Citation Nr: 21027763 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-10 962A DATE: May 6, 2021 ORDER Service connection for hypertension is granted. Service connection for headaches is granted. Service connection for joint pains is denied. REMANDED Entitlement to service connection for fibromyalgia, to include as due to environmental hazard exposure in Southwest Asia, is remanded. Entitlement to service connection for irritable bowel syndrome, to include as due to environmental hazard exposure in Southwest Asia, is remanded. Entitlement to an initial rating in excess of 30 percent for unspecified sleep-wake disorder is remanded. Entitlement to service connection for sleep apnea, to include as due to environmental hazard exposure in Southwest Asia, is remanded. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's hypertension is causally related to his service-connected unspecified sleep-wake disorder. 2. The Veteran's headache condition causally related to his service-connected unspecified sleep-wake disorder. 3. The Veteran's joint pain, diagnosed as gout, degenerative arthritis, and strain, did not onset in service or within a year of his separation from service, and is not causally related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 3. The criteria for entitlement to service connection for joint pain, diagnosed as gout, degenerative arthritis, and strain, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal initially came to the Board of Veterans' Appeals (Board) from September 2015 and October 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board, in part, denied the Veteran's claim for entitlement to service connection for fibromyalgia and irritable bowel syndrome and denied a rating in excess of 30 percent for unspecified sleep-wake disorder. The Veteran appealed that portion of the decision to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated that portion of the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The Board notes that the October 2019 decision both stated that entitlement to service connection to headaches was denied and remanded the claim for entitlement to service connection for headaches. For clarification, the Board's intention was to remand the issue of entitlement to service connection for headaches and any reference to denying the claim in the decision was erroneous. A review of the record reflects that the Agency of Original Jurisdiction (AOJ) treated the issue as being on remand and it has now returned to the Board. In addition to the issue of entitlement to service connection for headaches, in its October 2019 decision, the Board also remanded for further development the issues of entitlement to service connection for joint pain, sleep apnea, and hypertension. Those claims have been returned to the Board for further appellate action. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established with certain chronic diseases, including arthritis, 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. 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). Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). Finally, 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). 1. Entitlement to service connection for hypertension The Veteran contends that his hypertension is causally related to his service, to include environmental hazard exposure. Alternatively, he has contended that his hypertension is secondary to his service-connected unspecified sleep-wake disorder. The earliest note of hypertension in the Veteran's medical records is a February 2006 private cardiology note. A VA opinion as to the etiology of the Veteran's hypertension was obtained in October 2016. The examiner opined that the condition is benign essential hypertension and was less likely than not caused by service but rather is due to advancing age, being overweight, and genetics. An additional VA opinion was obtained in December 2019. That examiner opined that the Veteran's hypertension is less likely than not due to environmental hazard exposure during service in Southwest Asia. There is no VA opinion of record as to secondary service connection, but the Veteran did submit a December 2020 private opinion. The private doctor indicated that she had reviewed the Veteran's claims file as well as consulted with the Veteran in November 2018. She opined that the Veteran's unspecified sleep-wake disorder has caused and continued to permanently aggravate his hypertension with other risk factors including age, gender, and obesity likely contributing as well. She cited to research showing that approximately half of those with chronic insomnia run a significant risk for hypertension and another study finding that sleep disturbances such as poor sleep quality and insomnia are associated with increased blood pressure and vascular inflammation even in the absence of inadequate sleep duration. Resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for headaches The Veteran contends that his headache condition is causally related to his service, to include environmental hazard exposure. Alternatively, he has contended that his headaches are secondary to his service-connected unspecified sleep-wake disorder and/or his tinnitus. The Veteran was diagnosed with a headache condition at a December 2019 VA examination. He reported a gradual onset of headaches beginning in service. The December 2019 VA examiner opined that the Veteran's headache condition did not onset in service and is not etiologically related to service. The examiner's rationale was that the record does not reflect complaint of or treatment for headaches in service. The examiner also opined that the Veteran's headache condition is not causally related to his service-connected unspecified sleep-wake disorder, explaining only that there was no mention of complaint of headaches related to sleep-wake disorder in the record. A private doctor authored an opinion in December 2020 that the Veteran's service-connected unspecified sleep-wake disorder and tinnitus caused and contributed to permanently aggravated the Veteran's headache condition. She explained that research has suggested that sleep disruption can trigger migraines. She also cited a study showing an association between insomnia and poor sleep quality and a higher frequency and intensity of headache attacks. Finally, she cited a study showing a relationship between tinnitus and headache laterality and symptom interaction over time. Resolving all doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for joint pains, to include as due to environmental hazard exposure in Southwest Asia The Veteran contends that he has joint pain that is causally related to his service, to include environmental hazard exposure. In December 2019, the Veteran underwent VA examination to assess his report of joint pain. He reported migratory joint pain from the wrist, elbow, shoulder, knees, and feet. The VA examiner noted a diagnosis of gout made in 2010. The Veteran was also afforded VA examination of specific joints. The examiner noted the following additional diagnoses: right wrist strain in 2019, bilateral ankle strain in 2019, right elbow strain in 2019, left knee strain in 2008, left knee meniscal tear in 2009, degenerative arthritis of the knees in 2016, left knee chondrocalcinosis in 2009, lumbosacral strain in 1995, and herniated disc in 2008. The VA examiner opined that the Veteran's gout was less likely than not incurred in or caused by the Veteran's service, noting that the condition was diagnosed well after his separation from service. The examiner further opined that the Veteran's back strain and degenerative arthritis are secondary to chronic injury and not to service, including environmental hazard exposure in Southwest Asia. The Board further finds that the medical evidence does not otherwise reflect, and the Veteran has not contended, that his gout, degenerative arthritis, or other joint disability onset in service or within a year of his separation from service. At his February 2015 VA examination, the Veteran reported an onset of joint and muscle pain 15 years prior. The Veteran separated from his last period of active service in 1991, thus his report of an onset of pain is multiple years after service. The Board acknowledges the Veteran's own opinion that he has a joint condition that is related to his service, but finds that as a lay person he does not have the education, training, or experience to competently diagnose or opine as to the etiology of any current joint condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). Diagnosis of gout and arthritis requires interpretation of medical testing and opining as to the etiology of such conditions is a medical etiological question involving internal and unseen system processes unobservable by the Veteran. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) Finally, the Board acknowledges that the Veteran is considered a Persian Gulf veteran. See 38 C.F.R. § 3.317(e). However, the Veteran has been diagnosed with specific joint conditions, including gout and degenerative arthritis. Thus, service connection for those conditions pursuant to 38 C.F.R. § 3.317 is not permitted. The Board notes that to the extent that the Veteran has joint pain as a symptom of fibromyalgia, his claim for entitlement to service connection for fibromyalgia has been remanded below for further development. Based on the forgoing, a claim for service connection for joint pain, diagnosed as gout, degenerative arthritis, and strain, is denied as a preponderance of the evidence is against entitlement to service connection. REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia, to include as due to environmental hazard exposure in Southwest Asia is remanded. 2. Entitlement to service connection for irritable bowel syndrome, to include as due to environmental hazard exposure in Southwest Asia is remanded. The Veteran was last afforded a VA examination in connection with his claims for entitlement to service connection for fibromyalgia and irritable bowel syndrome in 2015. At that time examination reports noted the Veteran had not been diagnosed with fibromyalgia or irritable bowel syndrome. Subsequent VA treatment records suggest he may have since been diagnosed with both conditions. The Board thus finds that a new VA examination is needed that considers his more recent treatment records. 3. Entitlement to an initial rating in excess of 30 percent for unspecified sleep-wake disorder is remanded. The Veteran most recently underwent a VA examination of his unspecified sleep-wake disorder in 2016. In a December 2020 statement he reported his condition has worsened over the last six years. The Board finds that the Veteran should be afforded a new VA examination to assess the current nature and severity of his condition. The VA examiner should specifically consider the November 2019 mental disorders disability questionnaire completed by a private examiner. 4. Entitlement to service connection for sleep apnea, to include as due to environmental hazard exposure in Southwest Asia The Veteran contends that his sleep apnea is causally related to his service, to include environmental hazard exposure. Alternatively, he has contended that his sleep apnea is secondary to his service-connected unspecified sleep-wake disorder. Medical records reflect that the Veteran was diagnosed with mild to moderate obstructive sleep apnea in September 2010. The December 2019 VA examiner opined that sleep apnea was less likely than not incurred in service. As explanation the examiner stated that the condition was diagnosed after leaving service. The examiner also opined that the Veteran's sleep apnea is less likely than not etiologically related to service. The examiner stated that the cause of sleep apnea is excess weight, which is associated with soft tissue of the mouth and throat. The examiner noted the Veteran is overweight and concluded that the Veteran's sleep apnea is less likely than not due to environmental hazard exposure in Southwest Asia. In November 2018 a private examiner opined that the Veteran's sleep apnea was as likely as not caused and permanently aggravated by his sleep-wake disorder as well as his prescription of Xanax December 2020 private examiner opined that the Veteran's sleep-wake disorder has led to lack of sleep, which has caused him to be less likely to exercise and more likely to overeat, leading to increased weight. Although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore may not be service connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. In Garner v. Tran, No. 18-5865, the United States Court of Appeals for Veterans Claims (CAVC) concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service connected disability. The Board finds that on remand a new VA opinion should be obtained that considers both secondary service connection and whether obesity may be considered an intermediary step between a service-connected disability and the Veteran's sleep apnea. 5. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A November 2018 private examination report includes the opinion that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his anxiety disorder and sleep-wake disorder. On remand, the Veteran should be provided a VA Form 21-8940 to enable him to file a formal application for a TDIU. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination in connection with his claim for service connection for fibromyalgia. The examiner should opine whether the Veteran currently has, or has had during the period on appeal, fibromyalgia. If not, the examiner should opine whether the Veteran's reported symptoms are due to an undiagnosed illness or a medically unexplained chronic multisystem illness. Please note the following: (a) medically unexplained chronic multisystem illness is 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; (b) a chronic multisymptom illnesses of partially understood etiology and pathophysiology not be considered medically unexplained and (c) the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. If the examiner diagnoses a condition other than fibromyalgia, the examiner should opine whether the condition at least as likely as not onset in service or is causally related to the Veteran's service. The examiner must discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 2. Arrange for the Veteran to undergo a VA examination in connection with his claim for service connection for irritable bowel syndrome. The examiner should opine whether the Veteran currently has, or has had during the period on appeal, irritable bowel syndrome. If not, the examiner should opine whether the Veteran's reported symptoms are due to an undiagnosed illness or a medically unexplained chronic multisystem illness. Please note the following: (a) medically unexplained chronic multisystem illness is 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; (b) a chronic multisymptom illnesses of partially understood etiology and pathophysiology not be considered medically unexplained and (c) the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. If the examiner diagnoses a condition other than irritable bowel syndrome, the examiner should opine whether the condition at least as likely as not onset in service or is causally related to the Veteran's service. The examiner must discuss the underlying rationale for all opinions, preferably citing to specific evidence in the file supporting conclusions. 3. Arrange for the Veteran to undergo a VA examination to assess the nature and severity of his unspecified sleep-wake disorder since his last VA examination in 2016. The examiner should specifically consider the November 2019 mental disorders disability questionnaire completed by a private examiner. A complete rationale must be provided for all opinions expressed. 4. Obtain a VA opinion as to the following: (a.) Whether it is at least as likely as not that the Veteran's sleep apnea was caused or aggravated by his service-connected unspecified sleep-wake disorder, to include any medication prescribed to treat that condition. The VA examiner should specifically discuss the November 2018 private opinion. (b.) Address whether obesity served as an "intermediate step" between the Veteran's service-connected disabilities and sleep apnea by answering the following: Is it at least as likely as not that the Veteran's service-connected disabilities, to include his unspecified sleep-wake disorder, caused the Veteran to become obese or aggravated the Veteran's obesity. If so, was the obesity as a result of the service-connected disabilities a substantial factor in causing sleep apnea? If so, is it the case that the Veteran's sleep apnea would NOT have developed but for that obesity? In providing the requested opinions, the VA examiner should specifically discuss the December 2020 private opinion. 5. Provide the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU, request that he furnish any additional information and/or evidence pertinent to such a claim, and explain how to establish entitlement to a TDIU. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified and conduct all necessary development. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.