Citation Nr: 18124037
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-34 190A
DATE:	August 3, 2018
ORDER
Entitlement to service connection for a psychiatric disorder is denied.
Entitlement to service connection for a left shoulder disorder is denied.
Entitlement to service connection for a right shoulder disorder is denied.
Entitlement to service connection for a neck disorder is denied.
Entitlement to service connection for a low back disorder is denied.
Entitlement to service connection for bilateral hearing loss is denied.  
Entitlement to service connection for tinnitus is denied.  
Entitlement to service connection for a disorder manifested by sinus congestion is denied.
Entitlement to service connection for obstructive sleep apnea is denied.  
Entitlement to a temporary total rating due to surgical treatment and convalescence of the right knee disability is denied.  
REMANDED
Entitlement to service connection for a heart disorder is remanded.
Entitlement to service connection for the cause of the Veteran’s death is remanded.
FINDINGS OF FACT
1. The Veteran did not have a psychiatric disorder, a left or right shoulder disorder, a neck disorder, a low back disorder, or hearing loss as defined by VA. 
2. Tinnitus was not present until years after active service and is not etiologically related to active service.  
3. A chronic disorder manifested by sinus congestion was not present in active service and is not etiologically related to active service.
4. Obstructive sleep apnea was not present in active service and is not etiologically related to active service.  
5. The Veteran did not have surgical treatment of the right knee at any time from June 18, 2010.  
CONCLUSIONS OF LAW
1. The criteria for service connection for a psychiatric disorder have not been met.  38 U.S.C. § 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018).  
2. The criteria for service connection for a left shoulder disorder have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018).  
3. The criteria for service connection for a right shoulder disorder have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018).  
4. The criteria for service connection for a neck disorder have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018).  
5. The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018).  
6. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018).  
7. The criteria for service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).  
8. The criteria for service connection for a disorder manifested by sinus congestion have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018).  
9. The criteria for service connection for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018).  
10. The criteria for a temporary total evaluation for the right knee disability have not been not met. 38 C.F.R. §§ 4.29, 4.30 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1977 to August 1980, November 1983 to January 1993, and January 2003 to August 2003.   The Veteran died in April 2011.  The appellant is the Veteran’s surviving spouse, who has been recognized as a valid substitute in the matter.  
Service Connection
Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  
Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.”  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  The term “chronic disease” refers to those diseases, such as arthritis and organic disease of the nervous system, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
The Veteran is a Persian Gulf Veteran.  Service connection may be granted to a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms.  The symptoms must be manifest to a degree of 10 percent or more.  By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  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.  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 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317.
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.
Generally, service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f). 
“Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim.”  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The United States Court of Appeals for Veterans Claims has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
1. Entitlement to service connection for a psychiatric disorder
A claim for service connection for a psychiatric disorder was denied in a March 1998 rating decision.  The claim was denied because the evidence did not include a diagnosis of a psychiatric disorder.  Notably, an April 1997 VA examination resulted in the examiner’s determination that the Veteran did not have an Axis 1 diagnosis.  The Veteran was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period.  In connection with the Veteran’s claim to reopen, evidence has been added to the record, which includes a September 2001 Annual Medical Certificate that has the notation “PTSD” on the line marking that the Veteran was a Gulf War Veteran.  The Board finds that new and material evidence has been received sufficient to reopen the previously denied claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  
Service connection is not warranted for a psychiatric disorder.  The Board has carefully reviewed the evidence of record but finds the probative evidence does not support the finding that the Veteran had a service-connectable psychiatric disorder including posttraumatic stress disorder (PTSD).   The available treatment records do not reveal any diagnosis of a psychiatric disorder; private treatment records dated in 2009 and 2010 reveal negative history of anxiety, depression, or agitation and no abnormal findings for the psychiatric system; the April 1997 VA examination revealed a finding of no Axis 1 disorder; and the Veteran failed to report for an examination scheduled for October 2010.  Furthermore, the Board notes that the September 2001 certificate only reveals the Veteran’s signature, and it includes no explanation for the “PTSD” notation.  In the absence of a medical professional’s signature or other indication that the notation was indicative of a contemporaneous diagnosis, the Board finds the September 2001 record is not probative evidence of a psychiatric disorder.  The appellant has not reported any outstanding records which could document a psychiatric disorder, and the record is absent “objective indications of a chronic” psychiatric disorder for presumptive service connection based on Gulf War service.  Accordingly, the claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  
2. Entitlement to service connection for a left shoulder disorder
3. Entitlement to service connection for a right shoulder disorder
4. Entitlement to service connection for a neck disorder
5. Entitlement to service connection for a low back disorder
The Board finds service connection is not warranted for a shoulder, neck, or low back disorder.  The Board has carefully reviewed the evidence of record but finds no diagnosis of a shoulder, neck, or back disorder and no objective findings of shoulder, neck, or back abnormality, and the Veteran and appellant have not reported the existence of outstanding records pertaining to the reported disorders.  Notably, private treatment records consistently reveal findings of no abnormality and a negative history of limitation of motion of the neck.  Although the Veteran is competent to report pain, there must be “objective indications of chronic disability” or “functional impairment” due to the pain to warrant service connection. See Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018).  The record is absent such evidence.  Accordingly, the claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims.  
6. Entitlement to service connection for bilateral hearing loss
The Board finds service connection is not warranted for hearing loss.  The Board has carefully reviewed the evidence of record but finds the probative evidence indicates that the Veteran does not have hearing loss, as defined by VA.  The record does not reveal any medical finding or diagnosis of hearing loss, as defined by VA, and the Board notes that private treatment records dated in 2009 and 2010 report that no hearing abnormality was detected.  The appellant has not reported any outstanding records which could document hearing loss, as defined by VA.  Even accepting as competent and credible the Veteran’s report that he had hearing loss, his statements do not establish the presence of a disability for VA purposes.  Accordingly, service connection is not warranted for hearing loss.
7. Entitlement to service connection for tinnitus
The Board finds service connection is not warranted for tinnitus.  Service treatment and examination records reveal no notation indicative of tinnitus, and private treatment records dated in May and October 2009 and March, August, and September 2010 report that the Veteran was negative for tinnitus, and the Veteran and appellant did not report the existence of tinnitus during and since service.  There is no medical or competent lay evidence linking tinnitus to service.  Accordingly, the claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  
8. Entitlement to service connection for sinus congestion.  
The Board finds service connection is not warranted for a disorder manifested by sinus congestion, diagnosed as allergy syndrome.  Initially, the Board finds that a preponderance of the evidence shows that the claimed disability was not present until after the Veteran’s discharge from service.  Although the Veteran was treated for sinusitis in July 1991, treatment records suggest the condition resolved.  Subsequent service examination records consistently report normal clinical findings for the sinuses, nose, and mouth and throat and negative histories as to ear, nose, or throat trouble; chronic or frequent colds; sinusitis; hay fever; or chronic or nighttime cough, and the first diagnosis of record of a chronic condition dates in May 2009.  
The Veteran reported a history of symptoms during and since active service in Kuwait, during his service in the U.S. Marine Corps.  Although the Veteran is competent to report his symptomatic history, he is not competent to attribute the symptoms to a currently diagnosed disorder rather than a different disorder or to acute upper respiratory infections.  Furthermore, the history of chronic symptoms since service in Kuwait is contradicted by the negative histories provided during examinations in December 1991, October 1992, February 1993, June 1998, October 2000, and March 2005.  In light of the foregoing, the Board finds the Veteran’s history of chronic symptoms since active service in Kuwait is not probative evidence that a current disorder began in service.  In sum, the Board finds the preponderance of the evidence establishes that a disability manifested by sinus congestion was not present until after the Veteran's discharge from service.
The Board further finds the probative evidence does not suggest that a currently diagnosed disability is related to service.  There is no medical evidence of record linking a current disability to service and no probative lay evidence.  Accordingly, the claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  
9. Entitlement to service connection for obstructive sleep apnea
The Board finds service connection is not warranted for obstructive sleep apnea.  Service treatment and examination records reveal no notation indicative of obstructive sleep apnea, the initial diagnosis dates in October 2009, and the Veteran and appellant did not report the existence of obstructive sleep apnea during and since service.  Furthermore, a VA medical professional provided a probative opinion in May 2012 that the sleep apnea was less likely than not related to service There is no medical or competent lay evidence linking obstructive sleep apnea to service.  Although the Veteran believed his obstructive sleep apnea was due to service, the record does not suggest that he was competent to determine the etiology of the sleep apnea.  Accordingly, the claim must be denied.  In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  
10. Entitlement to a temporary 100% evaluation for right knee surgery
In June 2010, the Veteran submitted a claim for service connection and temporary total rating for convalescence for a right knee disorder. In an October 2012 rating decision, service connection was established for a right knee disability effective June 18, 2010. The appellant did not submit a notice of disagreement with the effective date of the award of service connection for a right knee disability.
A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29.  Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment.  38 C.F.R. § 4.29(b). If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. Id. 
A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30.
The Board finds the provisions of 38 C.F.R. § 4.29 and §4.30 do not apply.  Notably, the record is absent any surgical or inpatient records for the right knee disability, and neither the Veteran nor the appellant have reported the date of the treatment at issue.  There is no indication that service connection was in effect for the right knee disorder at the time of the treatment for which a temporary total rating is sought.  The provisions of 38 C.F.R. § 4.29 and §4.30 require treatment for a service-connected disability.   In the absence of evidence that the right knee treatment occurred while the right knee disability was a service-connected disability, the claim must be denied.  
REASONS FOR REMAND
1. Entitlement to service connection for a heart disorder is remanded.
2. Entitlement to service connection for the cause of the Veteran's death is remanded.
The Board finds the record would benefit if an opinion were obtained to determine whether the Veteran’s heart condition, diagnosed as sinus bradycardia, was a service-connectable disorder related to service.  The Board finds the issue of entitlement to service connection for the cause of the Veteran’s death is inextricably intertwined with the claim for service connection for the heart disorder and must also be remanded.
The matters are REMANDED for the following action:
1. Ensure that all available, relevant records have been associated with the record.  
2. All pertinent evidence of record must be made available to and reviewed by a medical professional with sufficient expertise to determine whether the Veteran had a chronic heart disorder manifested by sinus bradycardia.  The physician should provide an opinion as to whether the Veteran had a chronic disorder manifested by sinus bradycardia.  If so, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder originated during the Veteran’s active service or is otherwise etiologically related to the Veteran’s active service.  
The rationale for the opinion(s) must be provided, with consideration of the electrocardiogram findings of sinus bradycardia in October 1992 and May 2004, and the “development” of it prior to his death in April 2011.  If the medical professional is unable to provide the required opinion, he or she should explain why.  If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed.  
3. Thereafter, readjudicate the Veteran’s claims.  If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal.  An appropriate period of time should be allowed for response.
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Snyder, counsel 

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