Citation Nr: 21072920 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-34 417 DATE: December 6, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for alcohol abuse disorder is denied. Service connection for anxiety disorder, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for gout, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a back disorder, to include degenerative arthritis, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a cervical spine disorder, to include cervical spondylosis and degenerative arthritis, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a sleep/fatigue disorder, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a respiratory disorder, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for headaches, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for muscle pains, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. A total disability rating based on unemployability due to a service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with PTSD or an alcohol abuse disorder. 2. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 3. The Veteran is currently diagnosed with anxiety disorder, gout, and degenerative arthritis of the back and neck, as well as cervical spondylosis. 4. The Veteran did not have an in-service injury, disease, or event involving anxiety, gout, back, or neck disorders. 5. Symptoms of arthritis of the back and neck were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 6. Anxiety, gout, back, and neck disorders did not have their onset during service and are not otherwise related to service, including as due to a qualifying chronic disability. 7. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a sleep, respiratory, headache, and/or muscle disorder. 8. A qualifying chronic disability manifested by sleep, respiratory, headache, and/or muscle/joint problems did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. 9. The Veteran does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for service connection for alcohol abuse disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The criteria for service connection for anxiety disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 4. The criteria for service connection for gout, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 5. A back disorder, to include degenerative arthritis, was not incurred in active service and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 6. A neck disorder, to include degenerative arthritis and cervical spondylosis, was not incurred in active service and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 7. The criteria for service connection for a sleep/fatigue disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 8. The criteria for service connection for a respiratory disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 9. The criteria for service connection for a headache disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 10. The criteria for service connection for a muscle disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 11. The criteria for TDIU have not been met as a matter of law. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1981 to September 1985, from September 1990 to October 1990, and from April 2003 to March 2004. In correspondence received by VA in September 2021, the Veteran withdrew the request for a Board videoconference hearing. The hearing request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(d). 1. Service Connection for PTSD 2. Service Connection for Alcohol Abuse Disorder Service connection may be granted for disability arising 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 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran contends generally that he has PTSD and alcohol abuse disorder that it is related to service. See April 2014 claim. Having reviewed all the evidence of record, lay and medical, the Board finds that the Veteran does not have a current diagnosis of PTSD and/or an alcohol abuse disorder. The April 2015 examiner specifically opined that the Veteran did not have PTSD and/or an alcohol abuse disorder. Rather, the April 2015 VA examiner diagnosed anxiety disorder (for which service connection is denied herein). In addition, the April 2015 VA examination report reflects the Veteran reported that he had not used alcohol in over thirty years and that he was not currently using alcohol. Accordingly, the weight of the evidence is against finding that the Veteran is currently diagnosed with PTSD or an alcohol abuse disorder; therefore, the appeals for service connection for these issues must be denied. 3. Service Connection for Anxiety Disorder 4. Service Connection for Gout 5. Service Connection for Back Disorder 6. Service Connection for Neck Disorder 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, 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). Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The service personnel records reflect that the Veteran served in Southwest Asia during the Persian Gulf War; therefore, he is a "Persian Gulf veteran" as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). The Veteran essentially contends developing anxiety, gout, back, and neck disorders due to service, to include service in the Persian Gulf. See April 2014 claim. Initially, the Board finds that the Veteran is currently diagnosed with anxiety disorder, gout, degenerative arthritis of the back and neck, and cervical spondylosis. Specifically, the reports from the April 2015 VA examinations reflect that the Veteran has been diagnosed with anxiety disorder, gout, degenerative arthritis of the back and neck, and cervical spondylosis. Various private treatment records also reflect currently diagnosed anxiety disorder and gout. See December 2012 private treatment records. At the outset, the Board has considered whether service connection is warranted for anxiety disorder, gout, or the back and neck disorders under the Persian Gulf War presumptions. See 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board finds that anxiety disorder, gout, degenerative arthritis of the back and neck, and cervical spondylosis are not an undiagnosed illness, as the disabilities do, in fact, carry a diagnosis. For anxiety disorder, gout, and the back and neck disorders to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause. Only if such symptoms are not related to a diagnosed disability, i.e., irritability not due to anxiety disorder, may they be found to be due to an undiagnosed illness. As such, anxiety disorder, gout, and the back and neck disorders are not undiagnosed illnesses or medically unexplained chronic multi symptom illnesses. As the disabilities have been diagnosed, the provisions pertaining to undiagnosed illnesses are not applicable. See U.S.C. §1117; 38 C.F.R. § 3.317. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding an anxiety, gout, back, or neck injury or disease during service, and/or chronic in-service symptoms of a back or neck disorder. The Board notes that the service treatment records appear complete, and contain no complaints, findings, symptoms, diagnosis, or treatment related to anxiety, gout, back, or neck disorders. The July 1988, August 1988, October 1989, and May 1998 service examination reports reflect the Veteran was clinically evaluated as normal. The July 1988 and May 1998 reports of medical history each also reflect the Veteran denied recurrent back pain, swollen or painful joints, foot trouble, depression or excess worry, frequent trouble sleeping, nervous trouble of any sort, and loss of memory or amnesia. The October 1987 and May 1998 reports of medical history each reflect the Veteran reported hay fever but did not similarly report any psychiatric, gout, neck, or back disorder. Had the Veteran experienced psychiatric, gout, neck, or back disorder symptoms, he would have similarly reported these in service either to seek treatment or when such history was specifically elicited from him on the medical history questionnaire. Similarly, the service treatment records, which are complete, reflect that the Veteran was treated for other symptoms and disorders during service, of which he did complain and seek treatment, though he did not report any such related problems or symptoms regarding the neck or back, as well as symptoms regarding a psychiatric disorder or gout. Such in-service complaints reported or for which the Veteran knew how to, and did, seek treatment include an in-grown toenail, a requested second rhinoplasty, a sore throat, body aches, and weight management. As such, the complete service treatment records in this case, which were generated contemporaneous to service, are likely to accurately reflect the Veteran's physical condition. The service treatment records in this case are of significant probative value because the Veteran was treated on multiple occasions for the complaints or disorders listed above, so would similarly have reflected any complaints or treatment for psychiatric, gout, back, and neck disorders had such occurred during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). The weight of the evidence shows that symptoms of the back and neck disorders were also not continuous after service separation and did not manifest to a compensable degree within one year of separation from service to be compensated under the chronicity presumption (38 C.F.R. § 3.307(a)(3)). The earliest post-service evidence of back and neck disorders appears in the April 2015 VA examination report, which shows an arthritis diagnosis approximately 11 years after separation from service. Regarding the theory of direct service connection, the Board finds that psychiatric, gout, back, and neck disorders are not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which the disorders could be related. As analyzed above, the weight of the evidence shows no anxiety, gout, back, or neck symptoms during service. In addition, the April 2015 VA examiner opined that the diagnosed anxiety, gout, back and neck disorders were unrelated to service. Insomuch as the Veteran asserts that the anxiety, gout, back, and neck disorders are directly related to service, the Board finds that, under the specific facts of this case that include post-service onset and no in-service psychiatric, gout, back, or neck injury or disease, the Veteran is not competent to relate the currently diagnosed anxiety disorder, gout, and arthritis to active service, including an undiagnosed illness. While the Veteran is competent to describe symptoms he experiences at any time, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation of a complex medical condition such as anxiety disorder, gout, and arthritis and their relationship to active service, which requires specialized medical knowledge and knowledge of various possible etiologies of anxiety, gout, and arthritis, especially in the context of this case where there is no in-service injury or in-service symptoms. See Kahana at 438 (holding that ACL injury is "medically complex" for lay diagnosis); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for anxiety disorder, gout, and back and neck disorders, including as due to a qualifying chronic disability to include undiagnosed illness; consequently, the claims must be denied. 7. Service Connection for Sleep/Fatigue Disorder 8. Service Connection for Respiratory Disorder 9. Service Connection for Headache Disorder 10. Service Connection for Muscle Disorder The contention liberally construed for the Veteran is that the claimed sleep, respiratory, headache, and muscle disorders are related to active service, specifically service in the Persian Gulf. The April 2014 claim reflects the Veteran wrote that fatigue, respiratory, headache, and muscle disorders are related to service in the Persian Gulf. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence shows that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, disabilities of sleep/fatigue, respiratory, headache and/or muscle disorder, including objective indications of a fatigue, respiratory, headache and or muscle/joint disorder. The April 2015 VA examination report reflects that the VA examiner noted the Veteran's contentions and opined that a diagnosis for sleep/fatigue, respiratory, headache and muscle disorders could not be established, to include no objective findings of muscle/joint dysfunction. See April 2015 VA examination report. The Board finds the April 2015 VA medical opinion to be highly probative with respect to these service connection issues, as it is based on objective findings as shown by the record as well as lay histories, and review of medical records. The lay statements in this case, under specific facts of this case that include no in-service injury or diagnosis or other findings of sleep, respiratory, headache and muscle disorders to the extent they assert the etiology of claimed disorders, are not competent to establish current diagnosis and the nexus required for service connection. Although the Veteran is competent to report subjective symptoms such as sleeping trouble, headaches, and muscle aches, the other competent evidence outweighs the Veteran's statements as to whether a current disability exists. The April 2015 VA examiner, who has medical expertise and training, specifically considered the service treatment records, the VA and private treatment records, and lay statements and lay reports of symptoms, and opined that the Veteran did not have a sleep, respiratory, headache, or a muscle disorder; therefore, the April 2015 VA medical opinion is of significant probative value. In the absence of a current disability, service connection is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board also finds that presumptive service connection is not warranted under the Persian Gulf War presumption. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The evidence shows that a qualifying chronic disability manifested by sleep/fatigue, respiratory, headache and/or muscle problems did not manifest during service in Southwest Asia, including no objective manifestations, or to a compensable degree for any six-month period since service. The weight of the evidence, including VA and private treatment records and the April 2015 VA examination report, do not reflect objective indications of a chronic disability, including an undiagnosed illness. On the question of whether the reported sleep/fatigue symptoms manifested to a compensable degree, chronic fatigue appears among the rating criteria under Diagnostic Code 6354. A 10 percent rating is assigned for signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms are controlled by continuous medication. Using these rating criteria analogously, the evidence shows no objective findings, including rating objective criteria for the 38 C.F.R. § 3.317 presumption, including to 10 percent. Objective findings are necessary to the assignment of a compensable (10 percent) rating by analogy to Diagnostic Code 6354, and objective indicators are required to meet the Persian Gulf presumptive criteria. For these reasons, the Board finds that the Veteran does not have a compensable qualifying chronic disability resulting in chronic fatigue. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. On the question of whether the reported respiratory symptoms manifested to a compensable degree, a respiratory disorder appears among the rating criteria under Diagnostic Code 6602, 38 C.F.R. § 4.97. Bronchial asthma is rated (analogously), in part, based upon the results of pulmonary function tests (PFTs), specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC). 38 C.F.R. §§ 4.96, 4.97. A 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or FEV 1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. Using these rating criteria by analogy, as the evidence shows no objective findings, including no findings to 10 percent, the presumptive service connection criteria are not met. On the question of whether the reported headaches symptoms manifested to a compensable degree, headaches appear among the rating criteria under Diagnostic Code 8100, 38 C.F.R. § 4.124a. A 10 percent rating is warranted for headaches that are characteristic of prostrating attacks averaging one in two months over the last several months. Using these rating criteria by analogy, as the evidence shows no objective findings, and does not show headaches analogous to headaches contemplated by a 10 percent rating, the presumptive service connection criteria are not met. On the question of whether the reported joint/muscle symptoms manifested to a compensable degree, muscle/joint problems appear among the rating criteria under Diagnostic Code 5025, Fibromyalgia. 38 C.F.R. § 4.71a. A 10 percent rating is warranted for fibromyalgia/fibrositis that requires continuous medication for control. Based on these rating criteria, as the evidence shows no objective findings, including evidence analogous to 10 percent requirements, the presumptive service connection criteria are not met. For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for sleep, respiratory, headache, and muscle disorders, and the claims must be denied. 11. TDIU A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The instant decision denies service connection on all issues. The Veteran in this case has no other service-connected disabilities. As there are no service-connected disabilities, as a matter of law, there is no legal basis for a claim for TDIU. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.16, 4.25. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.