Citation Nr: 0312813 Decision Date: 06/13/03 Archive Date: 06/16/03 DOCKET NO. 98-09 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for sleep disorder, depression and nervousness, including as due to an undiagnosed illness. 2. Entitlement to service connection for shortness of breath, including as due to undiagnosed illness. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The case came before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. The veteran served in the Army, Army National Guard, and Army Reserves from 1956 to 1991, which includes some verified periods of active service from February 1956 to February 1958 and February 1961 to February 1963, and a verified period of active service in Southwest Asia from January 1, 1991 to February 28, 1991. The claim was remanded by the Board in July 2000 for additional development. That development was completed to the extent possible, and the case is again before the Board for review. In March 2003, the Board issued a decision on other issues on appeal and undertook additional development of the issues of entitlement to service connection for a sleep disorder, depression and nervousness as due to undiagnosed illness and the issue of entitlement to service connection for shortness of breath due to undiagnosed illness pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). The Board then provided notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (codified at 38 C.F.R. § 20.903.) FINDINGS OF FACT 1. There is competent medical opinion evidence which relates the veteran's sleep disorder, depression and nervousness, diagnosed as anxiety disorder, to his active service. 2. There is competent medical opinion evidence which relates the veteran's shortness of breath, diagnosed as chronic obstructive pulmonary disease, to exposure to hazardous fumes during service in the Persian Gulf war. CONCLUSIONS OF LAW 1. A sleep disorder, depression and nervousness, diagnosed as anxiety disorder, was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 66 Fed. Reg. 56,614-15. (Nov. 9, 2001) (to be codified at 38 C.F.R. § 3.317(a)(1)(i)); 38 C.F.R. §§ 3.303 (2002). 2. Shortness of breath, diagnosed as chronic obstructive pulmonary disease, was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 66 Fed. Reg. 56,614-15. (Nov. 9, 2001) (to be codified at 38 C.F.R. § 3.317(a)(1)(i)); 38 C.F.R. §§ 3.303, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act During the pendency of the veteran's appeal, the President signed into law the Veterans Claims Assistance Act, which contains notice and duty-to-assist provisions. See VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107). The change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment of the VCAA and which are not final as of that date. 38 U.S.C.A. § 5107, note (Effective and Applicability Provisions) (West Supp. 2002). In August 2001, VA also issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. With the exception of the amended provisions of 38 C.F.R. §§ 3.156(a), 3.159(c) (the second sentence), and 3.159(c)(4)(iii), "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. at 45,629. The Secretary is required to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by the Secretary. See 38 U.S.C.A. § 5013(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, No 01-997 (U.S. Vet. App. June 19, 2002). The RO notified the veteran, in letters dated in December 2001 and October 2002, of the need for evidence to complete his claims on the merits and of the VA's intent to assist the veteran in obtaining evidence. The Secretary is also required to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5013(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, No 01-997 (U.S. Vet. App. June 19, 2002). The RO obtained additional pertinent evidence. Since the communications and actions by the VA meet the standard set forth by the VCAA, the Board finds that no further development is needed. II. Claims on Appeal The veteran claims he suffers from sleep disorder, depression and nervousness, as well as shortness of breath, related to his Persian Gulf War service. In this regard, in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(a) (2001). In addition, certain chronic diseases, may be presumed to have been incurred in service if they become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). In addition, 38 U.S.C.A. § 1117, "The Persian Gulf War Benefits Act," authorized the Secretary of VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a prescribed presumptive period following such service. As a result, VA regulations now authorize compensation for disabilities resulting from the undiagnosed illness of Persian Gulf veterans. 38 C.F.R. § 3.317, as amended by 62 Fed. Reg. 23, 139 (2001). VA shall pay compensation in accordance with chapter 11 of title 38, United States Code, 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, provided that such disability 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, 2006, and by history, physical examination, and laboratory tests 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. Signs or symptoms which may be manifestations of 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, and menstrual disorders. However, compensation shall not be paid under this section if any of the following is the case: there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. Relevant evidence includes service medical records, VA outpatient treatment notes and VA examination reports, as well as lay statements. Service medical records are negative for diagnosis of either a respiratory disorder, or sleep disorder, depression, or related mental health diagnosis. Regarding shortness of breath, the Board-ordered VA examination for pulmonary disease was conducted in May 2003. The examiner reviewed the veteran's medical history and his complaints. His examination yielded a diagnosis of chronic obstructive pulmonary disease (COPD). The examiner noted that the veteran also had a long history of smoking and a one month history of inhaling smoke in the Gulf war. The examiner opined that it was at least as likely as not that the COPD was related to the combination of smoking and exposure to smoke and fumes in the Gulf War. It was thought to be probable that the already compromised lungs were aggravated by the smoke and fume exposure in the Gulf War as described by the veteran. As to the claim for depression, sleep disorder and nervousness, the Board-ordered VA examination for mental disorder was conducted in May 2003. The examiner reviewed the veteran's medical history and his complaints. His examination yielded a diagnosis of anxiety disorder. The examiner noted that the veteran's sleep problems, nervousness, and depression were related to the anxiety disorder. Given the Gulf War experiences reported by the veteran, the examiner opined that it was at least as likely as not that this anxiety disorder was related to service. As the veteran's complaints have been attributed to known clinical diagnoses they are not undiagnosed illnesses within the meaning of pertinent regulations. See 38 C.F.R. § 3.317. Thus, the Board will evaluate these claims on a direct service connection basis. The Board notes that the veteran has consistently attributed what is now diagnosed as COPD and anxiety disorder to his time in the Persian Gulf. The pertinent medical opinion evidence obtained by the Board indicates that it is at least as likely as not that these conditions are causally related to service. The Board finds the evidence in favor of the claim to be credible, not inconsistent with the record, and uncontroverted. Thus, the Board finds that the evidence is in equipoise as to whether or not the veteran's COPD and anxiety disorder are related to his Gulf war service. Because the evidence is evenly balanced for and against the claims, the benefit of the doubt has been considered. That doctrine is for application in this case. See Gilbert v. Derwinski, 1 Vet. App. at 55. Thus, service connection for COPD and anxiety disorder is warranted. ORDER Service connection for sleep disorder, depression and nervousness, characterized as anxiety disorder, is granted. Service connection for chronic obstructive pulmonary disease is granted. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.