Citation Nr: 21025448 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-41 357A DATE: April 28, 2021 ORDER Service connection for joint pain is denied. Service connection for muscle pain is denied. Service connection for sleep disturbance is denied. REMANDED Entitlement to service connection for weight loss is remanded. Entitlement to service connection for a back condition to include as secondary to service-connected left foot disabilities is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to a compensable evaluation for status post fracture 4th & 5th MCP joints, left hand is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran currently has joint pain due to an undiagnosed or medically unexplained chronic multi-symptom illness. 2. The weight of the evidence is against finding that the Veteran currently has muscle pain due to an undiagnosed or medically unexplained chronic multi-symptom illness. 3. The Veteran does not have a current diagnosis of a sleep disorder and his sleep problems have been medically linked to a diagnosed condition, and therefore are not demonstrative of a medically unexplained chronic multi-symptom illness. CONCLUSIONS OF LAW 1. The criteria for service connection for joint pain as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 2. The criteria for service connection for muscle pain as due to an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 3. The criteria for service connection for sleep disturbance are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to October 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and March 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in July 2019 when it was remanded for further development. At the time of the July 2019 remand, the issues of entitlement to service connection for migraine headaches and gastroesophageal reflux disease were also remanded. While these matters were on remand, in a December 2020 rating decision, service connection for migraine headaches and gastroesophageal reflux disease was granted. Because those decisions represent a full grant of the benefits sought, those issues are no longer on appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). 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). The Veteran’s DD Form 214 states the Veteran’s military occupational specialty (MOS) was engineman, and that he earned the Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Sea Service Deployment Ribbon. The DD 214 also indicates that he had no foreign service, but had 4 years, 2 months, and 21 days of sea service. Service personnel records note that the Veteran served on the USS Theodore Roosevelt from January 2002 to September 2004 and that he was awarded a sea service deployment ribbon while serving on the USS Theodore Roosevelt in support of Operation Iraqi Freedom. The Veteran submitted information from a website www.Navysite.de, which indicated that the USS Theodore Roosevelt departed on February 4, 2003 to the Mediterranean and Arabian Gulf and returned on May 29, 2003. Based on this evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War and he is therefore a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). Accordingly, he is eligible for presumptive service connection related to Persian Gulf veterans. Joint Pain The Veteran is seeking service connection for joint pain, which he claims is due to his Persian Gulf War service. An August 2020 VA Gulf War examiner found that the Veteran’s joint pains were attributable to his diagnosed lumbar spine disabilities, foot disabilities, and service-connected hand disability. The Board observes that the issues of entitlement to service connection for a back condition, service connection for a right foot condition, and an increased rating for the left hand are the subject of separate claims on appeal and are discussed further below. There is no medical evidence otherwise indicating that joint pain was a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness, during or incident to the period on appeal. For joint pain to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause. Only if such symptoms are not related to a diagnosed disability, may they be found to be due to an undiagnosed illness. Based on the foregoing, the preponderance of the evidence of record is against finding that the Veteran has an undiagnosed illness or medically unexplained chronic multi-symptom illness manifested by joint pain for which service connection may be granted. While the Veteran believes he has an undiagnosed illness or medically unexplained chronic multi symptom illness manifested by joint pain, he is not competent to provide a diagnosis or medical opinion in this case. Identifying an undiagnosed illness or medically unexplained chronic multi-symptom illness and attributing symptoms to a diagnosed disorder, are medically complex opinions as they require specialized medical education and knowledge and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim for service connection for joint pain as due to an undiagnosed illness, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Muscle Pain The Veteran is also seeking service connection for muscle pain, which he claims is due to his Persian Gulf War service. An August 2020 VA Gulf War examiner found that the Veteran did not have a diagnosed muscle injury and that his muscle pain symptoms in his lower back were related to his degenerative disc disease. The Board observes that the issue of entitlement to service connection for a back condition is the subject of a separate claim on appeal and is discussed further below. There is no medical evidence otherwise indicating that muscle pain was a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness, during or incident to the period on appeal. For muscle pain to be due to an undiagnosed illness, the symptoms would have to be not attributable to another, specific cause. Only if such symptoms are not related to a diagnosed disability, may they be found to be due to an undiagnosed illness. Based on the foregoing, the preponderance of the evidence of record is against finding that the Veteran has an undiagnosed illness or medically unexplained chronic multi-symptom illness manifested by muscle pain for which service connection may be granted. While the Veteran believes he has an undiagnosed illness or medically unexplained chronic multi symptom illness manifested by muscle pain, he is not competent to provide a diagnosis or medical opinion in this case. Identifying an undiagnosed illness or medically unexplained chronic multi-symptom illness and attributing symptoms to a diagnosed disorder, are medically complex opinions as they require specialized medical education and knowledge and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim for service connection for muscle pain as due to an undiagnosed illness, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Sleep Disturbance The Veteran is seeking service connection for sleep disturbance, which he claims is due to his Persian Gulf War service. The Veteran’s service treatment records do not contain any complaints of problems with sleep. On his August 2006 report of medical history, the Veteran indicated that he had a history of frequent trouble sleeping, but no sleep disorder was indicated in the examiner’s summary and an August 2006 report of medical assessment.   During an August 2007 VA general medical examination, it was noted that the Veteran did not have a history of sleep apnea symptoms. In a January 2011 PTSD VA examination report, it was noted that the Veteran had sleep impairment, which was associated with his diagnosis of anxiety disorder. A May 2012 private mental status examination noted disturbed sleep patterns when describing the Veteran’s psychiatric disabilities. During a June 2013 VA mental health evaluation, the Veteran reported difficulty with sleep and was diagnosed with PTSD. In a May 2014 mental health evaluation sleep disturbance was listed as one of the Veteran’s complaints. In January 2015, it was indicated that he did not have sleep apnea. Also, in March 2015, a list of symptoms of his psychiatric disorders included sleep disturbance. In October 2019 VA mental health records, sleep problems were indicated under co-morbid psychiatric problems. During an August 2020 VA mental disorders examination, the Veteran was diagnosed with unspecified depressive disorder and unspecified anxiety disorder. Symptoms that applied to the Veteran’s diagnoses included chronic sleep impairment. The examiner indicated that sleep impairment was subsumed under the depressive and anxiety disorder diagnoses. In a corresponding medical opinion, the examiner indicated that sleep disturbance was associated with a known clinical diagnosis, unspecified depressive disorder, and unspecified anxiety disorder. The Board finds that the preponderance of the evidence is against finding service connection for sleep disturbance. The Veteran does not have a current diagnosis of sleep disturbance. In addition, although the Veteran’s sleep problem symptoms may be demonstrative of an undiagnosed illness, the Veteran’s sleep problems have been medically linked to his diagnosed anxiety disorder (which is service-connected), and therefore are not demonstrative of a medically unexplained chronic multi-symptom illness.   While the Veteran is competent to give evidence about observable symptoms such as sleep disturbance, he is not competent to diagnose a medical condition such as a sleep disorder to attribute such to any specific etiology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since the Veteran does not demonstrate a current diagnosis of a sleep disorder, or an undiagnosed illness indicative of a medically unexplained chronic multi-symptom illness, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Weight Loss Regarding the Veteran’s claim for service connection for weight loss including as due to his Persian Gulf War service, the Veteran underwent a VA examination in August 2020, where he was diagnosed with avitaminosis. While the examiner indicated that the Veteran reported weight loss, the examiner concluded that the Veteran did not have weight loss and that his weight after boot camp was 147 pounds and his current weight was 167 pounds. Although the examiner mentioned the Veteran’s reports of weight loss, she did not comment on his November 2018 hearing testimony that he fluctuates from 190 pounds to 161 pounds, did not comment on VA treatment records, including from April 2019, which note 20 pound weight loss due to depression, and that an August 2020 VA mental disorders examiner noted weight loss as a diagnosis relevant to the understanding or management of the mental health disorder. The examiner’s opinion that there was no weight loss was based only upon a comparison between the Veteran’s weight after boot camp and the Veteran’s weight on the date of the August 2020 examination. Remand is needed for an addendum opinion which considers all the evidence of record.   Back Condition The Veteran’s claim for service connection for a back condition, to include as secondary to service-connected left foot disabilities was remanded in July 2019 to obtain a VA examination. The examiner was directed to obtain opinions as to whether it is at least as likely as not that the Veteran’s currently diagnosed back condition, including lumbar degenerative disc disease and lumbar facet arthropathy syndrome, is caused or aggravated beyond its natural progression by his service-connected left foot status post bunionectomy, hallux valgus deformity and hammer toe, left 2nd toe. The Veteran underwent a VA examination in August 2020. The examiner opined that the Veteran’s lumbar degenerative disc disease and lumbar facet arthropathy syndrome were less likely than not due to or the result of left foot disabilities, as changes in the lumbar spine due to lower extremity conditions like the Veteran’s left foot disabilities would result in uneven axial loading. There was no record of a limp or altered gait from a foot condition. Unfortunately, the examiner did not provide an opinion as to whether the Veteran’s back condition was aggravated by the service-connected left foot conditions. An adequate medical opinion regarding secondary service connection must address causation and aggravation separately. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); see also 38 C.F.R. § 3.310(b). As such, remand for an addendum medical opinion is necessary. Right Foot Condition The July 2019 remand directed that a VA examination be obtained regarding the nature and etiology of the Veteran’s current right foot condition. The examiner was asked to provide opinions as to whether the Veteran’s preexisting hallux valgus of the right foot noted on enlistment in May 2000 was at least likely as not aggravated during service, and if so, whether the increase in the Veteran’s preexisting right foot disability was clearly and unmistakably due to the natural progression of the condition. In providing these opinions, the examiner was asked to consider the Veteran’s statements regarding his right foot disability, and that the Veteran had symptomatic hallux valgus of the right foot on enlistment in May 2000, had right foot surgery prior to active duty in April 2001, and sought treatment for right foot problems numerous times during service. The Veteran underwent a VA examination in August 2020. The examiner opined that the Veteran’s right foot condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. The Veteran had juvenile hallux valgus in his feet which required surgical correction prior to enlistment. Because there were moderate degenerative changes in the right 1st metatarsal consistent with pre-enlistment surgery it was less likely related to active duty. The Veteran’s congenital condition in the right foot required ongoing care to remain functional and had the same level of ongoing care during active duty as he did prior to service. Therefore, it was less likely than not to have been aggravated by service. The Veteran’s condition was worsened in the natural course of the Veteran’s pre-existing right foot condition. In finding that the Veteran’s right foot condition was less likely than not to have been aggravated by service, the rationale appears to be that the Veteran had the same level of ongoing care during active duty as he did prior to service. However, as the examiner indicated, the Veteran had required surgical correction prior to service, and had numerous complaints of right foot pain, including severe right foot pain in July 2001 that made him unable to march correctly and painful claw toes in the right foot in January 2004. The Veteran was also given orthotics. The examiner did not explain why the numerous complaints of pain, including severe pain, and resulting problems in service equated to the same level of ongoing care prior to service and consisted of worsening in the natural course of the Veteran’s pre-existing right foot condition. As such, remand for an addendum opinion clarifying the examiner’s rationale is needed. Increased Rating-Left Hand In the July 2019 remand, it was directed that the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected status post fracture, 4th and 5th MCP joints, left hand.   The Veteran underwent a VA examination in August 2020, where the examiner found normal range of motion in the left hand, no gap between the pad of the thumb and fingers, and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. No pain was noted on examination and no evidence of pain with use of the hand. However, in the remarks section of the examination report, the examiner indicated that the left ring and left little finger exhibited pain on range of motion and it was noted on examination. Because it is unclear as to the reasoning behind these contradictory findings, the Board finds that a new VA examination is needed to determine the current severity and manifestations of the Veteran’s service-connected status post fracture, 4th and 5th MCP joints, left hand. All Issues Updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from December 2020 to the present. 2. Upon completion of the above-directed development, return the Veteran’s claims file to the examiner who conducted the August 2020 VA Nutritional Deficiencies examination for an addendum medical opinion regarding the current nature and etiology of his claimed weight loss. Following a review of the claims file and a copy of this remand, the examiner must address the following: a) Specifically, state whether the Veteran’s symptoms of weight loss, if any, are attributed to known clinical diagnoses. If so, please specify each such diagnosis. If the Veteran does not have weight loss during the appeal period, the examiner must explain why. b) If the Veteran has symptoms of weight loss that have not been determined to be associated with a known clinical diagnosis, the examiner should: (i.) Indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period; and (ii.) Offer an opinion as to whether it is at least as likely as not that the Veteran’s weight loss represents a “medically unexplained chronic multisymptom illness.” Such 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. d) If any symptoms of weight loss have been determined to be associated with a known clinical diagnosis, then for EACH such diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is related to the Veteran’s military service, to include his in-service exposure to environmental hazards coincident with his service in Southwest Asia.   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. Return the Veteran’s claims file to the examiner who conducted the August 2020 VA Back Conditions examination for an addendum medical opinion regarding the current nature and etiology of his back condition. Following a review of the claims file and a copy of this remand, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently diagnosed back condition, including lumbar degenerative disc disease and lumbar facet arthropathy syndrome, is aggravated beyond its natural progression (i.e., any worsening of the condition beyond its natural progression) by service-connected left foot status post bunionectomy, hallux valgus deformity and hammer toe, left 2nd toe. [If a current back condition is found to have been aggravated by the service-connected left foot status post bunionectomy, hallux valgus deformity and hammer toe, left 2nd toe, the examiner should quantify the approximate degree of aggravation.]   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. 4. Return the Veteran’s claims file to the examiner who conducted the August 2020 VA Foot Conditions examination for an addendum medical opinion regarding the current nature and etiology of his right foot condition. Following a review of the claims file and a copy of this remand, the examiner must address the following: a) For the Veteran’s preexisting hallux valgus of the right foot noted on enlistment in May 2000, is it at least likely as not (a 50 percent probability or greater) that there was an aggravation of the disability during service (i.e., an increase in severity). b) If yes to (a), was the increase in the Veteran’s preexisting right foot disability clearly and unmistakably (undebatable) due to the natural progression of the condition. In providing these opinions, the examiner must consider and discuss the Veteran’s statements regarding his right foot disability, and that the Veteran had symptomatic hallux valgus of the right foot on enlistment in May 2000, had right foot surgery prior to active duty in April 2001, and that the Veteran sought treatment for right foot problems numerous times during service, including severe foot pain affecting his ability to march. 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. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post fracture, 4th and 5th MCP joints, left hand. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general   medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.