Citation Nr: 22009707 Decision Date: 02/17/22 Archive Date: 02/17/22 DOCKET NO. 17-36 894 DATE: February 17, 2022 ORDER Entitlement to service connection for a respiratory disability (other than sleep apnea) including allergic rhinitis and sinusitis, to include as due to Gulf War environmental hazards, is denied. Entitlement to service connection for a disability manifested by fatigue, to include as due to Gulf War environmental hazards, is denied. Entitlement to service connection for a disability manifested by stress, sleep disturbances, and memory loss (other than sleep apnea), to include as due to Gulf War environmental hazards, is denied. FINDINGS OF FACT 1. Regarding the respiratory claim, the weight of the probative evidence persuasively favors finding that: (a) the first respiratory diagnosis of dyspnea has already been service connected; (b) the second respiratory diagnosis of allergic rhinitis was not aggravated beyond its natural progression by service; (c) there are no other respiratory illnesses for which no etiology was established; (d) the contended symptom of headaches is duplicative of the symptoms already compensated for under the service-connected disability of generalized headaches; and (e) the contended symptom of dizziness is duplicative of the symptoms of diagnosed vertigo, which the Agency of Original Jurisdiction (AOJ) denied service connection for in the September 2015 Rating Decision and which the Veteran did not timely appeal. 2. Regarding the fatigue claim, the weight of the probative evidence persuasively favors finding that: (a) there is no diagnosis of chronic fatigue syndrome (CFS) for VA purposes; and (b) there are no other pertinent illnesses for which no etiology was established. 3. Regarding the stress, sleep disturbances, and memory loss claim, the weight of the probative evidence persuasively favors finding that all contended symptoms are duplicative of the symptoms already compensated for under the service-connected disability of posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability (other than sleep apnea) have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.317, 4.14 (2018). 2. The criteria for entitlement to service connection for a disability manifested by fatigue have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.317, 4.14 (2018). 3. The criteria for entitlement to service connection for a disability manifested by stress, sleep disturbances, and memory loss (other than sleep apnea) have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.317, 4.14 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from October 1990 to October 1994, including in Southwest Asia from February 1991 to April 1991. In an April 2019 Decision, the Board, in pertinent part: (a) denied entitlement to service connection for an upper respiratory disorder, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117; (b) denied reopening of entitlement to service connection for a disability manifested by stress, sleep disturbances, and memory loss, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117; and (c) denied entitlement to service connection for a disability manifested by fatigue, to include as a result of undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C. § 1117. In an April 2020 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the parts of the April 2019 Board Decision regarding the issues herein and remanded them for further adjudication. Regarding the issue of reopening the stress, sleep disturbances, and memory loss claim, the Court found that the Board failed to consider a potentially relevant December 2015 VA psychiatric examination diagnosing generalized anxiety disorder and discussing bad dreams, anxiety, and memory loss. Regarding the respiratory and fatigue issues, the Court found that the Board relied on inadequate July 2015 VA examinations, which were inconsistent and confusing regarding whether the Veteran had pertinent diagnoses. In an October 2020 Decision, the Board, in pertinent part: (a) reopened, but remanded, the stress, sleep disturbances, and memory loss claim (finding that it was intertwined with the then-pending claim for entitlement to service connection for an acquired psychiatric disorder); and (b) remanded the respiratory and fatigue issues for medical clarification pursuant to the Court's April 2020 JMR. In an August 2021 Rating Decision, the AOJ granted entitlement to service connection for PTSD. In a November 2021 Rating Decision, the AOJ also granted entitlement to service connection for the respiratory disorder of dyspnea. Service Connection Direct service connection may be warranted if the evidence shows: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology for certain chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Service connection may also be granted on a presumptive basis to Persian Gulf veterans who exhibit objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multi-symptom illness that became manifest either during active military 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, 2026; and, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i)-(ii). Effective August 2, 2021, particulate matter exposure during service in the Southwest Asia theater of operations during the Persian Gulf War beginning August 2, 1990, to present and/or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, is presumed and service connection may be warranted on a presumptive basis for chronic asthma, rhinitis, and sinusitis if these conditions manifested within 10 years of a qualifying period of military service. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). For purposes of 38 C.F.R. § 3.317, 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)(3). In addition, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). A chronic disability does not meet the statutory requirements of 38 C.F.R. § 3.317 if there is affirmative evidence that the disability was not incurred during active military service in the Southwest Asia theater of operations or if there is affirmative evidence that the disability was caused by a supervening condition or event or was due to the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7)(i)-(iii). Disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25. However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptoms or functional impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, No. 16-994 (November 29, 2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). 1. Entitlement to service connection for a respiratory disability (other than sleep apnea) including allergic rhinitis and sinusitis, to include as due to Gulf War environmental hazards The Veteran generally contends that he has a respiratory disability (other than sleep apnea) caused or aggravated by service that could be an undiagnosed illness or a medically unexplained chronic multi-symptom illness; he has described symptoms of phlegm and excessive saliva (see July 2015 VA respiratory conditions examination), allergic rhinitis and sinusitis with dizziness and headaches (see October 2017 Brief), and dyspnea (see May 2021 VA respiratory conditions examination). Service treatment records noted that the Veteran's mild, seasonal hay fever (allergic rhinitis) clearly and unmistakably pre-existed service. See September 1990 entrance examination. The August 1994 separation examination noted continued hay fever in Spring (seasonal) without any indication that the allergic rhinitis symptoms had become more severe or frequent. As mentioned above, the Court's April 2020 JMR found that the Board relied on inadequate July 2015 VA examinations, which were inconsistent and confusing regarding whether the Veteran had pertinent diagnoses. Accordingly, the Board's October 2020 Decision remanded for medical clarification pursuant to the Court's April 2020 JMR. Upon the most recent Board remand, the AOJ afforded the Veteran, in pertinent part: (a) a May 2021 VA sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx examination; (b) a May 2021 VA respiratory conditions examination; (c) a May 2021 VA General Medical Gulf War examination; (d) a May 2021 VA etiological opinion; and (e) an August 2021 VA etiological opinion. Assessing the Veteran's contentions, symptoms, and medical history, the examiner diagnosed respiratory conditions of: (a) dyspnea of unknown etiology (undiagnosed illness); and (b) allergic rhinitis (disease with a clear and specific etiology and diagnosis). In the November 2021 Rating Decision, the AOJ granted service connection for dyspnea; to date, the Veteran remains service connected for dyspnea. See December 2021 Codesheet. However, the May 2021 and August 2021 VA opinions were unfavorable regarding the allergic rhinitis diagnosis, explaining that there was an absence of supportive evidence indicating that the allergic rhinitis (which clearly and unmistakably existed prior to service according to the September 1990 entrance examination) was aggravated beyond its natural progression by service, noting that the August 1994 separation examination also listed hay fever occurring in Spring (on a seasonal basis, same as previously reported in September 1990). To date, the Veteran has not submitted any etiological opinions by private providers in support of his claim; to date, the evidence also has not indicated that the Veteran has the medical background necessary to competently render medical opinions regarding the etiology of these medically complex symptoms (although, as a lay person, the Veteran is always competent to report the existence and duration of any lay-observable symptoms). Jandreau, supra; Layno, supra. Additionally, VA and private treatment records currently associated with the claims file fail to indicate that the allergic rhinitis was aggravated beyond natural progression by service. Based on the above, the weight of the probative evidence persuasively favors finding that: (a) the first respiratory diagnosis of dyspnea has already been service connected; (b) the second respiratory diagnosis of allergic rhinitis was not aggravated beyond its natural progression by service; (c) there are no other respiratory illnesses for which no etiology was established; (d) the contended symptom of headaches is duplicative of the symptoms already compensated for under the service-connected disability of generalized headaches (see December 2021 Codesheet); and (e) the contended symptom of dizziness is duplicative of the symptoms of diagnosed vertigo, which the AOJ denied service connection for in the September 2015 Rating Decision and which the Veteran did not timely appeal (see December 2015 Notice of Disagreement, which appealed other issues in the September 2015 Rating Decision but not the vertigo claim). Specifically, the Board finds the May 2021 and August 2021 opinions to be probative because the examiner reviewed the pertinent records, considered the pertinent contentions, and gave adequate rationale to support the conclusion; further, the May 2021 and August 2021 opinions are consistent with other VA and private treatment records in the claims file and are not contradicted by any opinions by private providers. Although the Board acknowledges the Veteran's competent reports of lay-observable symptoms since service, the Board highlights that these reports cannot establish etiology based on chronicity and continuity of symptomology because the continuity of symptomatology language in 38 C.F.R. § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a), among which allergic rhinitis is not included. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, presumptive service connection under 38 C.F.R. § 3.317(a)(1)(i)-(ii) is precluded because the pertinent symptoms have already been attributed to known clinical diagnoses (allergic rhinitis, headaches, vertigo). Lastly, the Board finds that: (a) additional development regarding the contended symptom of headaches is unnecessary because he is already compensated for the same symptoms under the service-connected disability of generalized headaches and VA is prohibited from compensating the Veteran more than once for the same symptoms or functional impairment (38 C.F.R. § 4.14; Esteban, supra; Lyles, supra); and (b) additional development regarding the contended symptom of dizziness is unnecessary because it has already been diagnosed as vertigo and the AOJ has already denied service connection for vertigo in a September 2015 Rating Decision, which the Veteran did not timely appeal. Notably, the Board invites the Veteran to apply to reopen the vertigo claim if he so desires. In sum, because the probative evidence persuasively disfavors the claim, the Board must deny. 2. Entitlement to service connection for a disability manifested by fatigue, to include as due to Gulf War environmental hazards The Veteran generally contends that he has a disability manifested by fatigue that was caused or aggravated by service and that could be an undiagnosed illness or a medically unexplained chronic multi-symptom illness. Service treatment records failed to document any pertinent abnormalities related to fatigue. Notably, the August 1994 separation examination noted that the Veteran was referred for "Persian Gulf War syndrome," but did not specify that it was related to fatigue in any way. In a September 2018 CFS Disability Benefits Questionnaire (DBQ), private provider Dr. DV, in pertinent part: diagnosed CFS; noted the Veteran's report of persistent fatigue since November 2015; and indicated that conditions that may produce similar symptoms (hypothyroidism and sleep apnea) had been excluded because they had been treated without improvement. The provider did not render an etiological opinion or include any etiological remarks regarding his CFS diagnosis. As mentioned above, the Court's April 2020 JMR found that the Board relied on inadequate July 2015 VA examinations, which were inconsistent and confusing regarding whether the Veteran had pertinent diagnoses. Accordingly, the Board's October 2020 Decision remanded for medical clarification pursuant to the Court's April 2020 JMR. Upon the most recent Board remand, the AOJ afforded the Veteran, in pertinent part: (a) a May 2021 VA chronic fatigue syndrome examination; (b) a May 2021 etiological opinion; and (c) an October 2021 addendum etiological opinion. The May 2021 VA examiner: found no diagnosis of CFS; noted the Veteran's report of fatigue since 1991; indicated that conditions that may produce similar symptoms (obstructive sleep apnea, hypothyroidism, and fibromyalgia) had not been excluded; and found no other pertinent illnesses for which no etiology was established. The May 2021 VA opinion simply noted that there was no CFS diagnosis at that time. The October 2021 addendum opinion, however, considered the September 2018 private DBQ but similarly explained, in pertinent part, that: (a) the September 2018 DBQ should have indicated 'no' for whether other conditions that may produce similar symptoms had been excluded based on the provider's explanation of treatment without improvement; and (b) CFS for VA purposes requires the "exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms," which is not present in the Veteran's case because his fatigue can be explained by other conditions. To date, the Veteran has not submitted any etiological opinions by private providers in support of his claim (as noted above, the September 2018 DBQ diagnosed CFS without opining regarding etiology); to date, the evidence also has not indicated that the Veteran has the medical background necessary to competently render medical opinions regarding the etiology of these medically-complex symptoms (although, as a lay person, the Veteran is always competent to report the existence and duration of any lay-observable symptoms). Jandreau, supra; Layno, supra. Additionally, VA and private treatment records currently associated with the claims file fail to diagnose CFS for VA purposes or indicate that another disability manifested by fatigue was caused or aggravated by service. Notably, Dr. DV's September 2018 private treatment records (associated with the claims file on December 18, 2020) documented that the appointment was for the purpose of filling out VA forms regarding chronic fatigue and ultimately diagnosed "chronic fatigue" after noting that the Veteran still had fatigue despite using a CPAP for sleep apnea and being treated for hypothyroidism; however, similar to the September 2018 DBQ, the Board finds Dr. DV's diagnosis inadequate for VA purposes because he did not consider whether all conditions that may produce similar symptoms had been excluded (although Dr. DV considered sleep apnea and hypothyroidism, he failed to consider fibromyalgia). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Crucially, however, the Board finds the VA examiner's analysis to be more probative than Dr. DV's analysis because the VA examiner considered more pertinent conditions that may produce similar symptoms, including fibromyalgia, before finding no diagnosis of CFS for VA purposes. Based on the above, the weight of the probative evidence persuasively favors finding that: (a) there is no diagnosis of CFS for VA purposes; and (b) there are no other pertinent illnesses for which no etiology was established. As discussed above, the May 2021 and October 2021 VA opinions are more probative than the September 2018 private diagnosis because the VA examiner considered more pertinent conditions that may produce similar symptoms, including fibromyalgia, before finding no diagnosis of CFS for VA purposes; further, the May 2021 and October 2021 opinions are consistent with other VA and private treatment records in the claims file and are not contradicted by any opinions by private providers. Although the Board acknowledges the Veteran's competent reports of lay-observable symptoms since service, the Board highlights that these reports cannot establish etiology based on chronicity and continuity of symptomology because the continuity of symptomatology language in 38 C.F.R. § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a), among which disability manifested by fatigue is not included. Walker, supra. Further, presumptive service connection under 38 C.F.R. § 3.317(a)(1)(i)-(ii) is precluded because the pertinent symptom may be explained by other conditions (sleep apnea, hypothyroidism, fibromyalgia, PTSD), some of which have already been service connected (fibromyalgia and PTSD). See December 2021 Codesheet. Lastly, the Board finds that additional development regarding the symptom of fatigue is unnecessary because he is already compensated for the same symptom under the service-connected disabilities of fibromyalgia (see September 2021 Rating Decision, which compensates for symptoms including fatigue) and PTSD (see December 2021 Rating Decision, which compensates for symptoms including chronic sleep impairment) and VA is prohibited from compensating the Veteran more than once for the same symptoms or functional impairment. 38 C.F.R. § 4.14; Esteban, supra; Lyles, supra. In sum, because the probative evidence persuasively disfavors the claim, the Board must deny. 3. Entitlement to service connection for a disability manifested by stress, sleep disturbances, and memory loss (other than sleep apnea), to include as due to Gulf War environmental hazards The Veteran generally contends that he has a disability manifested by stress, sleep disturbances, and memory loss (other than sleep apnea) caused or aggravated by service that could be an undiagnosed illness or a medically unexplained chronic multi-symptom illness. Service treatment records failed to document any pertinent abnormalities related to stress, sleep disturbances, or memory loss. Notably, the August 1994 separation examination noted that the Veteran was referred for "Persian Gulf War syndrome," but did not specify that it was related to stress, sleep disturbances, or memory loss in any way. As mentioned above, the Court's April 2020 JMR found that the Board failed to consider a potentially relevant December 2015 VA psychiatric examination diagnosing generalized anxiety disorder and discussing bad dreams, anxiety, and memory loss. Accordingly, the Board's October 2020 Decision reopened, but remanded, the stress, sleep disturbances, and memory loss claim (finding that it was intertwined with the then-pending claim for entitlement to service connection for an acquired psychiatric disorder). Upon the most recent Board remand, the AOJ afforded the Veteran, in pertinent part, an: (a) April 2021 VA PTSD examination; (b) April 2021 VA etiological opinion. In the August 2021 Rating Decision, the AOJ granted service connection for PTSD; to date, the Veteran remains service connected for PTSD. See December 2021 Codesheet. The April 2021 examiner found that the Veteran only had one mental health diagnosis (PTSD) that manifested in symptoms including stress, sleep disturbances, chronic sleep impairment, and mild memory loss. Crucially, all three symptoms have already been attributed to the service-connected PTSD through its rating. See August 2021 Rating Decision; December 2021 Rating Decision. (Continued on the next page) Based on the above, the weight of the probative evidence persuasively favors finding that all contended symptoms are duplicative of the symptoms already compensated for under the service-connected disability of PTSD (see December 2021 Codesheet); thus, additional development regarding the contended symptoms is unnecessary because VA is prohibited from compensating the Veteran more than once for the same symptoms or functional impairment. 38 C.F.R. § 4.14; Esteban, supra; Lyles, supra. In sum, because the probative evidence persuasively disfavors the claim, the Board must deny. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.