10-16 872
10-16 872
Board of Vet. App.Feb 28, 2017Background
- Veteran served Jan 1985–Feb 1992 and was in Southwest Asia during the 1991 Persian Gulf War; possible very low‑level exposure to sarin/cyclosarin was identified by DoD.
- Claims before the Board: service connection for bilateral lower‑extremity peripheral neuropathy (including secondary to nerve‑agent exposure and presumptive Gulf War chronic illness), major depressive disorder (MDD, including secondary to neuropathy), right‑ear hearing loss, and chronic infections; separate pending RO denials for fibromyalgia, obstructive sleep apnea, and TDIU were remanded for SOC issuance.
- Service records contain no diagnosis or treatment for neuropathy, MDD, hearing loss, or chronic infections during service; first post‑service neuropathic complaints appear mid‑2000s; MDD documented beginning 2006; assorted post‑service records note skin infections and prior perirectal abscess surgeries.
- VA and private exams/opinions vary: some private clinicians opined neuropathy likely related to Gulf exposure; VA examinations (notably May 2016) concluded neuropathy and chronic infections more likely attributable to diabetes and other nonservice etiologies; audiometry did not meet VA criteria for right‑ear hearing loss.
- Board found the preponderance of probative evidence against service connection for neuropathy (including presumptive Gulf War chronic illness and secondary to nerve agents), for MDD (including secondary to neuropathy), for right‑ear hearing loss, and for chronic infections; remanded only for SOC on the separate fibromyalgia/OSA/TDIU issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral lower‑extremity peripheral neuropathy (direct, secondary to nerve agents, or presumptive Gulf War chronic illness) | Neuropathy began after Gulf service and is attributable to exposure to sarin/cyclosarin or is an unexplained chronic multisymptom Gulf War illness | No in‑service evidence; DoD found only very low exposure; VA examiner found diabetes/insulin resistance as likely cause; condition not a medically unexplained chronic multisymptom illness for §3.317 presumptive relief | Denied — preponderance of evidence against nexus to service or qualifying unexplained chronic illness; diabetes etiology favored |
| Service connection — major depressive disorder (direct or secondary to neuropathy) | Depression related to chronic pain from neuropathy and life stressors; onset post‑service but claimed secondary relation | No in‑service psychiatric diagnosis; neuropathy not service‑connected so secondary theory fails; medical evidence attributes depression to pain and nonservice factors | Denied — no direct service nexus; secondary claim fails because neuropathy not service‑connected |
| Service connection — right ear hearing loss | Veteran reports hearing difficulty and links it to service noise exposure | Objective audiometry does not meet VA regulatory thresholds for a right‑ear hearing disability; no in‑service hearing loss documented | Denied — no current right‑ear hearing disability under VA criteria |
| Service connection — chronic infections (direct or presumptive Gulf War chronic illness) | Recurrent skin/soft‑tissue infections and prior perirectal abscesses alleged as chronic conditions possibly related to service or unexplained Gulf illness | Records attribute infections/skin problems to diabetes, obesity, stasis dermatitis, and defined medical etiologies; not an undiagnosed medically unexplained chronic multisymptom illness | Denied — conditions have defined etiologies and no nexus to service; not eligible for §3.317 presumptive relief |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir.) (three‑part service‑connection nexus requirement)
- Gutierrez v. Principi, 19 Vet. App. 1 (VA presumptive undiagnosed illness standard; lay reporting of signs)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits of lay competency to offer medical etiology opinions)
- Brammer v. Derwinski, 3 Vet. App. 223 (present disability required for compensation)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit‑of‑the‑doubt rule explained)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (probative value of medical opinions depends on reasoning)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (§3.303(b) chronic disease in service/continuity of symptom rules)
- Barr v. Nicholson, 21 Vet. App. 303 (adequacy of VA examinations)
- Stefl v. Nicholson, 21 Vet. App. 120 (VA exam reliance and probative value)