Citation Nr: 21072991 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-38 428 DATE: December 7, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include diarrhea, to include as due to Persian Gulf service is dismissed. Entitlement to service connection for a disability manifested by vomiting, to include as due to Persian Gulf service is dismissed. Entitlement to service connection for a disability manifested by sweating, to include as due to Persian Gulf service is denied. Entitlement to service connection for a sleep disability, to include as due to Persian Gulf service is denied. FINDINGS OF FACT 1. A September 2021 rating decision issued by the agency of original jurisdiction (AOJ) granted entitlement to service connection for a gastrointestinal disability, to include vomiting and diarrhea. 2. The Veteran's disability manifested by sweating is a symptom of his service-connected unspecified anxiety disorder, a diagnosable disease, and is not due to an undiagnosed illness, nor is it due to service. The Veteran's disability manifested by sweating has been attributed to other known clinical diagnoses and is not a distinct disability. 3. The Veteran's sleep disorder is due to sleep apnea, a diagnosable disease, and is not due to an undiagnosed illness, nor is it due to service. CONCLUSIONS OF LAW 1. The Board of Veterans' Appeals (Board) lacks jurisdiction over the claim of entitlement to service connection for a gastrointestinal disability, to include vomiting and diarrhea, because those claims have been granted and rendered moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 2. The criteria for entitlement to service connection for a disability manifested by sweating, to include as due to an undiagnosed illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.317, 4.14. 3. The criteria for service connection for a sleep disability, to include as due to an undiagnosed illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to July 1991. These matters are before the Board on appeal from a February 2013 rating decision. The Board remanded these matters for further evidentiary development in May 2020. The case has returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, VA is precluded from granting service connection and awarding a separate evaluation for symptoms of a service-connected disability when such symptoms are already contemplated by an existing evaluation. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that in addition to the regulations pertaining to service connection, there are additional regulations in place for Persian Gulf War veterans. Service connection may also 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 more not later than December 31, 2026, 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). In claims based on qualifying chronic disability, 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). Notably, laypersons are competent to report objective signs of illness. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom 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). The term 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 are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "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 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). In this case, the Veteran's military personnel records show that he served in the southwest Asia Theater of operations during the Persian Gulf War from December 1990 to May 1991; therefore, the Veteran is a "Persian Gulf veteran" as defined by 38 C.F.R. § 3.317. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a gastrointestinal disability, to include diarrhea, to include as due to Persian Gulf service 2. Entitlement to service connection for a disability manifested by vomiting, to include as due to Persian Gulf service The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Here, as a result of the AOJ's action to grant these claims, there no longer remains a case or controversy with respect to these claims. See September 2021 rating decision (granting service connection for gastroesophageal reflux disease (GERD) claimed as gastrointestinal disability to include vomiting and diarrhea). Therefore, the Board lacks jurisdiction over these issues because they have been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissals of the claims are warranted. 3. Entitlement to service connection for a disability manifested by sweating, to include as due to Persian Gulf service As an initial matter, the Veteran's claimed disability manifested by sweating has been associated with his service-connected unspecified anxiety disorder as a symptom. See October 2012 Gulf War General Medical Examination and April 2021 VA examination. Because the Veteran's disability manifested by sweating has been attributed to known clinical diagnoses and etiologies, his disability does not constitute a "qualifying chronic disability" under 38 C.F.R. § 3.317 and is, therefore, not eligible for presumptive service connection based on Gulf War service. As such, the Board must consider if service connection may be granted on a direct or secondary basis. Turning to the record, the Veteran's service treatment records (STRs) are absent complaints of symptoms associated with this disability. At the May 1991 separation examination, the Veteran noted that he was in good health and not taking any medication. At the October 2012 Gulf War VA examination, the Veteran reported sweating symptoms associated with his chronic sinus problems and times of emotional distress. At the October 2012 posttraumatic stress disorder (PTSD) examination, the Veteran reported a pattern of anxious reactivity that includes an autonomic arousal signal symptom of sweating. As previously mentioned, the Board remanded this matter in May 2020 to afford the Veteran a VA examination addressing whether the Veteran's sweating might be indicative of a separate, distinct disability due to undiagnosed illness, medically unexplained chronic multi-symptom illness, or other environmental exposures during confirmed Southwest Asia service. The April 2021 VA examiner provided a negative nexus opinion with the rationale that the Veteran's sweating is clearly a symptom of his anxiety disability and the Veteran reports the connection himself. The examiner further provided that sweating due to environmental factors or temperature and humidity is not indicative of a chronic condition. The Veteran reported sweating profusely and unexpectedly for no apparent reason other than that he was eventually able to relate this to being in crowds or other anxiety-provoking situations. The Board notes that there is no evidence to the contrary. The evidence further fails to demonstrate that the Veteran has a present disability for purposes of direct service connection. The Veteran's disability manifested as sweating has been attributed, in part, to his service-connected unspecified anxiety disorder. The Veteran has already been awarded a compensable rating for this disorder. Insofar as the Veteran's sweating is caused by his unspecified anxiety disorder, such functional impairment is already contemplated by the assigned ratings and a separate rating would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Accordingly, the Board finds that the Veteran does not have a present disability that is eligible for service connection on a direct or secondary basis. In the absence of present disability or a qualifying chronic disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a disability manifested by sweating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for a sleep disability, to include as due to Persian Gulf service As an initial matter, the Veteran's claimed sleep disability has been attributed to sleep apnea, a known clinical diagnosis. See November 2012 private Sleep Disorder Study and May 2021 Sleep Apnea disability benefits questionnaire (DBQ). Accordingly, the Veteran's current sleep disability is not subject to presumptive service connection as a Gulf War hazard. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. As such, the Board must consider if service connection may be granted on a direct or secondary basis. Turning to the record, treatment records show that the Veteran was diagnosed with sleep apnea in 2012, approximately 21 years after his separation from service. See November 2012 Sleep Disorder Study. His sleep apnea disability was confirmed by the May 2021 VA examination. Thus, a current disability has been established. Concerning an in-service event and nexus, the Veteran has asserted that his sleep disability is due to environmental hazards during his deployment as he returned was insomnia and he self-medicated with alcohol to fall asleep at night. He further asserted that he also self-medicated with drugs, he is clean now but continues to have difficulty sleeping. See November 2011 Veteran's Correspondence. The Veteran's STRs are absent complaints of symptoms associated with this disability. At the May 1991 separation examination, the Veteran noted that he was in good health and not taking any medication. The Veteran also submitted lay statements from family members who described his behaviors while sleeping, particularly snoring loudly, and that he did not have these symptoms prior to his military service. See February 2020 Buddy/Lay Statements. Thus, there are lay statements discussing an indication of an in-service occurrence. However, service connection cannot be granted because the nexus element of service connection has not been met. The Veteran was afforded VA examinations in October 2012 and May 2021. At the October 2012 Gulf War General Medical VA examination, the Veteran reported chronic difficulty sleeping and admitted to using alcohol to help him sleep. The Veteran reported that both his father and a paternal uncle were diagnosed with narcolepsy. The Veteran further reported that he had been told that he stops breathing during his sleep and snores loudly. The October 2012 PTSD examination and March 2020, November 2020, and April 2021 Mental Disorders examinations indicate chronic sleep impairment as a psychiatric symptom. As previously mentioned, the Board remanded this matter in May 2020 to afford the Veteran a VA examination addressing whether his documented sleep apnea is secondary to his service-connected psychiatric disorder. The Veteran was afforded an April 2021 Mental Disorders VA examination. The April 2021 examiner opined that it is less likely than not that the Veteran's sleep apnea is due to environmental exposure or attributed to the Veteran's service-connected psychiatric disorder. The examiner remarked that the Veteran does not have a sleep disability other than sleep apnea as there is no diagnosis because the Veteran's sleep issues are due to his anxiety and medical issues; he also used alcohol in the past to sleep, which has negatively impacted him. The examiner further provided that the Veteran only meets criteria for obstructive sleep apnea, which is a disorder where a person pauses in breathing or periods of shallow breathing during sleep and is characterized by the interruption in breathing by the blockage of air flow as a result of a collapse in the soft tissue walls of the throat. The examiner provided that the risk factors for obstructive sleep apnea include obesity, family history, allergies, enlarged tonsils, GERD, deviated septum. The Board notes that the Veteran was afforded an April 2021 VA examination for his GERD, the examiner noted that the Veteran does not have sleep disturbance caused by esophageal reflux. Thus, there is no indication that this disability is secondary to the Veteran's service-connected GERD. At a May 2021 Sleep Apnea VA examination, the examiner provided a negative nexus direct opinion with the rationale that the Veteran's sleep apnea appears to be related to his obesity and his inherited sleep disorder from his father. The examiner further provided that the Veteran's sleep problems could have been worsened over time by his excessive alcohol use. The examiner also provided a negative nexus secondary opinion with the rationale that the conditions of sleep apnea and environmental exposures, anxiety, and unspecified psychiatric disorder are not medically related. The examiner further provided that a thorough review of medical literature failed to demonstrate a causal relationship and a nexus has not been established. The Board notes that there is no opinion to the contrary. (Continued on the next page) There is no evidence that the May 2021 examiner is not competent and credible, thus the Board finds that this opinion is entitled to significant probative weight with respect to whether or not a nexus is established between the Veteran's current sleep apnea and his service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran and his family members have stated that they believe his sleep disability is due to service, they are not competent to opine as to a nexus, as this is a complex medication determination, and the record does not establish that neither the Veteran nor the family members who provided lay statements have the medical expertise to make such a determination. Jandreau, 492 F.3d 1372. As the preponderance of the evidence is against the finding of a nexus, direct service connection for sleep apnea or secondary to a service-connected psychiatric disorder, must be denied. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 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. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.