Citation Nr: 21028872 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-58 485 DATE: May 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression and anxiety, is denied. Entitlement to service connection for erectile dysfunction secondary to medication for depression is denied. Entitlement to service connection for headaches, to include as due to environmental hazards because of service in the Persian Gulf War, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to environmental hazards because of service in the Persian Gulf War, is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. The Veteran's acquired psychiatric disability, to include depression, anxiety, and mood disorder, did not have its onset during service nor is it otherwise related to service. 3. The evidence does not show that the Veteran's erectile dysfunction began during service, or is otherwise related to an in-service event, injury, or disease, and is not secondary to medication taken for a service-connected disability. 4. The Veteran's headaches did not have their onset during service, nor are they otherwise related to service, to include exposure to environmental hazards during the Gulf War. 5. The Veteran's GERD did not have its onset during service, nor is it otherwise related to service, to include exposure to environmental hazards during the Gulf War. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.3. 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 3. The criteria for service connection for headaches, to include as due to exposure to environmental hazards because of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.310, 3.317. 4. The criteria for service connection for GERD, to include as due to exposure to environmental hazards because of service in the Persian Gulf War, have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010, March 2012, and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that new evidence was received within a year of each of the claims' initial denials. Thus, the initial rating decisions did not become final, and the Veteran's original claims remained pending under 38 C.F.R. § 3.156 (b). In March 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran's complete service treatment records are not available; only a partial set has been associated with the claims file. Attempts were made to obtain a complete set of service treatment records; however, despite the RO's attempts, some records still have not been located. As such, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was asked to provide any service treatment records in his possession in November 2010 and to inform the RO of any alternate source from which they may be obtained. He was notified that his service records were incomplete in the in the November 2010 letter, which also informed him of the steps taken to locate his records. Service Connection To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection also may be established on a presumptive basis for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that are defined by a cluster of signs or symptoms such as: (a) chronic fatigue syndrome, (b) fibromyalgia, (c) irritable bowel syndrome, or (d) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 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 inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a). "Objective indications of chronic disability" include 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. 38 C.F.R. § 3.317 (a). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d). The Veteran's service records reflect service in the Southwest Asia theater of operations during the Persian Gulf War. Thus, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are applicable. 1. Acquired psychiatric disability to include PTSD, depression, and anxiety The Veteran asserts that he has an acquired psychiatric disability, to include PTSD, depression, and anxiety as a result of stressful in-service events. The Veteran stated that he was moved to the border of Iraq before the ground war began. He stated he could hear blasts and feel the ground shaking when the war started. He witnessed flashes of light in the distance as bombs were dropped and missiles were fired. He did not know what type of chemical warfare he was being exposed to. He feared for his life as well as for the lives of his fellow soldiers. To establish entitlement to service connection for PTSD there must be medical evidence diagnosing PTSD; a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). The available service treatment records do not reflect any complaints, treatment, or diagnosis for an acquired psychiatric disability. The Veteran underwent a VA mental disorders examination in September 2010. The Veteran was diagnosed with mood disorder due to rheumatoid arthritis with associated chronic pain and depressive features. The examiner stated the Veteran's mood disorder is a disease with a clear and specific etiology and diagnosis. The examiner explained the mood symptoms began after the onset of serious rheumatoid arthritis. Chronic pain is known to be associated with mood disorder. The chronic nature of rheumatoid arthritis and the seriousness of the pain related to this condition have resulted in the Veteran's depressed mood, irritable outbursts, fatigue, sleep disturbance and concentration deficits. The Veteran's post-service private treatment records show diagnoses of anxiety and depression. The Veteran's VA treatment records contain no diagnosis of PTSD yet do include numerous negative PTSD screenings. An October 2016 VA mental health note documents a diagnosis of major depressive disorder, recurrent. At his March 2021 Board hearing, the Veteran stated he had never been diagnosed with PTSD. In summary, the Board finds that the evidence of record does not show that the Veteran currently or at any point during the appeal period has received a valid diagnosis of PTSD. As there is no current diagnosis of PTSD, service connection for PTSD is not warranted. Concerning an acquired psychiatric disorder other than PTSD, the record contains a diagnosis of anxiety, depression, and mood disorder. With respect to a nexus between the current acquired psychiatric disability and in-service event, the only competent medical opinion of record is the September 2010 VA opinion, which weighs against the Veteran's claim. The Board finds that the weight of the probative evidence of record does not link any diagnosed psychiatric disability to service. Significantly, the September 2010 VA examiner opined that his mood disorder was likely due to the Veteran's chronic pain due to rheumatoid arthritis, which is not service connected. There is no competent medical evidence that contradicts the September 2010 VA examiner's findings. The only evidence indicating an association between the current acquired psychiatric disability and active duty are the Veteran's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of an acquired psychiatric disability is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. In sum, a psychiatric disability was not shown in service, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. 2. Erectile dysfunction The Veteran asserts his erectile dysfunction is caused by the medication he takes for depression. The Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, the preponderance of the evidence is against finding that the Veteran's erectile dysfunction is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Board notes that as the Veteran is not service connected for depression. Therefore, service connection secondary to depression, to include the use of medications for it, is not possible. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran's erectile dysfunction is 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 (a), (d). Here, there is no evidence in the record that the Veteran's erectile dysfunction is related to any in-service injury, event, or disease. Moreover, the Veteran has not contended that his erectile dysfunction is related to any in-service injury, event, or disease, either. In reaching the conclusion stated above, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102. 3. Headaches The Veteran asserts service connection for headaches, to include as due to exposure to chemical agents, pesticides, and toxic chemicals while serving in Southwest Asia. The Veteran reported traveling to areas where he was exposed to bombs and missiles with no protection. He stated in a January 2013 correspondence that he has had headaches ever since serving in the Gulf War. The Veteran underwent a VA headaches examination in February 2012. The examiner noted a diagnosis of tension headaches in 2009. The Veteran stated he was not seen in service for headaches before separation. He reported serving four to five months overseas during Desert Storm. The Veteran reported taking Motrin for his headaches. The VA examiner stated the Veteran's headaches are a medically explained illness and most closely represents the most typical presentation of stress temporal headaches and are associated with musculoskeletal tightness spasms occurring bitemporal. The Veteran denies previous head trauma or treatments of headaches while serving in Iraq. In a May 2012 addendum opinion, the VA examiner stated the Veteran is suffering from tension headaches due to specific characteristics or triggers which would be classified as an illness with a clear and specific etiology and therefore less likely than not related to events or exposure to environmental hazards while serving in Southwest Asia. During his March 2021 Board hearing the Veteran stated he did not remember having trouble with headaches in service, but guessed the real bad headaches began in roughly 1995 or 1996. The Board finds that the evidence weighs against a finding that the Veteran's headaches are related to service. While the Veteran's service treatment records are incomplete, the Veteran has denied the onset of or treatment for headaches during service. To the extent his claim is based on undiagnosed illness incurred during his Persian Gulf War service under 38 C.F.R. § 3.317, the VA examiner opined otherwise indicating the Veteran's headaches are associated with musculoskeletal tightness spasms. The examiner opined that it was less likely than not that the Veteran's headaches are caused by Gulf War exposures. As the Veteran's headaches are due to musculoskeletal tightness spasms, they are not the result of undiagnosed illness or unexplained chronic multi-symptom illness and, therefore, not subject to the presumption of service connection for Persian Gulf War experiences. 38 C.F.R. § 3.317. The Board finds the most probative evidence to be the opinion of the February 2012 VA examiner. The February 2012 examiner provided a reasoned opinion based upon a review of the claims file and examination of the Veteran. Further, there is no competent and probative medical opinion to the contrary. While the Veteran contends that his headaches are related to his service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). The diagnosis of the etiology of headaches requires medical testing and training to identify. Thus, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. Further, the musculoskeletal tightness spasms causing the headaches have not been attributed to the Veteran's service, thus, secondary service connection is not available. 38 C.F.R. § 3.310 Accordingly, as there is no evidence that the Veteran's headaches were incurred in or caused by his service, the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied.. 4. GERD The Veteran asserts his GERD is related to his service in Southwest Asia. At his March 2021 Board hearing the Veteran stated his best recollection was that his GERD has bothered him for maybe 15 years. In a November 2011 statement the Veteran asserted his GERD was caused by the medication he takes for joint pain and inflammation. The evidence shows the Veteran has been diagnosed with GERD in 2009. The Board notes that the Veteran's reports of esophageal reflux problems have been attributed to a known clinical diagnosis, GERD. As his esophageal reflux condition has been associated with a clinical diagnosis, the Gulf War Veteran presumption of service connection under 38 U.S.C. § 1117, and 38 C.F.R. § 3.317 do not apply in this matter. Although the Gulf War presumption does not apply in this case, the Veteran may be entitled to service connection on a direct basis. While the Veteran's service treatment records are incomplete, the Veteran has denied the onset of or treatment for GERD during service. There is no evidence to support that the GERD symptoms were present during his service. The Veteran underwent a VA examination in August 2010. The VA examiner stated that GERD is a diagnoseable illness and a common digestive disorder and is less likely than not caused by or a result of his service. The examiner explained that the cause of GERD is an abnormal or weak lower esophageal sphincter which leads to stomach acid flowing back up into one's esophagus causing frequent heartburn. Enbrel may also cause dyspepsia and Leflunomide may cause GI upset and diarrhea. After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for GERD. The Veteran is currently diagnosed with GERD, a known clinical diagnosis and not an "undiagnosed illness." However, there is no medical opinion linking the Veteran's GERD disability to service. The only competent medical opinion of record addressing the relationship between the current condition and service is the August 2010 VA examiner, and such opinion is against the claim. In this regard, the Board finds the opinion of the August 2010 to be the most probative. The reasoned opinion was provided based upon a review of the claims file and examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no competent and probative medical opinion to the contrary. While the Veteran contends that his GERD is related to his service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). The diagnosis of an esophageal disorder requires medical testing and training to identify. Thus, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. To the extent the Veteran asserts his GERD is caused by the medication he takes for joint pain and inflammation, the Veteran is not service connected for an underlying joint disability, and thus, secondary service connection is not available, as GERD cannot be service-connected secondary to a nonservice-connected disability. 38 C.F.R. § 3.310. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for GERD is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Left ear hearing loss The Board cannot make a fully-informed decision on the issue of service connection for a left ear hearing loss disability because an updated VA examination is needed to determine whether the Veteran has a current left ear hearing loss disability for VA purposes as set forth in 38 C.F.R. § 3.385. The Veteran has asserted his hearing has worsened over time, and his left ear hearing loss was last examined in January 2012, over nine years ago. At the January 2012 VA hearing loss examination, the examiner stated the Veteran's hearing loss was at least as likely as not related to in service noise exposure. However, the Veteran's left ear hearing loss in January 2012 was just slightly better than the standard for a hearing loss disability for VA purposes as set forth in 38 C.F.R. § 3.385. Accordingly, an updated left ear hearing examination is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for an audiology examination to determine whether the Veteran has a hearing loss disability of the left ear and, if so, the etiology of the left ear hearing loss. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate 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.