Citation Nr: 21076626 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-42 414 DATE: December 27, 2021 ORDER Service connection for a right shoulder disorder, to include rotator cuff tendonitis, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a left shoulder disorder, to include rotator cuff tendonitis and osteoarthritis, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a lung disorder, to include restrictive lung disease, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for a headache disorder, to include tension headaches, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for chronic fatigue, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for memory problems, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. Service connection for joint pains, including as due to a qualifying chronic disability to include undiagnosed illness, is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral shoulder rotator cuff tendonitis, left shoulder osteoarthritis, mild restrictive lung disease, and tension headaches. 2. The Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War. 3. The Veteran did not have an injury or disease involving the shoulders or lungs, or manifesting as headaches, during service. 4. Symptoms of arthritis of the left shoulder 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 5. The currently diagnosed bilateral shoulder, lung, and headache disorders were not incurred in service and are not etiologically related to service, including as due to a qualifying chronic disability. 6. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a chronic fatigue, memory, or joint disorder. 7. Cognitive symptoms are part of the diagnosed depressive disorder. 8. Joint pain is part of the diagnosed bilateral shoulder, bilateral hip, bilateral knee, and bilateral ankle disorders. 9. A qualifying chronic disability manifested by fatigue did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder, to include rotator cuff tendonitis, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. 2. A left shoulder disorder, to include arthritis and rotator cuff tendonitis, was not incurred in active service and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317, 3.326. 3. The criteria for service connection for a lung disorder, to include restrictive lung disease, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. 4. The criteria for service connection for a headache disorder, to include tension headaches, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. 5. The criteria for service connection for chronic fatigue, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. 6. The criteria for service connection for memory problems, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. 7. The criteria for service connection for a joint pain disorder, including as due to a qualifying chronic disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1982 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This case was previously before the Board in April 2019, where the Board remanded the issues on appeal for additional development. The evidence reflects that adequate development was undertaken. As such, an additional remand to comply with the previous remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service Connection for a Right Shoulder Disorder is Denied. 2. Service Connection for a Left Shoulder Disorder is Denied. 3. Service Connection for a Lung Disorder is Denied. 4. Service Connection for a Headache Disorder is Denied. 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. 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 more, 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). 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). 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 to the issue of service connection for a left shoulder disorder. 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 Veteran contends developing various disorders after his return from the Gulf War in 1991. The Veteran has reported that during the Gulf War he was exposed to smoke from burning oil wells, and was required to take several doses of pyridostigmine bromide for protection from possible nerve gas attacks. Initially, the Board finds that the Veteran is currently diagnosed with bilateral shoulder rotator cuff tendonitis, left shoulder arthritis, restrictive lung disease, and tension headaches. Specifically, the reports from the March 2020 VA examinations reflect that the Veteran has been diagnosed with bilateral shoulder rotator cuff tendonitis, left shoulder arthritis, restrictive lung disease, and tension headaches. At the outset, the Board has considered whether service connection is warranted for the shoulder, lung, and/or headache disorders under the Persian Gulf War presumptions. See 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The Board finds that bilateral shoulder rotator cuff tendonitis, left shoulder arthritis, restrictive lung disease, and tension headaches are not undiagnosed illnesses, as the disabilities do, in fact, carry a diagnosis. Only if such symptoms are not related to a diagnosed disability, i.e., joint pain not due to a bilateral shoulder disorder, may they be found to be due to an undiagnosed illness. As such, the bilateral shoulder, lung, and headache 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 a shoulder, lung, or headache-related injury or disease during service, and/or chronic in-service symptoms of a left shoulder disorder. The Board notes that the service treatment records appear complete, and contain no complaints, findings, symptoms, diagnosis, or treatment related to a shoulder disorder, a headache disorder, and/or lung disease. The June 1991 service examination report reflects that the Veteran was clinically evaluated as normal. The June 1991 report of medical history reflects that the Veteran denied a painful or "trick" shoulder, arthritis, and/or swollen or painful joints. The June 1991 report of medical history also reflects that the Veteran reported hay fever, but did not similarly report any shoulder, lung, or headache disorders. Had the Veteran experienced shoulder, lung, or headache 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. In addition, and as discussed below, the March 2020 VA examiner opined that instances of bronchitis and pneumonia in May 1990, October 1983, and March 1983 were related to the Veteran's history of smoking. 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 shoulders or lung. While the service treatment records reflect treatment for non-chronic symptoms of headaches in July 1991, the service examiner specifically attributed the headaches to a virial infection. As the Veteran sought treatment for headaches related to a viral infection during service, in the context of the specific facts of this case, it is highly likely he would also have sought treatment for any other orthopedic or lung injury, as well as any headache pain. In-service complaints reported for which the Veteran knew how to, and did, seek treatment include knee pain, a cough, an upset stomach, and a head laceration. 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 shoulder, lung, or headache 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 shoulder disorder 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 the shoulder disorder appears in March 2012 private treatment records, which show an arthritis diagnosis approximately 21-years after separation from service. Regarding the theory of direct service connection, the Board finds that the bilateral shoulder, lung, and headache disorders are not related to an in-service injury or disease because the significant weight of the evidence demonstrates no in-service injury or disease or even an event to which the disorders could be related. As analyzed above, the significant weight of the evidence shows no shoulder, lung, or headache disease symptoms during service. In addition, the March 2020 VA examiner opined that the shoulder disorders, lung disease, and tension headaches were unrelated to service. The March 2020 VA examiner reasoned that instances of bronchitis and pneumonia in May 1990, October 1983, and March 1983 were related to smoking, as the Veteran had a "strong smoking history" where "episodes of bronchitis or pneumonia are to be expected." The March 2020 VA examiner also reasoned that while a 1991 post service appendectomy was complicated by an infection resulting in a pulmonary embolism to the left lung, the disorder had subsequently resolved without residuals. As to the bilateral shoulders, the March 2020 VA examiner reasoned that the shoulder disorders were first diagnosed post-service in 2012 and were likely due to mechanical overuse related to post-service employment with United Parcel Service (UPS). The Board finds that the March 2020 VA examiner's opinions are highly probative as such opinions are based on a review of the record and are supported by adequate rationale. Insomuch as the Veteran asserts that the shoulder, lung, and headache 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 shoulder, lung, or headache injury or disease, the Veteran is not competent to relate the currently diagnosed rotator cuff tendonitis, left shoulder arthritis, lung disease, and tension headaches 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 arthritis, lung disease, and/or tension headaches and their relationship to active service, which requires specialized medical knowledge and knowledge of various possible etiologies of arthritis, lung disease, and tension headaches, 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 majority of the lay and medical evidence that is of record significantly weighs against service connection for bilateral shoulder, lung, and headache disorders, including as due to a qualifying chronic disability to include undiagnosed illness; consequently, the claims must be denied. The evidence significantly weighs against all the theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service Connection for Fatigue Disorder is Denied. 6. Service Connection for Memory Loss Disorder is Denied. 7. Service Connection for Joint Pain Disorder is Denied. The contention liberally construed for the Veteran is that the claimed fatigue, cognitive, and joint pain disorders are related to active service, specifically service in the Persian Gulf. Initially, the Veteran's claimed memory loss symptoms have been attributed to a clinically diagnosed disability, specifically a psychiatric disorder. Accordingly, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not for application as to the issue of service connection for a memory loss disorder. See 38 C.F.R. § 3.317(a)(1); see March 2020 VA examination report. In addition, the claimed joint pain symptoms have been attributed to various orthopedic disorders, to include bilateral shoulder, bilateral hip, bilateral knee, and bilateral ankle disorders, and are not related to a chronic multi-symptom illness. See March 2020 VA examination report. Accordingly, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not for application as to the issues of service connection for memory loss and joint disorders. After a review of the evidence, both lay and medical, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a fatigue, cognitive, or joint disorder, including objective indications of a fatigue, muscle/joint, and/or cognitive disorder. The March 2020 VA examination reports reflect that the VA examiner noted the Veteran's contentions and opined that a diagnosis for fatigue, cognitive, and joint disorders could not be established, to include no objective findings of muscle/joint and/or cognitive dysfunction. In addition, the evidence of record reflects that the memory issues reported by the Veteran are symptoms attributable to the non-service-connected physiatric disorder, and that the joint pain issues reported by the Veteran are symptoms attributable to the non-service-connected bilateral shoulder, bilateral hip, bilateral knee, and bilateral ankle disorders. See March 2020 VA examination report. The Board finds the March 2020 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, a thorough review of the evidence of record, both lay and medical. The lay statements in this case, under the specific facts of this case that include no in-service injury or diagnosis or other findings of fatigue, cognitive, and/or joint disorders, to the extent they assert the etiology of said 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 fatigue and joint pain, the other competent evidence significantly outweighs the Veteran's statements as to whether a disability exists. The March 2020 VA examiner, who has medical expertise and training, specifically considered the service treatment records, the VA and private treatment records, and lay statements, and opined that the Veteran did not have a fatigue disorder, a cognitive disorder, or joint disorder; therefore, the March 2020 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 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 fatigue 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 March 2020 VA examination report, do not reflect objective indications of a chronic disability, including an undiagnosed illness. On the question of whether the reported fatigue manifested to a compensable degree, fatigue problems appear among the rating criteria under Diagnostic Code 6354, Chronic Fatigue Syndrome. 38 C.F.R. § 4.88b. A 10 percent rating is warranted for symptoms which wax and wane but result in periods of incapacitation of at least one, but less than two, weeks total duration per year, or symptoms controlled by continuous medication. Based on these rating criteria, the evidence shows no objective findings that fatigue manifested to a compensable degree. "Objective findings" are necessary to the assignment of a compensable (10 percent) rating by analogy to Diagnostic Code 6354. 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. For these reasons, the Board finds that the significant weight of the lay and medical evidence is against the claims for service connection for fatigue, cognitive, and/or joint pain disorders, and the claims must be denied. The evidence significantly weighs against all the theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. E. BLOWERS Acting 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.