asserted that his generalized joint pain and fatigue are due to his active service. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, supra. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against finding that the Veteran experiences CFS that arose during or as a result of his active service, including as due to exposure during deployment in Southwest Asia. First, the Veteran has no documented diagnosis or treatment for CFS. Second, his STRs are also negative for the claimed condition. While the April 2014 physician's statement supports the Veteran's claim that his joint pains and fatigue are due to his exposure in Southwest Asia, the physician did not provide a diagnosis for CFS or a rationale for their opinion. Conversely, the July 2014 VA examination report includes a detailed rationale and explicitly notes the lack of a diagnosis or treatment for CFS. Accordingly, the Board gives the July 2014 VA examination report greater probative weight. Additionally, the Veteran has been treated for obstructive sleep apnea for several years, which may cause or contribute to his chronic fatigue. See June 2017 VA treatment records. Based on these facts, the Board finds that the preponderance of the evidence is against finding that the Veteran has had a diagnosis for CFS at any point during the period on appeal. Accordingly, the claim for service connection for CFS is denied. Again, as the preponderance of the evidence is against the Veteran's claim, VA's benefit-of-the-doubt doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for restless leg syndrome, right leg, and restless leg syndrome, left leg, The Veteran asserts that he experiences restless leg syndrome (RLS) in both lower extremities, and the condition arose during or as a result of his active service. The Veteran's STRs are negative for complaints, treatment, or diagnosis of RLS. The Veteran's VA and private treatment records are negative for diagnosis or treatment of RLS. The Veteran filed a claim for restless leg syndrome in September 2018. In a May 2021 Appellate Brief, the Veteran's representative asserted that his claimed conditions were due to active service, including as secondary to his claimed hip disability. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, supra. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim. The Veteran's STRs are negative for RLS. His VA treatment records are negative for a diagnosis or treatment for the condition. While the Veteran may competently report leg symptoms, he lacks the training to formally diagnose those symptoms as attributable to RLS. The Board also notes that he filed a claim for service connection approximately 25 years after leaving active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability, while not decisive in and of itself, may be considered as evidence against a claim of entitlement to service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no medical documentation of the claimed disability. Also, the Veteran has not claimed that his RLS has been chronic since active service. The Board does note that the Veteran has not been afforded a VA examination for this claim. However, as there is no evidence of treatment or diagnosis for the claimed condition during or after service, other than the Veteran's lay statement, the Board does not find that a VA examination is required in this case. Generally, VA is required to provide an examination when the evidence of record indicates that a current disorder "may be associated" with a Veteran's military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). This evidentiary requirement is a low threshold, but it is not met in this case. There is no competent evidence that the Veteran has restless leg syndrome and no evidence that such a condition is linked to service, other than the Veteran's lay statements. Based on these facts, the Board finds the preponderance of the evidence is against concluding that the Veteran has had a diagnosis for the claimed condition during the period on appeal or that said condition is related to active service. Accordingly, the claim for service connection for RLS of both legs is denied. Again, as the preponderance of the evidence is against the Veteran's claim, VA's benefit-of-the-doubt doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that he experiences sleep apnea that arose during or as a result of his active service. The Veteran's STRs are negative for complaints, treatment, or diagnosis of sleep problems or conditions. The Veteran's VA treatment records are negative for complaints or treatment for sleep apnea in the 12-month period immediately following separation from active service. They first reflect treatment for sleep apnea in June 2017 and are negative for medical opinions supporting the Veteran's claim. The Veteran has asserted that he has experienced sleep problems during and after active service. See, e.g., May 2021 Appellate Brief and November 2019 statement in support of claim for PTSD. The Veteran has yet to be afforded a VA examination in connection with this claim. Generally, VA is required to provide an examination when the evidence of record indicates that a current disorder "may be associated" with a Veteran's military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). This evidentiary requirement is a low threshold. Such evidence exists, and the Board finds that a VA examination and medical opinion are warranted to determine if the Veteran's current sleep apnea is related to service. Accordingly, this claim must be remanded for additional development. 2. Entitlement to service connection for hearing loss right ear is remanded. The Veteran asserts that his right ear hearing loss arose during or as a result of their active service. The Board notes that the Veteran is already service connected for left-ear hearing loss and tinnitus. See November 2018 codesheet. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) cited with approval a medical text that states that the threshold for normal hearing is zero decibels to 20 decibels, and higher threshold levels indicate some degree of hearing loss. HERTZ Oct. 1988 500 1000 2000 3000 4000 RIGHT 10 5 0 5 5 In this case, the Veteran's service treatment records (STR) contain two audiometric test results. His October 1988 entrance examination reflects the following scores: His May 1993 pre-discharge medical examination reflects the following scores: HERTZ May 1993 500 1000 2000 3000 4000 RIGHT 15 15 5 10 10 The Veteran filed a claim for service connection for hearing loss in February 2014. His VA treatment records are negative for evidence of hearing loss complaints, treatment, or diagnosis in the 12-month period immediately following discharge from service or for any medical opinions supporting the Veteran's claim. During the Veteran's July 2014 VA examination for hearing loss, the Veteran's audiometric test results for the right ear did not meet the criteria to be considered a disability for VA purposes under 38 C.F.R. § 3.385. HERTZ July 2014 500 1000 2000 3000 4000 RIGHT 25 25 20 20 25 His Maryland CNC speech discrimination score was 94 percent in the right ear. The VA examiner found the right ear hearing loss was less likely than not related to active service. Their rationale was based on the Veteran's hearing being within normal limits at entrance and discharge from active service, with no significant threshold shifts. In a July 2014 Notice of Disagreement (NOD) statement, the Veteran asserted that he experienced speech discrimination problems and understanding instructions at work, and his hearing loss was due to active service. In a May 2021 appellate brief, the Veteran's representative asserted that the Veteran's hearing loss had worsened significantly, and an updated examination was required. The Board agrees and finds that the Veteran must be afforded a new VA examination to assess the current severity of his right ear hearing loss and to provide a new etiology opinion. 3. Entitlement to service connection for a bilateral hip condition is remanded. The Veteran asserts that his bilateral hip condition began during or as a result of his active service. The Board finds that remand is necessary under Hickson v. Shinseki, 23 Vet. App. 394 (2010). The RO has not considered this claim on its merits yet. The October 2017 Statement of the Case lists this issue as a service connection claim; however, the analysis for the issue in the Statement of the Case echoes the July 2014 rating decision's conclusion that no new and material evidence was submitted by the Veteran. As the Board is reopening this claim, it must be remanded for adjudication on the merits in the first instance by the RO. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. In a May 2021 Appellate Brief, the Veteran's representative asserted that his psychiatric condition had been chronic since service and may be related to his claimed hip disability. Accordingly, a claim for secondary service connection has been raised, and the claim for service connection for an acquired psychiatric disorder is inextricably intertwined with the claim for service connection for a hip disorder, and this claim must be remanded as well. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for sleep apnea, by an appropriate examiner, to determine the nature and etiology of any diagnosed obstructive sleep apnea. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is related to an in-service injury, event, or disease. In reaching any conclusion, the examiner is asked to consider and address the Veteran's lay statements concerning the etiology of his sleep apnea. The opinion must be predicated on more than just the findings (or lack thereof) from service treatment records. All opinions must be supported by a detailed rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. Schedule the Veteran for a VA examination with an appropriate clinician to obtain an etiology opinion to address his claimed right ear hearing loss. The examiner must review the claims file and all pertinent evidence, including the Veteran's lay assertions, and answer whether it is at least as likely as not (a 50 percent or greater probability) that any right ear hearing loss had its onset during or was caused by service. The examiner is instructed to identify pure tone audiometric thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz, and the resultant average. A Maryland CNC Test must be administered. The examination report must include discussion of the Veteran's lay statements. If the examiner discounts those statements, an explanation must be provided. All opinions must be supported by a rationale. The Board is aware of the difficulties of scheduling a VA examination in view of the current COVID-19 epidemic. If an examination is not feasible, the requested opinion should still be rendered based upon a claims file review. 3. Adjudicate on the merits the issue of service connection for a bilateral hip condition, to include consideration as to whether any additional development is necessary prior to adjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.