Citation Nr: 21023724 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-59 698 DATE: April 21, 2021 ORDER Entitlement to service connection for a joint pain condition, to include as due to an undiagnosed illness due to Gulf War Syndrome, is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a fatigue condition is remanded. FINDING OF FACT The preponderance of the evidence is against finding the Veteran has had a joint pain condition, any symptoms of joint pain that cause functional impairment of earning capacity, or objective indications of a qualifying chronic disability for undiagnosed illness purposes, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a joint pain condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1989 to April 1993. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal and the Kuwait Liberation Medal. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in November 2020. A transcript of the hearing is of record. Service Connection Joint Pain Condition 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(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 C.F.R. § 3.303(a). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Here, the Veteran had active service in Saudi Arabia from December 1990 to April 1991. Therefore, he is considered a Persian Gulf Veteran. Although the Veteran alleged joint pain due to an undiagnosed illness due to Gulf War syndrome, the evidence does not show objective indications of a qualifying chronic disability. The competent and credible evidence, including the December 2014 VA examination, is against a finding that the Veteran has exhibited objective indications of joint pain. Specifically, the examination report reflects that the Veteran denied a current or past history of a joint pain condition and denied experiencing generalized muscle ache or weakness and migratory joint pain. As the Veteran does not have objective indications of a qualifying chronic disability, service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. Therefore, the Board will now address whether service connection for a joint pain condition is warranted on a direct basis. The Board concludes that the Veteran does not have a current diagnosis of a joint pain condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While a review of the record illustrates that the Veteran was treated for pain in his right shoulder, right wrist, and left wrist during service (as noted in his service treatment records), there is no evidence that a joint pain condition, including any condition of the right shoulder, right wrist, or left wrist is currently or presently diagnosed. To that point, the record reflects that the Veteran denied any joint pain or a joint pain condition, as noted in VA treatment records. Furthermore, during the November 2020 Board hearing, the Veteran testified that he did not have a current issue with joint pain. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the medical evidence does not reflect that the Veteran has had a current joint pain diagnosis at any point during the appeal period. Additionally, there is no indication the Veteran has had symptoms of the condition that have caused him any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran's application for service connection for a joint pain condition illustrates that he believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires specialized medical education to diagnose a joint pain condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for a joint pain condition. However, without evidence of a current diagnosis, a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection for a joint pain condition is denied. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. In December 2014, the Veteran underwent a VA examination in which the examiner indicated that the Veteran’s headache condition, diagnosed as migraine with migraine variants, was not related to his service in Southwest Asia because the condition is a disease with a clear and specific etiology and diagnosis. However, the record reflects that the Veteran also reported that his headache symptoms onset during his active service and continued after his separation from service, as noted in his November 2020 Board hearing testimony. As this contention was not addressed by the December 2014 VA examiner, the Board finds remand for a medical opinion is required. In addition, during the November 2020 Board hearing, the issue of whether his headache condition was secondary to his service-connected PTSD was raised. Thus, on remand, the examiner should also address whether the Veteran’s headache condition is secondary to his service-connected PTSD. 2. Entitlement to service connection for GERD is remanded. A review of the record reflects that a December 2014 VA examiner opined that the Veteran’s GERD was not related to his service in Southwest Asia. In support of the opinion, the examiner indicated that the Veteran’s condition is a disease with a clear and specific etiology and diagnosis and also noted that there was no objective medical evidence supporting his condition is related to exposure in Southwest Asia. However, the during the November 2020 Board hearing, the issue of whether his GERD was secondary to his service-connected PTSD was raised. Thus, remand for a medical opinion as to whether his GERD is secondary to his PTSD is necessary. 3. Entitlement to service connection for a fatigue condition is remanded. During the November 2020 Board hearing, the Veteran reported that he had not received a formal diagnosis of chronic fatigue syndrome; however, he reported suffering from fatigue and low energy and indicated that his symptoms onset during his service after his deployment. Although he was provided with a VA examination in December 2014, a medical opinion was not provided as the Veteran denied having a fatigue condition during the examination. Thus, the Board finds remand for a new VA examination and medical opinion addressing the etiology of the Veteran’s fatigue is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician addressing the Veteran’s headache condition, diagnosed as migraine with migraine variants and chronic headaches. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinions. Following a review of the claims file, the examiner is asked to respond to the following: (a) Is it at least as likely as not that the Veteran’s headaches (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (b) If it is determined that any answer to (a) is that it is less likely than not, then is it at least as likely as not that any diagnosis of headaches is related to an in-service injury, event, or disease? (c) Is it at least as likely as not the Veteran’s headache condition was caused by his service-connected PTSD? (d) Is it at least as likely as not the Veteran’s headache condition was aggravated (i.e., worsened beyond natural progression) by his service-connected PTSD? In providing the opinions requested in (a) and (b), the examiner is advised to consider the Veteran’s report that he did not go to sick call because it was discouraged and that he self-medicated for treatment. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Obtain an addendum opinion from an appropriate clinician addressing the etiology of the Veteran’s GERD. The Veteran’s claims file must be made available to the examiner for review. An examination should only be scheduled if the examiner deems one is necessary for providing the requested opinion. Following a review of the Veteran’s claims file, the examiner is asked to provide an opinion on the following: (a) Whether it is at least as likely as not the Veteran’s GERD was caused by his service-connected PTSD. (b) Whether it is at least as likely as not the Veteran’s GERD was aggravated (i.e., worsened beyond natural progression) by his service-connected PTSD. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed fatigue. The Veteran’s claims file must be made available to the examiner for review. Following a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Please specifically opine as to whether the Veteran has chronic fatigue syndrome (CFS). (b) Please state whether the Veteran's fatigue is attributable to a known clinical diagnosis at any time during the pendency of his claim. (c) For any known clinical diagnosis provided, opine as to whether it is at least as likely as not such disorder had its onset during service, or is otherwise related to his service, to include exposure to environmental hazards during his service in Southwest Asia. (d) If any of the Veteran's symptoms are not attributable to a known clinical diagnosis, then opine as to whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multisymptom illness, that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. A "medically unexplained chronic multisymptom illness is defined as 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. In providing these opinions, the examiner should address the Veteran’s testimony at the November 2020 Board hearing in which he stated his symptoms onset after his deployment. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. (Continued on next page) Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.