Citation Nr: 21009044 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-31 413A DATE: February 18, 2021 ORDER Entitlement to service connection for gout to include as a result of Persian Gulf War service is denied. Entitlement to service connection for hypertension to include as a result of Persian Gulf War service is denied. Entitlement to service connection for gastrointestinal esophageal reflex disease (GERD) to include as a result of Persian Gulf War service is denied. Entitlement to service connection for headaches to include as a result of Persian Gulf War service is denied. Entitlement to service connection for arthritis of the upper and lower extremities to include as a result of Persian Gulf War service is denied. Entitlement to service connection for skin disability to include as a result of Persian Gulf War service is denied. REMANDED Entitlement to service connection for respiratory disability, including sinusitis, allergic rhinitis, and pneumonia to include as a result of Persian Gulf War service is remanded. Entitlement to service connection for chronic fatigue syndrome to include as a result of Persian Gulf War service is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to an initial rating in excess of 40 percent for service-connected chronic joint pain is remanded. FINDINGS OF FACT 1. The Veteran does not have any undiagnosed illnesses related to his service-connection claims. 2. The Veteran does not have a diagnosis of gout. 3. The Veteran does not have a diagnosis of hypertension that is etiologically related to service or a service-connected disorder. 4. The Veteran does not have a diagnosis of GERD that is etiologically related to service or a service-connected disorder. 5. The Veteran does not have a diagnosis of headaches that is etiologically related to service or a service-connected disorder. 6. The Veteran does not have a diagnosis of arthritis. 7. [The Veteran does not have a diagnosis of a skin disorder that is etiologically related to service or a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gout to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to service connection for hypertension to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for entitlement to service connection for gastrointestinal esophageal reflex disease (GERD) to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for entitlement to service connection for headaches to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for entitlement to service connection for arthritis of the upper and lower extremities to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 6. The criteria for entitlement to service connection for skin disability to include as a result of Persian Gulf War service have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1982 to May 1986 and from April 1987 to May 1992. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Although the Veteran is claiming service connection for hypertension and arthritis, which are chronic diseases, they neither manifested within one year of service nor is there continuity of symptomatology. Therefore, service connection cannot be grated on this basis. Service connection can also be established for diseases secondary to exposure in the Gulf War, to include in situations not herein pertinent, for undiagnosed illnesses that meet the appropriate criteria. 38 U.S.C. § 1117. Specifically, regulations provide that VA will pay compensation for Persian Gulf veterans who later manifest certain qualifying chronic disabilities. 38 C.F.R. § 3.317 (a). To obtain service connection for a qualifying chronic disability, the evidence must show: (1) that the Veteran is a Persian Gulf veteran; (2) who exhibits objective indications of a qualifying chronic disability; (3) that manifests either during active duty in the Southwest Asia theater, or to a degree of 10 percent or more prior to December 31, 2021; and (4) that cannot be attributed to any known clinical diagnosis by history, examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1). A Persian Gulf veteran is a Veteran who served on active duty in the Southwest Asia Theater of operation during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia Theater of operation refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). Neurological symptoms are one example of a "medically unexplained chronic multi symptom illness" that VA regulations regard as a qualifying chronic disability. 38 C.F.R. § 3.317 (a)(2)(i)(B)(1). The Veteran has qualifying service in the Southwest Asia theater of operations from January 1991 to May 1991 and February 1992 to May 1992 during the Persian Gulf War pursuant to 38 C.F.R. § 3.317 (e). The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease or are a qualifying chronic disability. 1. Entitlement to service connection for gout to include as a result of Persian Gulf War service A review of the service and post-service VA treatment records does not show a diagnosis of, or treatment for gout. In the November 2010 VA examination, the examiner noted “questionable gout.” The Veteran stated that he has blood that “contaminated with mad-cow disease and cannot give blood.” The Veteran was afforded a VA examination in February 2017. The examiner reviewed the file and reported there is no credible evidence of a diagnosis of gout. The examiner noted that the Veteran described occasional soreness in the right great toe over the medial nail bed, which is more suggestive of an ingrown toenail than gout. There was no history of acute episodes of swollen, painful, red joints in the feet or other joints. The examiner found that his uric acid level was normal at 6.6 mg/dl. Therefore, the examiner opined that it is less likely than not that the Veteran has gout or that gout is caused by environmental exposures during the Gulf War. As there is no evidence of a diagnosis of gout, the Board finds the Veteran does not have a disability for service connection. Without a disability, service connection cannot be granted. Therefore, the Veteran’s claim is denied. 2. Entitlement to service connection for hypertension to include as a result of Persian Gulf War service In a November 2010 VA examination, the examiner noted that hypertension was diagnosed approximately 15 years prior. The Veteran was afforded a VA examination in February 2017. The Veteran reported he was diagnosed with hypertension in 1995, three years following discharge from service. The examiner stated that that his hypertension is a diagnosable disease with a clear and specific etiology and it less likely than not related to any environmental exposures during the Gulf War. The examiner reported the disorder is common in the general population and is familial in many cases. There is no clear scientific data to link hypertension to environmental exposures. Upon review of the record, the Board finds that although the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it is etiologically related to service or a service-connected disorder. First, service connection cannot be granted for an undiagnosed illness, as hypertension is a diagnosed illness. Second, service connection is not warranted on a direct basis as the preponderance of the evidence is against finding an etiology between his hypertension and service. GERD was first diagnosed in 1995, three years after discharge from service. There is no evidence of elevated blood pressure readings, complaints, diagnosis, or treatment for hypertension in service. Additionally, the examiner specifically noted that hypertension is common and often familial. The Board is cognizant of the Veteran’s lay statements and finds him competent to provide evidence of observable symptoms. However, the etiology of his hypertension disorder requires expert knowledge and therefore, the Board finds the opinion of the VA examiner to be more probative in that regard. Therefore, the Veteran’s claim is denied. 3. Entitlement to service connection for gastrointestinal esophageal reflex disease (GERD) to include as a result of Persian Gulf War service VA treatment records showed a history of gastroesophageal reflux disease. The Veteran underwent a VA examination in February 2017. The examiner noted a history of an umbilical hernia repair in 1998, after discharge from service and therefore, it is less likely than not that the umbilical hernia relates to environmental exposure during the Gulf War. The examiner noted a diagnosis of GERD in 2004. The examiner opined that “GERD is a common illness in the general population, and [there is] no evidence that your GERD relates to any environmental exposures during the Gulf War. There is no clear scientific evidence to relate this disorder to these exposures.” The examiner also opined that there is no evidence that the Veteran’s PTSD or chronic joint pain has aggravated or caused his GERD and that GERD is a diagnosable disorder with a known etiology. Upon review of the record, the Board finds that although the Veteran has a diagnosis of GERD, the preponderance of the evidence is against finding that it is etiologically related to service or a service-connected disorder. First, service connection cannot be granted for an undiagnosed illness, as GERD is a diagnosed illness. Second, service connection is not warranted on a direct basis as the preponderance of the evidence is against finding an etiology between his current headaches and service. GERD was first diagnosed in 2004, many years after discharge from service. Additionally, the examiner specifically noted that GERD was not caused or aggravated by the Veteran’s service connected disorder. The Board is cognizant of the Veteran’s lay statements and finds him competent to provide evidence of observable symptoms. However, the etiology of his GERD disorder requires expert knowledge and therefore, the Board finds the opinion of the VA examiner to be more probative in that regard. Therefore, the Veteran’s claim is denied. 4. Entitlement to service connection for headaches to include as a result of Persian Gulf War service The Veteran’s service treatment records show no evidence of complaints, diagnosis, or treatment for headaches. The Veteran underwent a VA examination in November 2010. The Veteran reported headaches that began in the 1980s. Tension headaches were diagnosed but the VA examiner offered no opinion on etiology. At the VA examination in February 2017, the Veteran reported that his headaches began in 1983 or 1984. The examiner opined that his headaches are less likely than not due to service as there is no evidence of a headache disorder in service or for many years thereafter. The examiner also stated that this is not an undiagnosed illness, but a diagnosable illness but the etiology is only partially understood. It is a disorder with a clear and specific diagnosis and in some, but not all, cases can be tied to a specific etiology. The examiner concluded that the subjective complaints of patchy subjective sensory loss suggest lumbar radiculopathy, which is not service connected. Upon review of the evidence, the Board finds that service connection is not warranted. First, service connection cannot be granted for an undiagnosed illness, as headaches are a diagnosed illness. Second, service connection is not warranted on a direct basis as the preponderance of the evidence is against finding an etiology between his current headaches and service. Although the Veteran reported headaches in service, the contemporaneous treatment records do not reflect complaints of headaches at the time and there is not record of complaints or treatment for headaches until many years after service. The Board is cognizant of the Veteran’s lay statements and finds him competent to provide evidence of observable symptoms. However, the etiology of a headache disorder requires expert knowledge and therefore, the Board finds the opinion of the VA examiner to be more probative in that regard. Therefore, the Veteran’s claim is denied. 5. Entitlement to service connection for arthritis of the upper and lower extremities to include as a result of Persian Gulf War service The Veteran is service-connected for chronic joint pain (claimed as fingertips, pain and numbness). Review of the cited VA treatment records does not show a diagnosis of, or treatment for arthritis in the upper or lower extremities. In the February 2017 VA examination, the examiner noted that the Veteran is prescribed a topic cream “for his arthritis joints in his hands and fingers and takes [medication] for pain and inflammation.” However, the examination report also notes that the Veteran’s x-rays are normal and do not show arthritis. The examiner opined that the diagnosed lumbar spondylosis and intervertebral disc syndrome and disc extrusion diagnosed in November 2015 is unrelated to any Southwest Asia event or exposure and there is no diagnosis secondary to an environmental or other hazardous experience during your Gulf War deployment and diagnoses are unrelated to any in-military event. As there is no evidence of a diagnosis of arthritis and the Veteran is currently in receipt of service connection for his joint pain, the Board finds the Veteran does not have a separate disability for service connection. Without a disability, service connection cannot be granted. Therefore, the Veteran’s claim is denied. 6. Entitlement to service connection for skin disability to include as a result of Persian Gulf War service The Veteran contends that service connection is warranted for a skin disability. Service treatment records show a history of pseudofolliculitis barbae noted in basic training. He was on a shaving profile. He developed an abscess about the left mandibular angle area related to PFB. The Veteran is service connected for pseudofolliculitis barbae (PFB). Therefore, this claim is adjudicated as a claim for skin symptoms other than PFB. Post service, the Veteran continues to note occasional flares with the PFB, mainly if he shaves. He reported symptoms develop approximately 4 to 5 times per month. At the November 2010 VA examination, the Veteran reported “bumps on his scalp.” The examiner opined that he did not have a skin disorder. In a December 2010 rating decision, service connection for a scalp and skin disorder was denied. At the VA examination dated in February 2017, the examiner stated that the Veteran’s diagnosed lipoma is a common condition in the general population and is less likely related to environmental exposure during the Gulf War. The examiner also stated that the lipomas were diagnosed in 2010 and are less likely than not related to your active service. The examiner opined these are familial. The examiner stated there was no evidence of scalp rash or lesions at the current examination. Upon review of the evidence, the Board finds that service connection is not warranted. First, service connection cannot be granted for an undiagnosed illness, as lipomas are a diagnosed disorder. Second, service connection is not warranted on a direct basis as the preponderance of the evidence is against finding an etiology between the lipomas noted in 2010 and service. Although the Veteran reported PFB and an abcess in service, he is separately service-connected for the PFB and there is no evidence of an etiology between his present complaints and service. The Board is cognizant of the Veteran’s lay statements and finds him competent to provide evidence of observable symptoms. However, the diagnosis and etiology of a skin disorder requires expert knowledge and therefore, the Board finds the opinion of the VA examiner to be more probative in that regard. Therefore, the Veteran’s claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for respiratory disability, including sinusitis, allergic rhinitis, and pneumonia to include as a result of Persian Gulf War service Remand is necessary for clarification prior to adjudication. Service treatment records were negative for a diagnosis of, or treatment for rhinitis. He was treated for pneumonia in service. Separation examinations from both periods of service did not report any findings regarding a respiratory disorder. Post-service treatment records show treatment for acute sinusitis in 2002. The treatment records also show a history of perennial allergic rhinitis. The Veteran also reported shortness of breath with exertion. The Veteran underwent a VA examination in November 2010. The examiner noted recurrent allergic rhinitis and allergies but found that the Veteran had no respiratory disorders. At the February 2017 VA examination, the Veteran reported a history of allergic rhinitis dated back to basic training. X-rays suggested chronic maxillary sinusitis. The examiner opined that there was no historical data to suggest the Veteran’s disorder was aggravated beyond normal progression related to environmental exposure during the Gulf War and existed prior to the Veteran’s Gulf War service and is therefore, not caused by Gulf War service. The examiner also noted he does not have a diagnosed respiratory condition. The examiner stated that it is as likely as not that his shortness of breath is related to deconditioning and obesity and it is less likely than not that the shortness of breath relates to environmental exposures during the Gulf War. The Board finds that a clarifying diagnosis and opinion is necessary. Although the VA examiner opined that the Veteran does not have a diagnosed respiratory disorder, he also noted a diagnosis of allergic rhinitis and sinusitis. It is unclear from the opinion as to whether these diagnoses are related to the Veteran’s reports of allergic rhinitis in service. Therefore, remand is warranted. 2. Entitlement to service connection for chronic fatigue syndrome to include as a result of Persian Gulf War service Remand is necessary to obtain a clarifying VA opinion prior to adjudicating this claim. The Veteran is service-connected for posttraumatic stress disorder with insomnia and chronic joint pain. The Veteran underwent a VA examination in November 2010. He reported having tired feelings and fatigue. The examiner was unable to provide a definitive finding of chronic fatigue syndrome. The Veteran was afforded a VA examination in February 2017. The Veteran reported a 20 year history of chronic fatigue. He related it to pain medication, medication for his PTSD, and other psychological issues as well as poor sleep. VA examiner noted a diagnosis of fibromyalgia in 2016. The examiner opined that the issues of posttraumatic stress disorder and obstructive sleep apnea are as likely as not the cause of the Veteran’s fatigue and poor sleep pattern. The examiner opined that it is less likely as not that the Veteran has chronic fatigue syndrome related to environmental exposures during the Gulf War. The Board finds that clarification is necessary. It is unclear whether the Veteran has a separate diagnosis of chronic fatigue syndrome for which service connection is warranted on a secondary basis due to the Veteran’s PTSD medication or if his fatigue is only a symptom of a service-connected disorder. Therefore, remand is necessary prior to adjudication. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. As the claim for TDIU is inextricably intertwined with the remanded claims of service connection, remand is necessary pending their adjudication. 4. Entitlement to an initial rating in excess of 40 percent for service-connected chronic joint pain is remanded. In September 2019, the Board remanded this claim for the issuance of a Supplemental Statement of the Case (SSOC). The Board finds that there has not been substantial compliance with the remand as this issue was not included in the August 2020 SSOC. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records. 2. After obtaining any outstanding records, obtain a VA addendum opinion to address whether the Veteran had a diagnosis of allergic rhinitis or sinusitis that was incurred during or as a result of service. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner is asked to address the following: (a.) For each disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease, to include the Veteran’s service in the Persian Gulf War. Even if the disorder has resolved, the examiner is asked to offer an opinion as to whether the disorder was related to service. (b.) The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If any of the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 3. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file regarding his chronic fatigue syndrome claim. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner is asked to address the following: (a.) The examiner should identify whether the Veteran has a separate diagnosis of chronic fatigue syndrome during the claim period, even if the disability has resolved. The examiner must specifically identify whether the Veteran has chronic fatigue syndrome that is distinct from his service-connected joint pain and PTSD with insomnia (b.) If such a diagnosis is made, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in service; (b) is otherwise related to an in-service injury, event, or disease, to include environmental exposures during service in Southwest Asia during the Persian Gulf War. (c.) If any disorder is not found to be related to service, is it at least as likely as not caused by or aggravated (i.e., permanently worsened beyond the natural progression) by any of the Veteran’s service-connected disabilities? 4. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). (Continued on the next page)   5. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 6. Readjudicate the claims. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and given an opportunity to respond. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.