Citation Nr: 0100512 Decision Date: 01/09/01 Archive Date: 01/17/01 DOCKET NO. 97-09 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to service connection for a stomach disorder, skin disorder, memory loss, and joint pain, to include the disorders being due to undiagnosed illness. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTRODUCTION The veteran had service from July 1969 to July 1971, and October 1974 to October 1992, including service in Southwest Asia from October 1990 to March 1991. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded these claims in October 1998 for further development. At that time, the Board noted that the veteran had over 20 years of service, which included his period of service during the Persian Gulf War (PGW). As there was some indication that some of his pathology may have been related to earlier or later service, the Board determined to adjudicate the issues as service connection to include but not limited to his period of service during the Persian Gulf War (PGW). The claims are now ready for adjudication. FINDINGS OF FACT 1. To the extent required, the RO has developed all evidence necessary for an equitable disposition of the veteran's claims. 2. The veteran's skin condition described, as pruritus, is due to an undiagnosed illness that manifested itself during service. 3. The veteran's service medical records contain numerous complaints, findings, and diagnosis of joint pain, as well as injuries to the arms, legs, back, and shoulders beginning several years prior to his service in Southwest Asia (SWA). They do not contain any complaints, findings, or diagnosis of a chronic neuropsychiatric disability of any kind, including a memory loss disorder. 4. The veteran has not presented any competent evidence of a relationship between a stomach disorder; joint pain disorder; or, memory loss, and an undiagnosed illness. CONCLUSIONS OF LAW 1. A skin condition due to an undiagnosed illness was incurred during PGW service. 38 U.S.C.A. § 1117 (West 1991 & Supp. 2000); 38 C.F.R. § 3.317 (1999). 2. There is no reasonable possibility that the claim for entitlement to service connection for a stomach disorder, joint pain, and memory loss due to an undiagnosed illness as a result of service in the SWA pursuant to 38 C.F.R. § 3.317 may be substantiated, or that these disorders were incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 1991 & Supp. 2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C.A. § 5100 et. seq.); 38 C.F.R. §§ 3.303, 3.304, 3.317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes that on November 9, 2000, the President signed into law H.R. 4864, the "Veterans Claims Assistance Act of 2000." The provisions of this act, in effect, eliminate the "well-grounded" claims requirement. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C.A. § 5100 et. seq.). Under the newly enacted criteria, the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. In the case of a claim for disability compensation, the Secretary shall include providing a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. However, the secretary is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303 (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1999). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Furthermore, service connection may be established for chronic disability resulting from an undiagnosed illness which became manifest either during active 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, 2001. 38 U.S.C.A. § 1117 (West 1991 & Supp. 2000); 38 C.F.R. § 3.317(a)(1) (1999). Objective indications of a 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 six 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 become manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from 38 C.F.R. Part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a) (3) (1999). A disability referred to in this section shall be considered service-connected for purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5) (1999). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving 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, or menstrual disorders. 38 C.F.R. § 3.317(b) (1999). However, the threshold question which must be resolved with regard to each claim is whether the veteran has presented evidence that there is a reasonable possibility that the claim is capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A plausible claim is "one which is meritorious on its own or capable of substantiation." Black v. Brown, 10 Vet. App. 279 (1997). For there to be a reasonable possibility that a claim may be substantiated, there must be a medical diagnosis of current disability, lay or medical evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence of a nexus between the in-service injury or disease and current disability. See Epps v. Brown, 9 Vet. App. 341, 343- 44 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996); Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Watson v. Brown, 4 Vet. App. 309, 314 (1993). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, show that the veteran had a chronic condition in service, or during an applicable presumptive period, and still has such a condition. The evidence must be medical in nature, unless it relates to a situation where lay evidence is competent. However, if chronicity is not applicable, a claim may still be substantiated on the basis of continuity of symptomatology if the condition was noted during service or during an applicable presumptive period and if competent evidence, either medical or lay, related the present disorder to that symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). Procedurally, the Board notes that the veteran filed a claim in March 1995, including a skin disorder, stomach problems, joint pains, and memory loss, as due to undiagnosed illness. Although a stomach disorder, and a skin disorder were originally claimed on a direct service-connected basis, and denied in final RO determinations, these claims have been clarified to be only claims for undiagnosed illness. In addition, several claims were also originally submitted, including low back pain; right and elbow disorders; and left hip and left knee pain on a direct service connected basis, and denied in final RO determinations. However, a generalized joint pain disorder was not finally determined, as such these claims have been combined and clarified to be a claim for joint pain, to include the disorder as due to an undiagnosed illness. Because the undiagnosed illness claims are based on essentially the same legal theory, the claims for a stomach disorder, and joint pain disorder will be discussed together. Moreover, the claims for a skin disorder, and memory loss will be discussed separately. a. Skin disorder due to undiagnosed illness Service medical records note complaints, in 1975, of a facial rash, diagnosed as mild to moderate pseudofolliculitis barbae. Also in 1975 was a complaint of a dry scaly plaque like rash in the groin area, and a rash on the end of the penis. These were treated with Mycelex, and bacitracin. In July 1992, the veteran developed hives on his face, as well as swelling, and itching. This was noted to be an allergic reaction to Motrin. In a VA examination in December 1992, the veteran reported that his skin irritated him no matter what he did. The examiner made no objective findings, but diagnosed dermatitis, type unknown. The veteran filed a claim in March 1995 for service connection for a skin condition as due to service in the Persian Gulf. In April 1995, a VA examiner noted that the veteran had been previously seen at the VA for evaluation of his xerosis and pruritus. The veteran reported the condition since serving in the Gulf War. He used several creams, including Aladerm with menthol and phenol, several times daily and after bathing. He reported the condition to be severe. It itched and he scratched, particularly after coming out of the bath, or in temperature changes. He denied hives, but reported associated patchy redness. The examiner noted normal skin of the chest, back, and arms with no primary lesions evident. There was no excoriations, and the skin was negative for dermatographism. The diagnosis was pruritus with mild xerosis of greater than eight years duration of idiopathic nature; previous workup was unrevealing for underlying cause of the pruritus, and the xerosis has been persistent and probably accounted for the recurrent episodes of itching and scratching. He reported relief with recurrent medication and use of antihistamines. The examiner doubted that chronic urticaria was related to his clinical picture. In a VA examination in September 1999, the examiner noted complaints of pruritus on 2 occasions in 1994 and 1995; and, severe itching on exposure to water, and when perspiring since 1990. The itching was intense particularly when perspiring. He had been treated through the VA with topical lotions such as Aladerm and systemic anti-histamines such as Hydroxyzine. The symptoms were pruritus, quite severe after exposure to water. The examiner made no objective findings. The diagnosis was aquagenic pruritus vs. aquagenic urticaria. In light of the pertinent regulations, the Board has considered all the information and medical evidence and grants this Persian Gulf veteran's claim of entitlement to service connection for a skin condition due to an undiagnosed illness. Essentially, the evidence of record substantiates a chronic undiagnosed skin disorder that became manifest within the presumptive period (extended to December 31, 2001). Specifically, as noted above during the most recent VA examination in September 1999, the examiner noted that while the physical examination revealed no findings, "The symptoms again are pruritus which is quite severe after exposure to water." This chronic severe itching is well documented in the records, and has not been associated with any diagnosed disorder. Furthermore, the veteran first reported that his skin irritated him, "no matter what I do," in a VA examination two months after service. At that time the diagnosis was dermatitis, type undetermined, causing the patient to be irritated at times. In addition medical notations discount urticaria as a possible cause of the condition. Resolving the benefit of the doubt in the veteran's favor, the criteria for an award of service connection for a skin condition as an undiagnosed illness are satisfied. 38 U.S.C.A. §§ 1117, 5107; 38 C.F.R. § 3.317. b. Stomach disorder and joint pain, due to undiagnosed illness The Board finds that the symptomatology of a stomach disorder, and joint pains for which the veteran complained has not resulted in a disability which can be said to be "undiagnosed." Specifically, in April 1995 and September 1999 VA examination reports, the veteran was diagnosed with hiatal hernia, and gastrointestinal reflux disease (GERD). Constipation was also diagnosed in the 1999 examination. Thus, his stomach condition has been diagnosed. Regarding joint pain, in a VA examination in December 1992, x-rays revealed left elbow tendinous calcification around the olecranon. (The Board notes that service connection was granted for a left elbow disability.) In a VA examination in April 1995, a diagnosis of fibromyositis of the shoulders and elbows was made. Finally, in a VA examination in September 1999, a diagnosis of mild degenerative joint disease, left shoulder; and knees, with loss of function due to pain, confirmed by x-ray was made. The examiner further opined that the veteran's complaints were more likely due to intercurrent cause rather than Persian Gulf service. Accordingly, several clinical diagnoses for his joint pain have been recorded. The Board notes, parenthetically, that the veteran service records reveal a 16 or more year history of muscle and joint pains and injuries, which dates the disorder to the mid-1970s and predates it by several years to his Persian Gulf War service. These include; 1974 - injured arm, and elbow; 1975 - bone contusion, right elbow; injured back moving a refrigerator; pain in both arms for a week; low back strain, slight muscle tightness; muscle spasms, upper arm for 2 months; 1976 - pain, right shoulder blade; injured right olecranon; right elbow injury, olecranon, several tiny bone fragments; 1979 - swollen, painful joints; 1984 - reported a dislocated left shoulder; 1977-78, 1991 - diagnosed, marked lordosis, lumbar, possible mechanical back strain; 1992 - left leg pain; mechanical lower back pain; sciatica, and herniated nucleus pulposus. Moreover, in his service retirement examination in June 1992, he reported back pain for 2 to 3 years; and, painful joints for 5-6 years; as well as pain in his hips. He filed claims for direct service connection for lower back pain; painful joints; and elbow pain in November 1992. By rating decision in January 1993, service connection was granted for a left elbow disorder. In addition, while not specifically denying service connection for a generalized joint pain disorder, service connection was denied for low back, left hip, and knee pain; and a right elbow disorder. The provisions of 38 C.F.R. § 3.317 only apply to undiagnosed illnesses; therefore, service connection for a stomach disorder, and a joint pain disorder are precluded under this regulation. Since there is, of record, medical evidence attributing the veteran's claimed undiagnosed illnesses to clinically-diagnosed disorders, the requirements for entitlement to service connection under 38 C.F.R. § 3.317 are rendered not plausible and the claims are denied. The Board has also considered the multiple written statements submitted by the veteran's family, and friends. These statements are not competent evidence to establish a medical relationship to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). While the Board has considered the veteran's contentions and find that his statements are probative of symptomatology, the statements and opinions are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). The veteran's assertions are not deemed to be credible in light of the other objective evidence of record showing clinically diagnosed disorders. The veteran lacks the medical expertise to offer an opinion as to the existence of current stomach, and or joint pain pathology, as well as to medical causation of any current disability. Id. In the absence of competent, credible medical evidence, service connection is not warranted for a stomach disorder, and or joint pain, due to an undiagnosed illness as a result of service in the Southwest Asian Theater pursuant to 38 C.F.R. § 3.317. c. Memory loss due to undiagnosed illness Service records reveal a February 1979 mental health consultation for nerves, with a notation of a head injury in December 1975. The only injury to the head was a laceration on the forehead. He was not unconscious, and had no problems. No present problems were noted by the examiner. In an August 1989 examination he reported a history of loss of memory. The retirement examination in June 1992 was negative as to any memory or other mental disorders. In a VA examination in April 1995, the veteran reported memory problems beginning in late 1992. He had difficulty remembering things and in concentrating while studying for an automotive repair course. The examiner noted the veteran was well developed, nourished, pleasant, cooperative and in no acute distress. He was alert and oriented x 3 with normal speech, and pleasant affect. A mini-mental status exam was considered normal with 30 of 30 answers. He recalled 3 of 3 words after five minutes; spelled words backwards; followed written commands; and drew intersecting pentagons. His face was symmetric with normal pinprick, and cranial nerves appeared intact. Motor exam was normal with normal bulk, tone, and 5/5 strength. Sensory was normal to light touch, and pinprick. Cerebellar was normal for finger to nose. The examiner noted the memory problems were subjective. No detectable abnormalities were found by neurological examination. In a neuropsychiatric examination in May 1995, the examiner noted no significant decline in overall cognitive or intellectual functioning, and no significant objective impairment in memory functioning in a man of low average premorbid abilities. His intelligence was in the average range, but his general fund of information and oral math skills were in the low average range. Significant weakness was noted in his attention skills. An assessment of his verbal and visual memory revealed no significant impairment for short or long term memory, but some relative difficulty with high load unstructured verbal material (list learning). In a VA mental disorders examination in September 1999, the examiner noted the veteran was alert; oriented; cooperative; with no evidence of depression. There was mild anxiety related to his medical problems. There was however, no evidence of excessive anxiety to the degree of a panic disorder; and, no evidence of psychosis. Cognitively, he was intact in all spheres. He complained of recent memory problems however neuropsychological testing revealed no impairment in cognitive functioning. He was functionally competent, and a GAF of 90 was assigned. A neurologist noted complaints of difficulty in a math course in 1994. He was experiencing more difficulty with math than previously experienced in service. The examiner noted that the veteran had mood difficulties which he linked to his service in Saudi Arabia. These were apparent to the examiner to be due to his skin disorder. His wife was also concerned that it might be a transmissible disease and was reluctant to have direct physical contact with him. The examiner opined that there was some poor retention of previously well known math skills. After a review of the evidence, the Board concludes that the veteran's contentions, to the effect that he has memory loss is not supported by the record. Post-service medical evidence is negative for treatment for or diagnosis of a memory loss disorder. Specifically, although the veteran has claimed memory loss, and concentration and memory difficulties, several VA examinations have found the claim to be subjective. No detectable abnormalities were found by neurological and neuropsychiatric examiners. Thus, there is no clinical medical evidence of a memory loss disability, and the objective medical evidence of record does not show that the disorder is exhibited at this time. Since, as previously discussed, basic service connection requires that a disability must be currently manifested, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that service connection for a memory loss disorder could be granted and the claim for service connection is therefore denied. Because the regulations define an undiagnosed illness essentially as one where objective indications of a chronic disability cannot be attributed to any known clinical diagnosis and there is no evidence of the current disabilities claimed, the Board need not reach the issue of whether they have existed for six months or more, or whether they are manifestations of an undiagnosed illness. The Court has held that "Congress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. (Citation omitted.) In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). As the veteran has not submitted competent evidence that he currently suffers from a memory loss disorder, the claim is denied. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); Caluza v. Brown, 7 Vet.App. 498 (1995). There is nothing in the record which suggests the existence of any additional evidence that might render plausible this claim on the bases of current existence and a medical nexus. ORDER Entitlement to service connection for a skin condition due to an undiagnosed illness is granted. Entitlement to service connection for a stomach disorder due to an undiagnosed illness is denied. Entitlement to service connection for memory loss, and joint pain, to include the disorders being due to undiagnosed illness is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals