Citation Nr: 0012075 Decision Date: 05/08/00 Archive Date: 05/18/00 DOCKET NO. 98-19 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for myasthenia gravis, claimed as fatigue, blurred and double vision due to an undiagnosed illness incurred as a result of service in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. Entitlement to service connection for myasthenia gravis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from January 1987 to June 1991. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the Winston-Salem Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO denied service connection for myasthenia gravis, claimed as fatigue, blurred and double vision due to an undiagnosed illness incurred as a result of service in the Southwest Asia theater of operations during the Persian Gulf War. Due to the recent diagnosis of the veteran's illness as myasthenia gravis, the Board will also consider a claim for direct service connection for myasthenia gravis. FINDINGS OF FACT 1. During his active military service, the veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The record contains no objective evidence that is perceptible to an examining physician, nor other, nonmedical indicators that are capable of independent verification, that the veteran has current, chronic disability due to fatigue, blurred and double vision that has not been attributed to a known diagnosis. 3. Myasthenia gravis was not incurred in or aggravated during service, or manifested to a compensable degree within one year following service discharge. CONCLUSIONS OF LAW 1. The claim for service connection for myasthenia gravis, claimed as fatigue, blurred and double vision due to an undiagnosed illness incurred as a result of service in the Southwest Asia Theater of Operations during the Persian Gulf War, is not well grounded. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.317 (1999). 2. The criteria for service connection for myasthenia gravis are not met. 38 U.S.C.A. § 1110, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). A well-grounded claim is a plausible claim that is meritorious on its own or is capable of substantiation. See Murphy v. Derwinski, Vet. App. 78, 81 (1990). The three elements of a well-grounded claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. As the following discussion will reveal, the veteran's claims are not well grounded. Where a claim is not well grounded, it is incomplete and the Department of Veterans Affairs (VA) is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet.App. 69, 77-80 (1995). In this case, the RO informed the veteran of the necessary evidence in its statement of the case (SOC). The SOC informed the veteran of the types of evidence that was lacking, and what he should submit to establish a well-grounded claim. Unlike the situation in Robinette, the veteran has not advised VA in this case of the existence of any particular evidence that, if obtained, would render his claim well grounded. I. Service connection due to an undiagnosed illness Service connection may be granted for a disability for a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War when there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, headache, muscle pain, joint pain, or signs or symptoms of gastrointestinal, neurologic, or respiratory illness. The requirements for granting service connection for this type of undiagnosed illness include the following: (1) the illness must become manifested during either 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, under the appropriate diagnostic code in Part 4 of 38 C.F.R., not later than December 31, 2001; (2) the medical evidence cannot be attributed to any known clinical diagnosis; (3) there must be objective evidence that is perceptible to an examining physician and other, non-medical indicators that are capable or independent verification; (4) a minimum of a six month period of chronicity; and (5) no affirmative evidence which relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 C.F.R. § 3.317 (1999). "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)(2) (1999). 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. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3) (1999). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to, fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b) (1999). For the reasons discussed below, the Board finds that the veteran's claim of entitlement to service connection for fatigue, blurred vision and double vision, due to an undiagnosed illness is not well grounded. Although the RO did not specifically state that it denied the veteran's claim on the basis that it was not well grounded, the Board concludes that this error was not prejudicial to the claimant. See Edenfield v. Brown, 8 Vet.App. 384 (1995) (deciding that the remedy for the Board's deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error). While the RO denied service connection on the merits, the Board concludes that denying the claim because it is not well grounded is not prejudicial to the appellant, as the appellant's arguments concerning the merits of his claim included, at least by inference, the argument that sufficient evidence to establish a well-grounded claim is of record. Therefore, the Board finds that it is not necessary to remand the matter for the issuance of a supplemental statement of the case concerning whether or not the claim is well grounded. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993); VAOGPREC 16-92 (O.G.C. Prec. 16-92) at 7-10. The veteran is a "Gulf War veteran" as defined by 38 C.F.R. § 3.317(d). The evidence shows that he served in the Southwest Asia Theater of Operations from December 1990 to May 1991. The veteran made an initial claim for service connection for double vision and blurred vision, memory loss, headaches, chronic fatigue, rashes and loss of balance in July 1994, stating that he was being treated at a VA Persian Gulf clinic. The RO, after contacting the veteran, treated these claims as service connection claims due to an undiagnosed illness caused by service in the Southwest Asia Theater of Operations during the Persian Gulf War. After denying the veteran's claims in a June 1996 rating decision, the RO reviewed the veteran's claim, and issued a December 1997 rating decision, due to a regulation change that expanded the period within which undiagnosed illnesses incurred by Persian Gulf veterans must become compensably manifest in order for service connection to be established. See 38 C.F.R. § 3.317 (1997). The RO also recharacterized the issue as service connection for myasthenia gravis (claimed as fatigue, blurred vision and double vision as due to an undiagnosed illness), based on medical evidence received since the previous rating decision. Specifically, in an August 1995 letter from James F. Howard, Jr., M.D. to the veteran, Dr. Howard provided the first confirmed diagnosis of myasthenia gravis. The Board notes that in the December 1997 decision, the RO granted service connection for headaches as due to an undiagnosed illness, part of the veteran's initial claim. That headache claim is not before the Board on appeal. The Board notes that the veteran's service medical records do not contain any complaints of fatigue, blurred or double vision or medical findings of myasthenia gravis either during or following his return from Persian Gulf service. The veteran testified about his claimed undiagnosed illness during a February 2000 Travel Board Hearing. He explained that he began to have headaches and blurred vision beginning approximately 2 to 3 months following service discharge, which was in June 1991. He also stated that his condition slowly worsened, and that he developed a "droopy eyelid" in 1994 or 1995. According to the very detailed August 1995 letter from Dr. Howard, his neurological examination and electrodiagnostic studies of the veteran confirmed a diagnosis of myasthenia gravis, with a primary effect on the muscles of the eye. Subsequently, a July 1997 VA examination confirmed the myasthenia gravis diagnosis. In this examination report, there is a handwritten notation that fatigue is related to the myasthenia gravis. Based on the evidence of record, the veteran's claimed fatigue, blurred vision and double vision are not "undiagnosed", but rather symptoms of a diagnosed myasthenia gravis condition. As such, the illness cannot be service connected pursuant to 38 C.F.R. § 3.317. As the evidence in the record contains no indication that the veteran has current disability from an undiagnosed illness, the Board concludes that the claim for service connection for claimed fatigue, blurred vision and double vision due to an undiagnosed illness is not well grounded. II. Direct service connection for myasthenia gravis As discussed during the February 2000 Travel Board Hearing, the Board will also consider the possibility of direct service connection for the veteran's myasthenia gravis condition. There is no question that the veteran has a confirmed current disability, diagnosed as myasthenia gravis, which addresses the first element of a well-grounded claim. The issue is whether this medical condition is related to the veteran's active military service, including his service in Southwest Asia during the Persian Gulf War. Thus, the veteran must also provide evidence of an inservice disease or injury, and a nexus opinion between the current disability and service. See Caluza, supra. A review of the record reveals that there is some evidence for these elements, but that the evidence does not support a grant of service connection for myasthenia gravis. As the Board has previously discussed, the veteran's service medical records do not show evidence of a diagnosis of myasthenia gravis, nor evidence of complaints of blurred or double vision or fatigue. However, VA regulations allow presumptive service connection for certain diseases that are manifested to a compensable degree within specified time limits. Myasthenia gravis is presumed to be service connected if it is manifested to a compensable degree within one year following service discharge. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (1999). Under 38 C.F.R. § 4,124a, Diagnostic Code 8025, the minimum rating for myasthenia gravis is 30 percent. The Board has already described the veteran's account of experiencing headaches and blurred vision approximately 2 to 3 months after service discharge. The Board notes that the record does not show that the veteran's claimed headaches are symptoms of his myasthenia gravis condition, and further notes that the veteran is otherwise service connected for headaches. The veteran also testified during his Travel Board Hearing that medical examinations, including magnetic resonance imaging (MRI) tests, conducted shortly after service discharge did not show any medical problem. It was not until August 1995 that the veteran was diagnosed with myasthenia gravis, which is greater than one year following service discharge. The Board notes that a July 1995 VA examination resulted in diagnoses of chronic fatigue, "normal physical examination"; history of rashes, resolved; and, of note, "No evidence of any disease process known or thought to be related to the service in the Persian Gulf". The Board also notes a September 1997 letter from Nancy P. Shecter, M.D., who referred the veteran to Dr. Howard for the first confirmed myasthenia gravis diagnosis in August 1995. In her letter, Dr. Schecter reported the veteran's history of ptosis since childhood and diplopia with right eye movement limitation since 1991, during his Persian Gulf service. Dr. Schecter also stated that, "[i]t was not my impression at any time that his myasthenia gravis was related in any way to service in the Gulf War." This evidence does not show that the veteran manifested myasthenia gravis to a compensable degree within one year following service discharge. The Board notes that the veteran's family practitioner, David W. Pletcher, M.D., wrote a September 1999 letter to VA stating that the veteran has a diagnosis of myasthenia gravis dating back to 1995, "but he had the initial symptoms of this disease dating back to at least 1992." The Board finds that this medical opinion is sufficient to satisfy the well- grounded element of incurrence or aggravation of a disease or injury in service or, in this instance, manifested to a compensable degree within one year following service separation. Although Dr. Pletcher did not specify whether the initial symptoms of the current myasthenia gravis were present within one year of the veteran's service discharge in June 1991, his statement raises the possibility that they were present before June 1992. The records supplied by Dr. Pletcher - from Kaiser Permanente - are the earliest post-service medical records. The only record dated before June 1992 is one dated March 2, 1992. Unfortunately, it is largely illegible. It does not, however, appear to refer to blurred or double vision, ptosis, fatigue, or any of the symptoms that were later attributed to his myasthenia gravis. The next treatment notations are dated December 2, 1992, and refer to the scheduling of a brain MRI test related to an assessment of third nerve palsy. The next treatment notation is dated in March 1993 and refers to a motor vehicle accident on the previous day. The next treatment notation is dated in May 1993 and refers to complaints of headaches and to the negative MRI. A notation dated June 7, 1994, refers to a past medical history of "lazy eyes" and a workup to rule out ocular lesion. It mentions third cranial nerve palsy and indicates that the veteran denied other health problems. Eventually, as noted above, investigation into the eyelid drooping led to the diagnosis of myasthenia gravis. The record does not show that myasthenia gravis was manifested to a compensable degree within one year following service. Although Dr. Pletcher reports vaguely that the initial symptoms of myasthenia gravis dated back to "at least 1992", the treatment records do not contain any reference to complaints of such symptoms before the reference to an MRI for third cranial nerve palsy in December 1992. Although the veteran may now recall, in connection with his claim, that he experienced such symptoms as fatigue and blurred vision in 1991 or 1992, the Board accords more weight to the contemporaneous medical records - both from service and from after service - which do not suggest the presence of such symptoms earlier than late 1992. This is more than one year after the veteran's military service. Therefore, in reviewing the entire record, the Board finds that the evidence does not support the conclusion that the veteran incurred or aggravated myasthenia gravis in service. The evidence does not support the conclusion that the veteran manifested his current myasthenia gravis condition to a compensable degree within one year following service discharge. Consequently, his direct service connection claim for myasthenia gravis must be denied. ORDER Entitlement to service connection for myasthenia gravis, claimed as fatigue, blurred and double vision due to an undiagnosed illness, is denied. Entitlement to service connection for myasthenia gravis is denied. MARY GALLAGHER Member, Board of Veterans' Appeals