Citation Nr: 21011122 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-40 003 DATE: March 1, 2021 ORDER Service connection for a liver condition is denied. Service connection for respiratory problems is denied. Service connection for chronic fatigue syndrome is denied. Service connection for generalized joint pain is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s liver condition began during active service, or is otherwise related to an in-service injury or disease, or service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran’s current respiratory problems began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had chronic fatigue syndrome at any time during or approximate to the pendency of the claim. 4. The Veteran’s generalized joint pain was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease CONCLUSIONS OF LAW 1. The criteria for service connection for a liver condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 2. The criteria for service connection for respiratory problems have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 4. The criteria for service connection for generalized joint pain have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from September 1987 to December 1992. The Board previously considered this appeal in April 2019, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. Subsequently, a September 2020 rating decision granted service connection for insomnia. As this represents a full grant of the benefits sought, the issue is no longer on appeal. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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). Gulf War Presumptive Service Connection Claims The Veteran seeks service connection for a liver condition, respiratory problems, chronic fatigue syndrome, and generalized joint pain, to include the theory that it is related to his service in Southwest Asia, including exposure to chemicals, smoke, and dust from burn pits. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the Veteran had active service in Southwest Asia from September 1990 to April 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). September 2019 VA examinations show the Veteran had acute diagnoses of pneumonia and liver abscess. He also has diagnoses for lumbar spine post disc bulge and degenerative disc disease, left hip strain, left knee strain, and left shoulder strain. As the Veteran’s claimed conditions have been diagnosed, they cannot be considered an undiagnosed illness, but they are eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). A threshold requirement for presumptive service connection for a MUCMI is that the diagnosed condition be chronic and that it manifest to a degree of 10 percent or more by December 31, 2021. The term medically unexplained chronic multisymptom 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. 38 C.F.R. § 3.117(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. In this instance, the Veteran’s claimed conditions did not manifest to a degree of 10 percent or more during the presumptive period, and the September 2019 VA examiner opined that the Veteran’s symptoms of respiratory problems, chronic fatigue syndrome and generalized joint pain are most likely associated with his nonservice-connected HIV related complications. The VA examiner explained that the Veteran’s HIV symptoms included “rapid weight loss, recurring fever or profuse night sweats, extreme and unexplained tiredness, pain, pneumonia, memory loss, depression, and other neurologic disorders.” Accordingly, presumptive service connection for any of the aforementioned claimed conditions as a MUCMI is not warranted. 1. Service connection for a liver condition. The Veteran contends that he has a liver condition related to service. Alternatively, he believes his liver condition is related to medication used to treat his service-connected disabilities. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of pyogenic liver abscesses, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of pyogenic liver abscesses began during service or is otherwise related to an in-service injury, event, or disease, or service-connected disability. VA treatment records show the Veteran was not diagnosed with pyogenic liver abscesses until August 2011, decades after his separation from service. To the extent the Veteran believes he exhibited liver abscess symptoms during service, he is not competent to provide a diagnosis in this case or determine that any alleged liver symptoms were manifestations of pyogenic liver abscesses. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the August 2011 VA infectious disease physician specifically ruled out that the Veteran’s liver abscesses were related to his service in Southwest Asia. Notably, the liver abscesses were found to be caused by an infection (diagnosed as beta hemolytic streptococcus group F) and resolved with antibiotic treatment. To the extent the Veteran believes his liver abscesses are related to an in-service injury, event, or disease, or medication used to treat a service-connected disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA treatment records that show the liver abscesses were caused by beta hemolytic streptococcus group F infection and resolved with treatment. After a full review of the record, the weight of the evidence demonstrates that liver condition did not have its onset in service, and is not otherwise related to service or a service-connected disability for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for respiratory problems. The Veteran asserts that he has respiratory problems related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran was diagnosed with pneumocystis pneumonia during the appeal period, and evidence shows that he was treated for an upper respiratory infection during service in 1988, the preponderance of the evidence weighs against finding that the Veteran has a current respiratory problem that began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with pneumocystis pneumonia until decades after his separation from service. He also had a prior history of acute bronchitis. While the Veteran is competent to report having experienced symptoms of respiratory problems since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current respiratory problems. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the September 2019 VA examiner opined that the Veteran’s pneumocystis pneumonia is not at least as likely as not related to an in-service injury, event, or disease and are most likely associated with HIV related complications. The rationale was that pneumonia is among the symptoms caused by HIV AIDS. Furthermore, the VA physician that treated the Veteran’s pneumocystis pneumonia in October 2017 pointed out that this incident was caused by noncompliance with HIV medication. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his pneumocystis pneumonia is related to an in-service injury, event, or disease; however, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2019 VA examination. After a full review of the record, the weight of the evidence demonstrates that respiratory problems did not have its onset in service and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for chronic fatigue syndrome. The Veteran contends that he has chronic fatigue syndrome related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The September 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of chronic tiredness, he did not have a diagnosis of chronic fatigue syndrome. Further, VA and private treatment records do not contain a diagnosis of chronic fatigue syndrome. While the Veteran believes he has a current diagnosis of chronic fatigue syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of chronic fatigue syndrome for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Service connection for generalized joint pain. The Veteran asserts that he has generalized joint pain related to service, to include a motor vehicle accident incurred during service in Iraq. The Board notes that he is already service-connected for lumbar spine Intervertebral Disc Syndrome, which includes his diagnosis for degenerative disc disease and post disc bulge, as well as left lower extremity radiculopathy. During the October 2018 Board hearing before the undersigned, the Veteran endorsed consistent pain in his left ankle, left knee, and low back. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran was diagnosed with lumbar spine post disc bulge and degenerative disc disease, left hip strain, left knee strain, and left shoulder strain based on September 2019 VA examinations, and evidence shows that he was treated for injuries incurred by a motor vehicle accident during service, the preponderance of the evidence weighs against finding that the Veteran has a current generalized joint pain that began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to HIV AIDS. The VA examiner noted the Veteran’s in-service motor vehicle accident injuries, but determined that the Veteran’s generalized joint pain symptoms were due to HIV AIDS, as these symptoms are most likely associated with HIV related complications. The VA examiner explained that the Veteran’s HIV symptoms included “rapid weight loss, recurring fever or profuse night sweats, extreme and unexplained tiredness, pain, pneumonia, memory loss, depression, and other neurologic disorders.” The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the Veteran believes his generalized joint pain is related to an in-service injury, event, or disease, including the motor vehicle accident, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   After a full review of the record, the weight of the evidence demonstrates that generalized joint pain did not have its onset in service and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.