Citation Nr: 21075591 Decision Date: 12/21/21 Archive Date: 12/20/21 DOCKET NO. 12-22 854 DATE: December 21, 2021 ORDER Service connection for rhinitis is granted. Service connection for chronic fatigue syndrome is denied. Service connection for cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran served in the Persian Gulf and had rhinitis within 10 years of his separation from active service. 2. The Veteran does not have a current diagnosis of chronic fatigue syndrome. 3. Cervical spine disability was not present in either of the Veteran's periods service or within one year thereafter, and is not otherwise etiologically related to the Veteran's service or to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to August 1988 and from September 1990 to June 1991. This case was most previously before the Board in February 2021. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). While the August 2021 Written Brief Presentation lists issues that are not on appeal, the Board finds that the representative's arguments address the issues on appeal. The Veteran has not been denied his right to representation and the due process rights have been fulfilled. No additional action in this regard is warranted. Laws and regulations Service connection may 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). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended its regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, sinusitis, to include rhinosinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. See 86 Fed. Reg. 42724-42733 (August 5, 2021). 1. Service connection for rhinitis. The Veteran has a current diagnosis of rhinitis, and the February 2021 Board decision determined that the Veteran's rhinitis did not preexist his active service. The Veteran served in the Persian Gulf, and private medical records indicate that his rhinitis manifested within 10 years of his separation from last period of active service. Under such circumstances, service connection for rhinitis is warranted on a presumptive basis. See 86 Fed. Reg. 42724-42733 (August 5, 2021). 2. Service connection for chronic fatigue syndrome. The Veteran has made consistent and credible complaints of having experienced fatigue. Although these symptoms of fatigue have been acknowledged by VA examiners, VA examiners, including in September 2010, December 2017, and May 2021, have specifically stated that the Veteran does not have a diagnosis of chronic fatigue syndrome. Additionally, the May 2021 VA examiner noted that the Veteran's fatigue is likely "due to his major depressive disorder, PTSD and alcohol abuse/dependence to include treatment." The May 2021 VA examiner further noted that there was "no evidence to support a relationship to exposures in SW Asia." In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Also, the Veteran's symptoms have been attributed to diagnosed disabilities. 38 C.F.R. § 3.317. Accordingly, service connection is not warranted. 3. Entitlement to service connection for cervical spine disability. The Veteran is diagnosed with cervical spine degenerative disc disease with degenerative arthritis. He asserts that his cervical spine disability is related to his service and service-connected low back disability. The Veteran's service treatment records (STRs) from his first period of service reveal that in April 1988 he was seen with a complaint of a stiff neck for one week. A neck injury was not noted and his neck was supple. There is no evidence of a neck injury or other occurrence of neck pain in the Veteran's remaining active duty treatment records. VA opinions concerning the cervical spine were obtained in December 2017 and October 2019. As noted by the February 2021 Board decision, these opinions were inadequate, and in May 2021 a new opinion was obtained. The May 2021 VA opinion noted that the Veteran had not been diagnosed with any cervical spine disorder in his March 1991 report of medical examination or on his October 1991 periodic examination and "did not submit any pertinent records from the next 18 years" showing any treatment for neck pain, injury or degenerative disease. The examiner observed that the findings of cervical spine arthritis 25 years after leaving active duty did not "suggest a pattern of disease related proximately to any active duty service injury or event." The examiner also stated that there was no evidence that the Veteran's cervical spine disease had been aggravated beyond natural progression by his thoracic and lumbar strain degenerative arthritis. The May 2021 VA examiner noted that the Veteran's mild degenerative disc disease of the cervical spine was an age-related condition. The examiner further noted that a review of the Veteran's cervical spine X-rays revealed a slowly progressing process likely due to repetitive wear and tear, with "no indication" in the Veteran's treatment records showing that his thoracic or lumbar spine has affected his cervical spine disorder. The Board finds that service connection for cervical spine disability is not warranted. First, there is a current diagnosis of cervical spine disability. Second, however, the STRs are negative for any cervical spine disability during either period of service. Thus, there are no findings of a chronic condition during service. Third, the Board finds that the evidence of record does not support a finding that the cervical spine disability is related to service. The Board finds that the May 2021 VA opinion is of great probative value. The opinion contains a comprehensive review of the Veteran's medical records and lay statements and offered a well-reasoned explanation for the opinions provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). The May 2021 VA examiner performed a physical examination of the Veteran and referenced multiple medical records in providing the opinions. In addition, the May 2021 VA examiner noted that the medical literature submitted by the Veteran had been reviewed. Likewise, the Board accords significant probative value to the May 2021 VA opinion that the cervical spine disability was not caused or aggravated by service-connected disability. The May 2021 VA examiner reviewed the relevant evidence and provided an explanation and rationale for the secondary service connection opinion, which was based in large part upon an analysis of the cervical spine X-rays over the years. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 302-04. The Veteran's assertions that his cervical spine disability is related to service or is secondary to his service-connected disabilities have been considered. But the Board finds that these etiological opinions are not capable of lay observation and are thus not competent. Degenerative changes involving orthopedic disorders are complex internal conditions, as opposed to a disorder that is capable of lay observation such as ringing in the ears or varicose veins. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Moreover, any such opinion is outweighed by the probative May 2021 VA opinion. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.