Citation Nr: 1754156	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-18 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for a left foot disability.

2.  Entitlement to service connection for obstructive sleep apnea.

3.  Entitlement to service connection for a disability manifested by hand tremors, to include as due to an undiagnosed illness.  

4.  Entitlement to service connection for headaches, to include as due to an undiagnosed illness.  

5.  Entitlement to service connection for a disability manifested by extreme fatigue, to include as due to undiagnosed illness.  

6.  Entitlement to service connection for a hiatal hernia, to include as due to an undiagnosed illness.  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1988 to August 1992.

These matters come before the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  They were subsequently remanded by the Board in November 2015 for additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268 (1998).    

In May 2015, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge (VLJ) regarding these claims.  A transcript of that hearing has been associated with the record.

The issue of entitlement to vocational rehabilitation and employment (VRE) benefits was raised by the Veteran in August 2016, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).
FINDINGS OF FACT

1.  The Veteran's diagnosed left foot metatarsalgia and plantar fasciitis were incurred in or are otherwise etiologically related to service.

2.  The Veteran's diagnosed obstructive sleep apnea is causally related to service.

3.  The Veteran's hand tremors and headaches are manifestations of an undiagnosed illness.  

4.  The Veteran's extreme fatigue is a manifestation of several diagnosed conditions unrelated to military service.  

5.  The evidence of record fails to demonstrate that the Veteran's hiatal hernia, which constitutes a structural gastrointestinal disease, was incurred in or is otherwise etiologically related to service, to include in-service treatment for gastroenteritis.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for left foot metatarsalgia and plantar fasciitis have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  Resolving the benefit of doubt in favor of the Veteran, the criteria for service connection for sleep apnea have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  The criteria for service connection for hand tremors, as due to undiagnosed illness, have been met.  38 C.F.R. §§ 3.102 , 3.317 (2017).

4.  The criteria for service connection for headaches, as due to undiagnosed illness, have been met.  38 C.F.R. §§ 3.102 , 3.317 (2017).
5.  The criteria for service connection for a disability manifested by extreme fatigue, to include as due to undiagnosed illness, have not been met.  38 U.S.C. §§ 1101 , 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).

6.  The criteria for service connection for a hiatal hernia, to include as due to undiagnosed illness, have not been met.  38 U.S.C. §§ 1101 , 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  Here, the Veteran has not raised any issues with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

Legal Criteria

The Veteran is currently seeking entitlement to service connection for those disabilities as set forth on the title page.    

Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service.  38 U.S.C. 
§ 1110 (West 2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).

To establish service connection, there must be competent evidence of: (1) The current existence of the disability for which service connection is being claimed; 
(2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability.  Shedden v. Principi, 381 F.3d 1163 (2004).

Further, presumptive service connection may be awarded to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (1) Became manifest either during active military, naval, or air 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; and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1)(i) and (ii) (2017).  

Legal Analyses

Left Foot Disability

Following VA examination in January 2016, the Veteran was diagnosed with metatarsalgia and plantar fasciitis of the left foot.  Said diagnoses are corroborated by the additional evidence of record, including VA treatment records.  

Additionally, the Veteran provided testimony regarding the rigorous physical demands of his military service, which included heavy lifting in his role as an aviation supply clerk and significant daily training exercises which included running long distances.  The Veteran has further indicated that his left foot pain onset during service and has existed since that time. 

The Board finds the Veteran's testimony to be competent and credible evidence of the reported events.  Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  His testimony is unvarying throughout the record and consistent with the nature of his military service, including a Certificate of Release or Discharge from Active Duty (DD-214) denoting the Veteran's in-service assignment as an aviation supply clerk and service treatment records (STRs) referring to an unrelated injury inflicted during a run. 

In a January 2016 VA examination, the VA examiner opined that the Veteran's left foot plantar fasciitis was at least as likely as not incurred in or caused by his military service.  The examiner noted that the Veteran's active duty history of bilateral foot pain was consistent with his current symptoms and diagnosis.  Given the Veteran's active duty job requirements, including his rigorous physical training exercises, it was at least as likely as not that the Veteran's plantar fasciitis was thus incurred during service.  Additionally, the examiner concluded that the Veteran's metatarsalgia was at least as likely as not a progression of his plantar fasciitis, due to the Windlass mechanism of the plantar fascia affecting the metatarsophalangeal joints.  The examiner then cited to several medical sources in support of these assertions.

Accordingly, the Veteran's claim for entitlement to service connection is hereby granted.  38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Obstructive Sleep Apnea

The Veteran's obstructive sleep apnea was diagnosed following January 2016 VA examination, and is corroborated by the additional evidence of record.  

Further, the evidence of record indicates that the Veteran's symptoms onset during service.  The Veteran, who is established as a competent and credible witness, has provided testimony to this effect.  The record also contains an August 2015 lay statement from the Veteran's ex-wife, who met the Veteran during his military service.  At that time, the Veteran's ex-wife observed that the Veteran commonly snored at night and repeatedly stopped breathing in his sleep.  See Layno, 6 Vet. App. at 469.  

The January 2016 VA examiner concluded that no nexus exists between the Veteran's sleep apnea and his military service.  In doing so, the examiner reported that there was no objective documentation regarding the lay statements of record, as the Veteran's STRs were silent for a diagnosis of sleep apnea during active duty.  The examiner additionally cited to a medical resource which establishes age, gender, obesity, and craniofacial/upper airway soft tissue abnormalities as the primary risk factors for sleep apnea.  Thus in assessing the Veteran's medical history, particularly his documented weight gain of 30 pounds following his exit from service, the examiner concluded that no nexus was present in this case.

However, the Board affords limited probative value to this opinion, which is based largely upon the Veteran's weight gain following his exit from service.  At no time does the examiner attempt to remedy this rationale against the competent lay evidence of record which establishes that certain pertinent symptomatology onset during service.  Instead, the examiner cites to the lack of an in-service diagnosis in support of the proffered conclusion.  However, the lack of such a diagnosis does not stand as competent or conclusive evidence that the disability did not exist at that time, particularly in light of the testimony of record regarding the Veteran's in-service symptoms.  See Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).  

Thus, in weighing the January 2016 opinion against the competent lay evidence of record, and in resolving doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether his obstructive sleep apnea is causally related to service.  38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 53-56.  Accordingly, the claim is hereby granted. 

Hand Tremors and Headaches

The Board will next address the Veteran's hand tremor and headache claims simultaneously, as the provisions of 38 C.F.R. § 3.317 are instructive to both.  

In this regard, the Board notes that the Veteran has verified service in the Southwest Asia theater of operations during the Persian Gulf War.  Further, both neurological symptoms and headaches are recognized as objective signs or symptoms of an undiagnosed illness.  38 C.F.R. § 3.317(b) (2017).  Here, the Veteran has endorsed hand tremors and headaches beginning in the early to mid-1990s and existing since that time.  As the Veteran has established himself as a credible and competent witness, the Board finds that the Veteran has displayed these objective signs and symptoms for approximately two decades.  See Layno, 6 Vet. App. at 469. 

As such, presumptive service connection is available to the Veteran upon evidence that these symptoms cannot be attributed to any known clinical diagnosis.  Upon review of the evidence of record, the Board finds that they cannot.  VA treatment records spanning January 2011 to August 2015 commonly reference the existence of these symptoms, yet do not attribute them to any clinical diagnoses.  Further, the January 2016 VA examiner noted the Veteran's history of "non-specific tremors of the upper extremities, probably stress-related" and "non-specific episodic headaches."  At no time does the examiner assess the etiology of these symptoms, other than the generic statement that the Veteran's hand tremors are "probably stress-related."  The Board finds that this statement, coupled with the classification of the Veteran's symptoms as "non-specific," falls far short of establishing that these are signs and symptoms of clinical diagnoses.  In this regard, the January 2016 examination report indicates that a variety of tests were administered to rule out known diagnoses, to include MRIs and CT scans.

Based on the foregoing and in the interest of affording all benefit of the doubt to the Veteran, the Board finds that the Veteran's hand tremors and headaches are at least as likely as not a manifestation of an undiagnosed illness.  As such, entitlement to service connection for hand tremors and headaches as manifestations of an undiagnosed illness is granted.  38 C.F.R. §§ 3.102, 3.317 (2017).

Extreme Fatigue

At the outset, the Board acknowledges that fatigue is a symptom often attributed to an undiagnosed illness.  Id.  Here, the Veteran has identified the onset of this symptom as approximately 1995, and as existing since that time.  See also Layno, 6 Vet. App. at 469.  Thus, presumptive service connection is for application upon evidence that this symptom cannot be attributed to a known clinical diagnosis.

In this case, the Board finds that the Veteran's extreme fatigue is likely the symptom of several combined and identified diagnoses.  The January 2016 VA examiner noted that the Veteran's fatigue onset as occurring in conjunction with a diagnosis of iron deficiency anemia.  The Veteran was subsequently diagnosed with a hiatal hernia, such that fatigue secondary to anemia and hiatal hernia was repeatedly noted in his treatment records.  Potential contributing factors of sleep apnea and a psychiatric disability were also cited.  As such, the examiner concluded that the Veteran's fatigue was due to a number of known conditions, and that it was less likely than not that any current disorder manifested by extreme fatigue was related to service, to include in the Persian Gulf.  

The Board affords significant probative value to this opinion, which assesses the onset and progression of the Veteran's fatigue against his history of known medical conditions.  See Prejean, 13 Vet. App. at 448-49.  Thus in the presence of this competent opinion, the Board concludes that the Veteran is not entitled to the application of the Persian Gulf War presumption for his extreme fatigue, which stands as a symptom of several diagnosed medical conditions unrelated to military service.    

Such a finding does not preclude the Veteran from establishing direct service connection in this case.  However, the Board does not find competent evidence of a diagnosis existing at any time during the pendency of this claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  Instead, the January 2016 examiner clearly asserted that the Veteran does not currently have, and has never been diagnosed with, chronic fatigue syndrome.  Review of the Veteran's VA treatment records supports this contention.  In the absence of a current disability, the Board finds that direct service connection cannot be established in this case.

In offering this conclusion, the Board is cognizant of the Veteran's implicit contention that such a diagnosis exists.  Additionally, the Veteran has not demonstrated the requisite medical training and expertise to diagnose a medical condition.  See Jones v. West, 12 Vet. App. 383, 385 (1999).

 Accordingly, the Veteran's claim must be denied.  
Hiatal Hernia

Initially, the Board notes that the provisions of § 3.317 do not apply to structural gastrointestinal diseases, such that presumptive service connection is not available in this case.  

Again, the Veteran is not precluded from establishing direct service connection in this case.  In this regard, the Board first finds evidence of a current disability, as the Veteran was diagnosed with hiatal hernia during VA examination in January 2016.  Said diagnosis is corroborated by the additional evidence of record, to include VA treatment records.  

The Board further finds competent evidence of an in-service illness, as the Veteran's STRs demonstrate treatment for gastroenteritis.  

However, the Board does not find that the Veteran's hiatal hernia is causally related to his military service.  Here, the January 2016 VA examiner opined that it was less likely than not that the Veteran's hiatal hernia was incurred in or caused by his military service.  In doing so, the examiner noted that the Veteran's STRs are silent for a diagnosis of hiatal hernia, to include normal evaluations on his separation examination.  Further, the examiner noted that the Veteran's in-service treatment for gastroenteritis is unrelated to his hiatal hernia, as hiatal hernia qualifies as a structural condition whereas gastroenteritis is an infectious process.  

The Board affords significant probative value to this opinion, which is based upon a thorough analysis of the Veteran's in-service history and the nature of his current disability.  See Prejean, 13 Vet. App. at 448-49.  Thus, in the presence of this opinion and in the absence of a positive nexus opinion from the record, the Board finds that service connection is not warranted in this case.  38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 53-56.  


ORDER

Entitlement to service connection for left foot metatarsalgia and plantar fasciitis is granted.  

Entitlement to service connection for obstructive sleep apnea is granted.  

Entitlement to service connection for a disability manifested by hand tremors, as due to undiagnosed illness, is granted.  

Entitlement to service connection for headaches, as due to undiagnosed illness, is granted.  

Entitlement to service connection for a disability manifested by extreme fatigue, to include as due to undiagnosed illness, is denied.  

Entitlement to service connection for a hiatal hernia, to include as due to undiagnosed illness, is denied.  




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s