Citation Nr: 21072566 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-29 686 DATE: December 3, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to service-connected systemic lupus erythematosus (SLE), is granted. Entitlement to service connection for weight change, to include as secondary to service-connected SLE, is denied. Entitlement to service connection for sleep disturbances, to include as secondary to service-connected SLE, is denied. Entitlement to service connection for fatigue, to include as secondary to service-connected SLE, is denied. FINDINGS OF FACT 1. The Veteran's headache condition is proximately caused by his service connected SLE. 2. A distinct, separate disability entity manifested by weight change is not currently diagnosed. 3. Sleep disturbances are a symptom of the Veteran's service-connected adjustment disorder and depressed mood, and are compensated as part of that condition. 4. Fatigue is a symptom, not separately diagnosed disability, of the Veteran's service-connected and compensated mental health, kidney, and heart disabilities, as well as a residual of service connected SLE. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches secondary to SLE have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for weight change, secondary to SLE, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for sleep disturbances have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 4.88b, Diagnostic Code 6350. 4. The criteria for entitlement to service connection for fatigue have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 4.88b, Diagnostic Code 6350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1998 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and May 2016 rating decisions of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a February 2019 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for right knee arthritis, and for an undiagnosed multi-symptom Gulf War condition and multi-symptom condition secondary to SLE, were denied in the Board's October 2019 decision. The Board also remanded the issues of entitlement to service connection and separate ratings for associated residuals of SLE for additional development. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In October 2020, in a Joint Motion for Partial Remand (JMPR), the parties agreed that the Board, in denying service connection for right knee arthritis and service connection for undiagnosed multi-symptom Gulf War condition and/or a multi-symptom condition secondary to SLE, failed to comply with its duty to assist because the VA examinations were inadequate. The Court vacated that portion of the Board's October 2019 decision and remanded the issues for readjudication in compliance with the JMPR. During the pendency of the appeal, in a November 2020 rating decision, service connection for right knee degenerative arthritis was granted. This was a full grant of the benefit sought and this issue is no longer on appeal. The same rating decision granted service connection for right elbow tenosynovitis, left elbow tenosynovitis, right elbow limitation of pronation, right upper extremity carpal tunnel syndrome, left elbow limitation of pronation, carpal tunnel syndrome, left upper extremity, peripheral neuropathy of the left sciatic nerve, peripheral neuropathy of the right sciatic nerve, peripheral neuropathy of the left femoral nerve, peripheral neuropathy of the right femoral nerve, left wrist tenosynovitis, right wrist tenosynovitis, right knee instability, left knee instability, left knee strain tendonitis, right knee limitation of extension, urticaria, peripheral neuropathy of the left cutaneous nerve, and peripheral neuropathy of the right cutaneous nerve; each disability was found to be associated with the Veteran's service-connected SLE. In April 2021, the Board denied an initial evaluation in excess of 10 percent for SLE, prior to December 5, 2019; denied an initial evaluation in excess of 60 percent for SLE, since December 5, 2019; and remanded the remaining issues for VA examinations on "whether or not the Veteran's reported symptoms of skin changes, joint and muscle pain, weight change, sleep disturbances, fatigue, headaches, and paresthesias or neuropathy of the lower extremities are due to an undiagnosed multi-symptom Gulf War condition or a chronic multi-symptom illness, or are symptoms related to a currently diagnosed disability." The matter is now before the Board again for further appellate review. Because the November 2020 rating decision granted service connection for conditions related to skin changes, joint and muscle pain, and paresthesias or neuropathy of the lower extremities, there were full grants of the benefits sought and these issues are no longer on appeal. The remaining issues on appeal are whether entitlement to service connection for headaches, weight change, fatigue, and sleep disturbances are warranted. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms to include muscle and joint pain, and signs and symptoms involving the respiratory system. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War, or to a degree of 10 percent or more disabling not later than December 31, 2021; and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran asserts his complaints of headaches, weight change, fatigue, and sleep disturbances are secondary to his service connected SLE. VA treatment records indicate that since December 2019, Veteran's SLE worsened to include symptoms of intermittent itching, flaky skin rash on face and arms, generalized muscle aches, muscle weakness, and joint pain. Fatigue was reported as constant and prevented Veteran from being active and doing daily chores. In November 2020, the Veteran's VA medical records note a complaint of fatigue due to his sleep disturbances. There were no complaints of weight change during the period of this appeal. In May 2021, the Veteran was afforded VA examinations for sleep disturbances and mental disorder. The Veteran reported not having the mental health support that he desired. The Veteran reported being irritable and that he sometimes struggled to fall asleep due to his racing thoughts, resulting in 3-8 hours of sleep per night. He reported that cramps from dialysis also interfered with his sleep. Veteran reported that he had dialysis three times a week and each visit triggered his depression. Veteran reported being worried about not waking up if he went to sleep. The examiner noted feelings of worthlessness, loss of pleasure, irritability, appetite suppression, sleep dysregulation, and trouble concentrating. Veteran denied suicidal ideation. Veteran displayed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, memory loss for names of close relatives, own occupation, or own name, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Examiner noted that Veteran was responsive and alert, with unremarkable speech and coherent thought process. Examiner noted the Veteran appeared to be in a low mood. The examiner opined that the Veteran's sleep disturbances are subsumed under his diagnosis of major depressive disorder with anxious distress due to his medical conditions, which has remained consistent with his previous VA mental health examinations. The examiner opined that Veteran's sleep disturbances were a result of Veteran's mental health diagnosis as opposed to his diagnosis of SLE. In July 2021, the Veteran was afforded a VA examination for headaches. The Veteran reported that his headaches started after he started dialysis due to SLE in 2006. He reported constant head pain, pulsating or throbbing head pain, nausea, and sensitivity to light and sound. Veteran indicated that his headaches last one to two days, pain may occur anywhere on his head, and migraines occur less than once every two months. The Veteran reported that his headaches impair his ability to concentrate. The examiner explained that headaches are a very common symptom of SLE and offered a positive nexus opinion. The Veteran did not receive an evaluation of his weight change or fatigue (unrelated to sleep disturbances). The VA examiner reviewed Veteran's previous VA examinations. The examiner explained that SLE "is an autoimmune disease that may manifest in any organ system. It may cause rash, joint and/or muscle pain, neuropathy (such as carpal tunnel syndrome), fatigue, weight loss, etc. It is a disease that changes constantly, affecting different organ systems to different degrees at different times." The examiner opined that due to the nature and etiology of SLE, weight change and fatigue could be symptoms of SLE. The Board notes that SLE is rated under Diagnostic Code 6350. While the assigned evaluations for SLE, its complications, and its residuals are not at issue in the current appeal, the Note to the Code does have some bearing on the issue of service connection. SLE is rated either by combining evaluations for identified residuals, or by rating SLE as a whole based on the frequency and severity of exacerbations. Under this rule, separate service connection is targeted for residuals and secondary conditions, and not simply symptoms of SLE. 38 C.F.R. § 4.88b, Code 6350. The Veteran currently as a 60 percent rating for SLE as systemic disease, as well as evaluations for secondary conditions. Headaches The Veteran asserts that his headaches are secondary to his service connected SLE. Concerning the in-service event, injury or disease, the medical evidence does not show, and the Veteran does not contend, that his headaches had their onset or manifested in service. The Veteran has not argued, and the service treatment records do not reflect, treatment for or a diagnosis of headaches while in service. No in-service complaints of symptoms associated with headaches are of record. In July 2021, the Veteran reported that he experienced constant head pain, pulsating or throbbing head pain, nausea, and sensitivity to light and sound. Veteran indicated that his headaches last one to two days, pain may occur anywhere on his head, and migraines occur less than once every two months. The VA examiner explained that headaches are a very common symptom of SLE and concluded that Veteran's headaches are most likely due to SLE. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's headaches, as a free-standing secondary disability, are related to his service connected SLE. In this regard, the VA examiner concluded that Veteran's headaches were due to SLE. Based on the above evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence is in equipoise and the benefit of the doubt is given to the Veteran. Accordingly, secondary service connection for headaches is warranted. Weight Change The Veteran asserts that his weight change is secondary to his service connected SLE. Concerning the in-service event, injury or disease, the medical evidence does not show, and the Veteran does not contend, that his weight change had its onset or manifested in service. The Veteran has not argued, and the service treatment records do not reflect, treatment for or a diagnosis of weight change while in service. No in-service complaints of symptoms associated with weight change are of record. A current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed.Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). While medical diagnoses are not always necessary to establish a current disability for VA compensation purposes, there must be competent evidence indicating the Veteran's impairment affects his earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020). A veteran must "show that his manifestations are of sufficient severity, duration, and frequency that they effect his ability to function under the ordinary conditions of daily life." Id. at 17. VA treatment records do not contain complaints or diagnoses of weight change. The May and July 2021 VA examination reports did not show any weight change. The examiner did opine that weight change is a potential symptom of SLE, but noted that Veteran was not experiencing that symptom. VA treatment records reflect ongoing monitoring of vitals, including weight. Measurements fluctuated generally (in pounds) between the low 180s and upper 190s. When asked several times if there was concern over unintentional weight changes, the Veteran repeatedly stated no. No care provider expressed concern over weight changes. While the Veteran is competent to report his weight changes, he cannot identify such as a disability or disease under these circumstances. Simply put, there is no currently diagnosed disability reflected by "weight change." In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Further, to the extent weight changes may be a symptom of SLE, such is not a separate disability entity, and is considered part of the SLE and residuals already rated under Code 6305. A preponderance of the evidence is against the claim and the claim is denied on both a direct and secondary basis. Accordingly, service connection for weight change is not warranted. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for weight change, secondary to SLE, the doctrine is not applicable. 38 C.F.R. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Fatigue and Sleep Disturbances The Veteran asserts that his fatigue and sleep disturbances are secondary to his service-connected SLE, as free-standing manifestations. There is no dispute that the Veteran experiences symptoms of fatigue and sleep disturbances. The VA examination in May 2021 noted that the Veteran has sleep disturbances and has complaints of fatigue related to his sleep disturbances. The Veteran is also competent and credible in reporting such symptomatology. In May 2021, the Veteran was afforded VA examinations for sleep disturbances and mental disorders. The examiner opined that Veteran's sleep disturbances and fatigue are subsumed under his diagnosis of major depressive disorder with anxious distress due to his medical conditions. The examiner opined that Veteran's sleep disturbances and fatigue were symptoms of Veteran's mental health diagnosis and not due to SLE. As the Veteran's fatigue and sleep disturbances are symptoms and not separate disabilities, service connection is not warranted. In other words, the Veteran's connected mental health condition includes the element of sleep disturbances; this is given as an example of a symptom in the rating schedule. That symptom is subsumed, and not separately compensable as a distinct mental disorder. Further, the lack of quality sleep leads to fatigue. Moreover, the Board recognizes that fatigue also implies a physical tiring, and not simply sleepiness, with feelings of weakness. This generalized symptom is not a free standing condition. It is symptomatic of the SLE, as well as associated secondary heart, kidney, and mental disorders. No fatigue syndrome is diagnosed. As such, there is no outstanding service-connectable condition manifested as fatigue. The symptom is accounted for, repeatedly, in current service connection. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not applicable. 38 C.F.R. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.