Citation Nr: 21008986 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-14 829 DATE: February 18, 2021 ORDER Service connection for a cervical condition is denied. Service connection for a left knee condition is denied. Service connection for a right knee condition is denied. Service connection for heavy metal poisoning due in the Gulf War, to include renal involvement, is denied. REMANDED The claim for service connection for diabetes mellitus, type II, is remanded. The claim for an undiagnosed Gulf War illness to include fibromyalgia, myofascial pain syndrome, and chronic fatigue syndrome is remanded. The claim for service connection for an upper mid and low back condition is remanded. FINDINGS OF FACT 1. The Veteran did not have symptomatology of a cervical condition in service and the evidence of record does not demonstrate his current diagnosis of a neck disability is related to his military service. 2. The objective medical evidence of record does not support a diagnosis of a current left knee disability. 3. The objective medical evidence of record does not support a diagnosis of a current right knee disability. 4. The objective medical evidence of record does not support heavy metal poisoning due to Gulf War, to include renal involvement. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131; 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131; 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131; 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for heavy metal poisoning due to Gulf War, to include renal involvement, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1990 to September 1992. The Veteran and his representative testified at a hearing before the undersigned Veterans Law Judge in February 2020, at the Houston, Texas, Regional Office (RO). A transcript of the hearing is of record. In July 2020, the Veteran’s representative filed a VA Form 10182 in an effort to move several of the issues addressed in this decision into the jurisdiction of the Appeals Modernization act. However, the form was not received within a year of a relevant rating decision or within 60 days of a statement of the case (SOC) or supplemental statement of the case. As such, this document has no legal effect, and the appeals remains in the legacy system. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 1. Service connection for a cervical condition 2. Service connection for a left knee condition 3. Service connection for a right knee condition The Veteran claims that his cervical condition, left knee condition, and right knee condition were related to his military service. The Veteran’s service treatment records show no complaints of, treatment for, injuries to, or diagnosis of disabilities of the neck, or knees. The post-service treatment records confirm the Veteran has been diagnosed with and treated for cervical pain. According to Methodist Sugar Land Hospital December 2010 treatment records, it was noted that the Veteran was in his “usual state of health until 2 years ago when he developed progressively worsening neck pain…” Furthermore, the VA treatment records indicate the Veteran was treated for bilateral knee arthralgia. However, despite the treatment for pain, there is no clear diagnosis of a bilateral knee disability. The imaging studies of record did not reveal radiographic abnormalities of the bilateral knees. In March 2004, the Veteran completed a health survey indicating that his general health was very good. He stated that he was not limited at all in moderate activities such as moving a table, pushing a vacuum cleaner, bowling, or playing golf. The Veteran stated that he was able to engage in all recreation activities without neck pain. In January 2000, the Veteran saw a chiropractor Dr. Bergenson with complaints of general back pain, but there is no mention of any neck problems. However, the earliest indication of complaints for neck pain was in 2008, more than 15 years after separating from service. At a Persian Gulf registry examination in 1993, the Veteran’s neck was supple, and there were no back, knee or neck complaints. Furthermore, the earliest indication of the Veteran’s bilateral knee pain was also in 2008. In 2010, a chiropractor wrote that the Veteran had been receiving physical therapy for more than 10 years, a few times a month to increase range of motion in his cervical spine and lumbar spine. However, this too would place the onset of neck problems years after service. VA treatment records from 1993 and 1994 are available, but make no mention of the Veteran’s neck or knees. In 1995, x-rays of the back showed a normal lumbar spine. X-rays of the knees in 2008 were normal as well. In 1995, it was noted that the Veteran had experienced a history of lower back pain since the surgery in September 1993, and was now experiencing muscle spasms and headaches. The objective medical evidence of record, however, does not support of a positive nexus between his cervical spine disability and his military service. There is also no indication the Veteran has been diagnosed with a bilateral knee disability. Therefore, after weighing all the evidence, the Board finds that the entirety of the medical evidence weighs against the conclusion that the Veteran’s cervical disability either began during or was otherwise caused by his active service. Here, the record does not contain evidence of a cervical condition during the Veteran’s military service nor of any diagnosis of a cervical condition within one year of separation from the service. Thus, the evidence fails to establish service connection for the Veteran’s cervical conditions. Furthermore, other than bilateral knee arthralgia, the record does not show any current diagnosis of a bilateral knee disability. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, despite reports of bilateral knee pain, no diagnosis of the bilateral knees has been diagnosed. Finally, the Board is cognizant of the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim, nor do his medical records show, that he experiences any functional impairment due to any bilateral knee pain. As such, Saunders is not applicable with respect to this claim. The Board notes the only evidence of record in support of the Veteran’s claims consists of his own lay statements. The Board acknowledges the Veteran’s belief that his military service caused him to have a cervical and bilateral knee disabilities. To this end, he is considered competent to report the observable manifestations of his claimed disabilities. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). His assertions that he experiences symptoms are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, given the complexity of the particular question of etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the presence or etiology of his claimed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). In sum, the criteria for service connection have not been met for a cervical condition, a left knee condition, and a right knee condition. That is, the evidence does not show that these disabilities were diagnosed in service or within a year of service, and the weight of the evidence is against a finding that a cervical condition existed continuously since service. Furthermore, service connection for the left and right knee conditions are not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis of a disability. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1992) 3 Vet. App. at 225. Accordingly, the claims are denied. 4. Service connection for heavy metal poisoning due to Gulf War, to include renal involvement The Veteran testified at the February 2020 Board hearing that various conditions were the result of heavy metal poisoning due to the Gulf War. The Veteran and his representative stated that the Veteran’s irritable bowel syndrome (IBS), lung conditions, PPD reactions, chronic fatigue syndrome, sleep apnea, and allergic rhinitis/sinusitis were as a result of environmental hazards during his military service. The Veteran’s representative clarified that heavy metal poisoning was the cause of these disabilities, not the disability itself. Here, the Veteran’s claims for an increased disability rating for IBS and service connection for lung conditions, PPD reactions, sleep apnea, and allergic rhinitis/sinusitis are not before the Board for adjudication. The Board also notes that following the initial February 2013 rating decision, the regional office characterized this claim as a renal dysfunction disability. As such, the Board will adjudicate this claim as heavy metal poisoning due to Gulf War, to include renal involvement. However, as discussed in the remand, the Board will take up the issue of chronic fatigue syndrome. The Veteran’s military personnel records confirm he was deployed to Saudi Arabia and Kuwait. However, the service treatment records are absent of any complaints or treatment for heavy metal poisoning, to include renal conditions. Service treatment records do confirm exposure to oil fires and burn pits. However, service connection would require a current disability to be linked to such exposure. The post-service treatment records are also absent of any complaints, treatment, or diagnosis of a renal condition. The Veteran and his representative also did not indicate the presence of a current renal condition. Here, according the objective medical evidence of record, there is no treatment or complaints of a renal condition to include heavy metal poisoning. In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for heavy metal poisoning due to the Gulf War, to include renal involvement. Here, the Board finds there is a lack of evidence supporting a renal disability during the Veteran’s military service and post-service. The Veteran also did not indicate the presence of a current renal disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Service connection for diabetes mellitus, type II is remanded. The Veteran claimed that his diabetes mellitus, type II, is the result of his military service. The Veteran testified at the February 2020 Board hearing that he experienced symptoms of diabetes while he was in service. The Veteran stated that his symptoms included drinking a lot of water, had dry mouth, blurry vision, and was told he was borderline diabetic. He stated that he sought treatment and told he had diabetes within a year of separation from service from a private primary doctor. The Veteran’s service treatment records are absent of any complaints, treatment, or diagnosis of diabetes mellitus, type II, to include drinking a lot of water, dry mouth, blurry vision, and no indication he was borderline diabetic. The claims file is also absent of private treatment records within a few years of separation. However, according to a September 2003 private treatment record from Dr. N. Charafeddine, increased urinary frequency was indicated and was noted by the doctor, “I wonder if the [Veteran] has diabetes.” Furthermore, the Veteran underwent a VA examination for diabetes mellitus in September 2012. While an opinion regarding the secondary theory of entitlement was provided, an opinion regarding direct service connection has not. Given the Veteran’s statements that he was diagnosed with diabetes within a year of service by a private doctor, the September 2003 private treatment record indicating possible diabetes due to urinary frequency, the lack of an opinion regarding direct service connection, and the absence of private treatment records, the Board finds additional development is necessary. Back condition The Veteran is seeking service connection for an upper, mid, and low back condition which he believes was related to his military service. The Veteran testified that he was treated for a back disability within a year of separation from service and that he had experienced back problems since. The Veteran’s service treatment records show no complaints of, treatment for, injuries to, or diagnosis of disabilities of the back. The post-service treatment records confirm the Veteran has been diagnosed with and treated for low back pain. Specifically, according to treatment records from Dr. T.Q. Huynh the Veteran reported pain in the low back, but denied back injuries. The Veteran was diagnosed with lumbosacral spondylosis without myelopathy, lumbar disc displacement/herniation, spinal stenosis of the lumbar region, and sciatica. In January 2000, the Veteran saw a chiropractor Dr. Bergenson with complaints of general back pain. In March 2004, the Veteran completed a health survey indicating that his general health was very good. He stated that he was not limited at all in moderate activities such as moving a table, pushing a vacuum cleaner, bowling, or playing golf. The Veteran stated that he was able to engage in all recreation activities without neck pain. The Veteran stated that his back pain would come and go and was moderate in nature. He stated that he could lift heavy weights, but it caused extra pain. At a Persian Gulf registry examination in 1993, there were no back complaints noted. In 2010, a chiropractor wrote that the Veteran had been receiving physical therapy for more than 10 years, a few times a month to increase range of motion in his cervical spine and lumbar spine. However, this too would place the onset of back problems years after service. The Veteran testified at a Board hearing in 2020 that he had received injections in his back at VA within a year of separation, but such is not borne out by the evidence of record. Of note, at a VA intestinal examination in November 1993, the Veteran complained bitterly about a headache and lower back pain, but it was noted that these complaints were related to subdural anesthesia. No back examination was conducted. As such, while the Veteran may have remembered getting injections in his back area, the evidence of record appears to suggest that the injections were an epidural anesthesia in conjunction with a circumcision, and not to treat a specific back disability. VA treatment records from 1993 and 1994 are available, but make no mention of the Veteran’s back. In 1995, x-rays of the back showed a normal lumbar spine. In 1995, it was noted that the Veteran had experienced a history of lower back pain since the surgery in September 1993, and was now experiencing muscle spasms and headaches. In a February 2020 opinion, Dr. Rivero wrote that the Veteran’s back complained started immediately upon being discharged from the Marine Corps, including lower back pain, that was initially treated with injections. However, it is unclear whether Dr. Rivero is referring to the epidural, which was administered in conjunction with a circumcision, or to shots that were first administered a number of years after the Veteran’s service. Gulf War Illness It is noted that the Veteran was denied service connection in a February 2013 rating decision for a number of conditions he related to his Persian Gulf region service, including heavy metal poisoning, allergic rhinitis, sinusitis, and chronic fatigue syndrome (also claimed as body wide pain; tender points in joint, muscles, tendons and soft tissue; profuse sweating). In the Veteran’s notice of disagreement, the Veteran wrote that he was appealing heavy metal poisoning dur to Gulf War and chronic fatigue syndrome. However, in the statement of the case (SOC) which was issued, the Agency of Original Jurisdiction (AOJ) omitted the reference to the chronic fatigue syndrome. As such, the Board believes that an SOC must be issued. Of note, in February 2020, Dr. Rivero wrote a medical opinion suggesting that the Veteran might have fibromyalgia, chronic fatigue syndrome, and myofascial pain syndrome. See “Third Party Correspondence” p. 13, received February 10, 2020. This opinion should be considered by the SOC, and any appropriate development conducted. The matters are REMANDED for the following action: 1. Obtain a medical opinion to address the etiology of the Veteran’s diabetes mellitus, type II. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The VA examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or greater) that the diabetes mellitus, type II, either began during or was otherwise caused by his military service? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the diabetes mellitus, type II, was caused by a service-connected disability (IBS), or medication prescribed to treat a service connected disability? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the diabetes mellitus, type II, was aggravated (made worse) by a service- connected disability (IBS) or medication prescribed to treat a service connected disability? Why or why not? If aggravation is found, the examiner should attempt to establish a baseline level of disability prior to the aggravation occurring. The VA examiner is asked to consider and address the September 2012 VA examination, the service treatment records, any relevant post-service treatment records, and the Veteran’s lay statements regarding symptomatology. 2. Schedule an examination to address the etiology of the Veteran’s back disability. The examiner should answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began in or was otherwise caused by the Veteran’s active military service ? Why or why not? In so doing, the examiner should review the records showing the onset of back pain in 1993 after receiving a spinal epidural in conjunction with a circumcision. 3. Conduct any required development with regard to the Veteran’s Gulf War claims and then issue a statement of the case regarding the issue of service connection for an undiagnosed Gulf War illness to include fibromyalgia, myofascial pain syndrome, and chronic fatigue syndrome MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.