Citation Nr: 21027991 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-31 996 DATE: May 10, 2021 ORDER Service connection for chest wall lipomas (lipomas), to include as secondary to a Gulf War/Undiagnosed illness, is denied. Service connection for fibromyalgia, to include as secondary to a Gulf War/Undiagnosed illness, is denied. Service connection for chronic fatigue syndrome (CFS), to include as secondary to a Gulf War/undiagnosed illness, is denied. REMANDED The appeal for an increased disability rating in excess of 50 percent, for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and unspecified depressive disorder (acquired psychiatric disorder) is remanded. The appeal for an increased disability rating for right knee osteoarthritis, rated as 10 percent disabling for the period prior to November 2, 2017, 30 percent disabling for the periods of November 2, 2017 to January 14, 2019, and July 1, 2019 to October 18, 2020, and 40 percent disabling for the period beginning October 19, 2020, is remanded. The appeal for an increased rating for right knee instability, rated as 10 percent disabling for the period prior to October 19, 2020, and 20 percent disabling for the period beginning October 19, 2020 is remanded. The appeal for an increased rating for left knee degenerative joint disease, rated as 10 percent disabling for the period prior to October 19, 2020, and 40 percent disabling for the period beginning October 19, 2020, is remanded. The appeal for an increased rating for left knee instability, rated as zero percent disabling prior to December 19, 2019 and 20 percent disabling thereafter is remanded. The appeal for an increased, compensable rating for vasomotor rhinitis (rhinitis) is remanded. Service connection for carpal tunnel syndrome (CTS), to include as secondary to a Gulf War/Undiagnosed illness, is remanded. Service connection for a spinal cord disability is remanded. Entitlement to a total disability rating based on an individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's lipomas do not constitute as an undiagnosed illness or a medically unexplained chronic multi-symptom illness; there is no evidence that the Veteran's chest wall lipomas are causally related to his active service to include service in Saudi Arabia. 2. The Veteran does not have fibromyalgia. 3. The Veteran does not have chronic fatigue syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection for lipomas, to include as secondary to a Gulf War/Undiagnosed illness, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for fibromyalgia, to include as secondary to a Gulf War/Undiagnosed illness, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for CFS, to include as secondary to a Gulf War/undiagnosed illness, are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1988 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012, November 2015, December 2015, and March 2017 rating decisions of the Department of Veterans Affairs (VA). In a November 2017 rating decision, the agency of original jurisdiction (AOJ) increased the disability rating for right knee osteoarthritis to a 30 percent disability rating, effective November 2, 2017. In October 2019, the Board remanded the increased rating claims for right knee osteoarthritis and right knee instability to the AOJ for further evidentiary development. Subsequently, in an October 2020 rating decision, the AOJ increased the disability ratings for: (1) left knee degenerative joint disease, to 40 percent disabling, effective October 19, 2020; (2) right knee instability, to 20 percent, effective October 19, 2020; (3) right knee osteoarthritis, at a temporary, total 100 percent evaluation for surgical or other treatment necessitating convalescence, from January 15, 2019 to June 30, 2019, and a 40 percent disability rating, beginning October 19, 2020. Additionally, this October 2020 rating decision granted service connection for left knee instability, at 20 percent disabling, effective December 19, 2019; and bilateral knee scarring, at a non-compensable, zero percent rating, effective November 2, 2017. As these rating increases are not representative of a total grant of the benefits sought for the increased rating claims for the right and left knee disabilities, these issues remain on appeal before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Although the Veteran initially requested for a hearing on the issues on appeal, he withdrew his request for a hearing. See May 2019 Correspondence. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran asserts that his symptoms, including CFS, fibromyalgia (to include body pain, joint pains in the shoulder, knee and hands), and lipomas, are due to Gulf War Syndrome, including exposure to environmental hazards. See May 2018 Statement in Support of Claim. Service connection may also be established for a Persian Gulf War veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service, on active duty in the Armed Forces, in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent, not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71382 (Oct. 7, 2016). To constitute as a "qualifying" chronic disability, the disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and 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, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: chronic fatigue syndrome; fibromyalgia; irritable bowel syndrome; any diagnosed illness that the Secretary determines that presumptive service-connection is warranted; or any other illness that the Secretary determines that the following criteria for a medically unexplained chronic multi-symptom illness are met. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term "medically unexplained chronic multi-symptom 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 an inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have manifested for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month chronicity period will be measured from the earliest date when the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). 1. Lipomas Although service personnel records confirm that the Veteran served on active duty in Southwest Asia, and specifically, in Saudi Arabia, chest wall lipomas is not on the enumerated list of qualifying chronic disabilities or diseases associated with service in that region. 38 C.F.R. § 3.317. Nonetheless, the Veteran was afforded a VA examination for skin conditions, to include chest wall lipomas, in October 2015. In an October 2015 VA opinion, a VA examiner opined that the Veteran's lipomas are less likely than not causally related to any known Gulf War exposures/environmental hazards. As the rationale for this opinion, the VA examiner reasoned that the causes of lipomas are unclear. He additionally cited medical literature to explain that patients may frequently have more than one lipoma, and occasionally they may have a genetic condition, characterized by the development of multiple lipomas in several family members; and that according to the Mayo Clinic, risk factors for lipomas include, being between the ages of 40 and 60 years old; having certain other disorders, including adiposis, dolorosa, Cowden syndrome, Gardner's syndrome, and genetics (noting that lipomas tend to run in families). The Board finds that service connection, on the presumptive/statutory basis of a Gulf War/undiagnosed illness, is not warranted under these circumstances. As noted above, the Veteran's lipomas are not a qualifying chronic disability, as defined by 38 C.F.R. § 3.317; and the evidence does not show that the Veteran's lipomas are related to a Gulf War illness, and/or that his chest wall lipomas are the result of an environmental exposure during his service in Southwest Asia. Notwithstanding, service connection may be established on a direct basis when the evidence shows that the disease was incurred during or aggravated by service, without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043 44 (Fed. Cir. 1994). Although the medical evidence reflects that the Veteran currently has lipomas, none were shown during his active military service and were not diagnosed until May 2000. As the Board has considered the benefit-of-the-doubt rule and finds that it is not applicable to the circumstances in this case, service connection for chest wall lipomas, to include as secondary to a Gulf War/undiagnosed illness, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Fibromyalgia and CFS The weight of the evidence does not show that the Veteran currently has fibromyalgia or CFS. In an October 2015 VA opinion for fibromyalgia, a VA examiner found that the Veteran does not have a diagnosis of fibromyalgia. He explained that the Veteran has symptoms of arthralgia, related to arthritis of the knees and shoulders, with impingement in shoulder, degenerative disc disease to the cervical spine, and chronic headaches. Similarly, in the October 2015 VA opinion for CFS, the VA examiner found that the Veteran does not have a diagnosis of CFS. He explained that the Veteran's fatigue symptoms are more likely than not related to his to PTSD, headache conditions, and orthopedic conditions. Thus, the Board finds that the evidence does not show a current diagnosis of fibromyalgia or CFS, and in the absence of proof of a current disability, there is no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223,225 (1992). Accordingly, the service connection claims for fibromyalgia and CFS must be denied. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. Increased Rating Claims for an Acquired Psychiatric Disability; Right Knee Osteoarthritis; Right Knee Instability; Left Knee Degenerative Joint Disease; and Left Knee Instability (Bilateral Knee Disabilities) The Board notes that additional VA examination reports were added to the Veteran's claims file after the appeal of the increased rating claims for PTSD and bilateral knee disabilities were certified to the Board. When the AOJ receives additional evidence after a claim on appeal has been transferred to the Board, the AOJ must provide the Veteran and his or representative, if any, a supplemental statement of the case, unless the additional evidence is duplicative or it is not relevant to the issue on appeal. 38 C.F.R. §§ 19.31, 19.37(b). Thus, as additional, relevant medical evidence, which is not duplicative, was added to claims file in March 2021 and April 2021, a remand is required for the AOJ to consider the new evidence for the increased rating claims for an acquired psychiatric disability and the bilateral knee disabilities at the first instance; and provide the Veteran with a supplemental statement of the case. 2. Increased, Compensable Rating for Rhinitis The Veteran asserted entitlement to an increased, compensable rating for rhinitis. See January 2016 NOD. The last time the Veteran was afforded a VA examination for rhinitis was in September 2015. Although a January 2019 pulmonary consult note suggests that the Veteran may have symptoms of nasal congestion, as the "recommendations" from this treatment note indicates that "treatment of nasal condition with nasal steroids may help with upper airway resistance", the current severity of the Veteran's service-connected rhinitis is not discernable. Thus, as more than five years have elapsed since the last time the Veteran underwent a VA examination for rhinitis, and since there is an indication that the disability may be more severe that previously rated, a remand is required for a new, contemporaneous VA examination to assess the current severity of the Veteran's service-connected rhinitis. 3. CTS The Veteran asserts entitlement to service connection for carpal tunnel syndrome, to include as secondary to Gulf War syndrome/an undiagnosed illness and/or environmental hazards exposure. See May 2018 Statement in Support of Claim. The Veteran was afforded a VA examination for CTS, and subsequently, in an October 2015 VA opinion for CTS, a VA examiner opined that the Veteran's CTS "is a diagnosable condition according to evidence based medicine and criteria established by the American Neurological Society and after years of clinical study, the National Institute of Medicine has not found any evidence to link potential exposures in the environment of deployment to the development of a diagnosable condition such as CTS." However, in finding that the Veteran's CTS is a diagnosable condition, the VA examiner failed to opine as to whether the Veteran's CTS is causally related to his active service. Thus, as this opinion is incomplete for adjudication purposes, a remand is required for a supplemental opinion on the relationship between the Veteran's current CTS disability to his active service, if any. 4. Spinal Cord Disability The Veteran asserts entitlement to service connection for a spinal cord disability. Specifically, he reported that he served as a combat engineer, jumping out of airplanes as airborne duties, and constantly walked in the fields, with an average of 60 to 100 pounds of equipment in his rucksack for five years and six months. See May 2018 Statement in Support of Claim. In an October 2015 VA examination, however, the VA examiner evaluated him for a neurologic condition, rather than a musculoskeletal disability. Further, medical treatment records include an MRI of the cervical spine (neck), with impressions of a mild posterior disc bulge at the C3/C4 spine; and "right lateral disc/osteophyte with right facet hypertrophy, resulting in mild effacement of the thecal sac and right neural foraminal stenosis." See March 2015 Neurology Outpatient Note. Thus, as the Veteran has a current, musculoskeletal, neck disability, a remand is required for a new VA examination and opinion on the neck disability, as a musculoskeletal disability. 5. TDIU A claim for a TDIU is generally part of an increased rating claim when that claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 54 (2009). In this case, TDIU is explicitly raised by the record. Specifically, the Veteran filed an application for increased compensation based on unemployability (TDIU application) in January 2017 and January 2021. He asserts that he is unemployable due to multiple disabilities, including his service-connected PTSD, bilateral knee disabilities, right shoulder, and vasomotor rhinitis. See January 2017 and January 2021 TDIU Applications. Thus, as the increased rating claims for the bilateral knee disabilities, rhinitis, and PTSD are remanded for additional developments, and the outcome of these issues may impact the outcome of the TDIU claim, the TDIU claim, as intertwined with these issues, is also remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Review all additional evidence that have been associated with the claims file since the October 28, 2020 supplement statement of the case was furnished. Among any additional evidence that may have since been added to the claims file, this includes the March 2021 and April 2021 VA examination reports for mental disorders and bilateral knee disabilities. 2. Also, schedule the Veteran for a new VA examination to assess the current severity of his service-connected allergic rhinitis. The appropriate disability benefits questionnaire form should be utilized, to the extent possible. 3. Also, obtain a supplemental opinion for a clarification of the Veteran's carpal tunnel syndrome (CTS). The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's CTS is the result of an in-service illness, injury, or event; and/or is otherwise related to his active service. b. The Veteran is competent (i.e., legally permitted) to report his symptoms and history, and thus, the VA examiner should also consider the Veteran's lay statements about his symptoms and conditions. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. Also, schedule the Veteran for a new VA examination with a physician (VA examiner) to obtain an opinion addressing determine the etiology of any cervical spine disability. The VA examiner must review the claims file and note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's spinal cord disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran's active service. b. In rendering an opinion, consider all lay statements from the Veteran about onset and symptomatology. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.