Citation Nr: 0603332	
Decision Date: 02/07/06    Archive Date: 02/15/06

DOCKET NO.  01-06 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES


1.  Entitlement to service connection for left epididymitis, 
to include as due to an undiagnosed illness.

2.  Entitlement to service connection for tinea pedis of the 
left foot, to include as due to an undiagnosed illness.

3.  Entitlement to service connection for a disorder 
manifested by hip pain, to include as due to an undiagnosed 
illness.

4.  Entitlement to service connection for insomnia, to 
include as due to an undiagnosed illness.

5.  Entitlement to service connection for headaches, to 
include as due to an undiagnosed illness.

6.  Entitlement to an initial rating in excess of 10 percent 
for major aphthous stomatitis from April 12, 1997.



REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The veteran served on active duty from May 1989 to April 
1997.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision entered in August 
1997 by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Atlanta, Georgia, in which, among other 
actions, service connection was granted for major aphthous 
stomatitis, with assignment of a 10 percent rating from April 
12, 1997; and service connection was denied for headaches, 
insomnia, left epididymitis, low back and hip pain, and tinea 
pedis of the left foot.  By action of the RO in February 
1998, service connection for mechanical low back pain was 
granted, and the veteran's claims for service connection for 
insomnia, headaches, and hip pain were later expanded to 
include undiagnosed illness suffered in the Persian Gulf as a 
basis for entitlement, with adjudication on that basis.  By 
RO action in November 2005, the veteran's mechanical low back 
pain was recharacterized as degenerative disc disease of the 
lumbar spine, without a change in the 20 percent rating 
previously assigned, and service connection was established 
for radiculopathy of the right lower extremity, secondary to 
degenerative disc disease of the lumbar spine, with 
assignment of a 10 percent evaluation therefor.

Pursuant to his request, the veteran was afforded a hearing 
before the Board, sitting at the RO, in October 2005.  At the 
time of such hearing and subsequently, the veteran submitted 
additional documentary evidence in support of his claims for 
VA benefits.  Accompanying each such presentation was a 
written waiver of initial review of such evidence by the RO.  

The issues of the veteran's entitlement to service connection 
for left epididymitis and tinea pedis of the left foot, as 
well as the issue of the initial rating to be assigned for 
major aphthous stomatitis, are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  Medical data recorded in service and thereafter denote 
that bilateral hip arthralgia with limited range of motion is 
part and parcel of the veteran's service-connected 
degenerative disc disease of the lumbar spine, previously 
described as mechanical low back pain.  

2.  Chronic insomnia began during military service of the 
veteran during the Persian Gulf War and it is a manifestation 
of an undiagnosed illness as a result of the veteran's active 
duty in Southwest Asia.

3.  There is no showing of any complaint or finding of 
headaches in service; headaches shown postservice are 
attributed to a known clinical diagnosis and competent 
evidence linking the veteran's headaches to his period of 
military service or any event thereof is lacking.  




CONCLUSIONS OF LAW

1.  Bilateral hip arthralgia with limitation of motion was 
incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 
3.303, 3.326 (2005).

2.  Insomnia, due to an undiagnosed illness, was incurred in 
service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5100, 5102, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 
3.317, 3.326 (2005).

3.  Headaches, to include as due to an undiagnosed illness, 
were not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1110, 1117, 1131, 5100, 5102, 5103, 5103A, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 3.326 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. 
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a 
duty to provide an appropriate claim form, instructions for 
completing it, and notice of information necessary to 
complete the claim if it is incomplete.  38 U.S.C.A. § 5102; 
38 C.F.R. § 3.159(b)(2).  Second, VA has a duty to notify the 
appellant of the information and evidence needed to 
substantiate and complete a claim, notice of what part of 
that evidence is to be provided by the claimant, and notice 
of what part VA will attempt to obtain for the claimant.  38 
U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet.App. 370, 
373-74 (2002); Quartuccio v. Principi, 16 Vet.App. 183, 187 
(2002).  Third, VA has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  This 
assistance includes obtaining all relevant evidence 
adequately identified in the record, and in some cases, 
affording VA examinations.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159.  Finally, VA has a duty to notify the appellant that 
he should submit all pertinent evidence in his possession.

In this case, the Board finds that there is no issue as to 
providing an appropriate application form or completeness of 
the application.  Written notice provided to the veteran by 
the RO in April 2001 advised him of the existence of the VCAA 
and its requirements.   It, too, is noteworthy that neither 
the veteran, nor his representative, challenges the 
sufficiency of that notice.  Finally, VA has secured all 
available pertinent evidence and conducted all appropriate 
development, including affording the veteran any needed VA 
medical examinations.  In all, the Board finds that VA has 
satisfied its duties under the VCAA.  

To the extent that VA has failed to fulfill any duty to 
notify and assist the appellant, the Board finds that error 
to be harmless.  Of course, an error is not harmless when it 
reasonably affects the outcome of the case.  ATD Corp. v. 
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  In this 
case, however, because there is not a scintilla of evidence 
that any failure on the part of VA to further comply with the 
VCAA reasonably affects the outcome of this case, the Board 
finds that any such failure is harmless.  While perfection is 
an aspiration, the failure to achieve it in the 
administrative process, as elsewhere in life, does not, 
absent injury, require a repeat performance.  Miles v. M/V 
Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).  

Merits of the Claims for Service Connection

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service. 
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service 
connection requires medical evidence of a current disability; 
medical, or in some cases, lay evidence of inservice 
incurrence of a disease or injury; and medical evidence of a 
nexus between the claimed inservice disease or injury and the 
current disease or injury.  Hickson v. West, 12 Vet.App. 247, 
253 (1999).

VA shall pay compensation in accordance with chapter 11 of 
title 38, United States Code, to a Persian Gulf veteran with 
a qualifying chronic disability that 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.  The term "qualifying chronic disability" 
means a chronic disability resulting from any of the 
following (or any combination of any of the following):

(1)  A medically unexplained chronic multisymptom 
illness (such as chronic fatigue syndrome, 
fibromyalgia, and irritable bowel syndrome) that 
is defined by a cluster of signs or symptoms; (2) 
any diagnosed illness that the Secretary 
determines warrants a presumption of service 
connection; (3) an undiagnosed illness in a 
veteran who exhibits objective indications of 
chronic disability resulting from an illness or 
combination of illnesses manifested by one or 
more signs or symptoms such as those listed 
below, provided that such disability 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.

For purposes of this section, disabilities that have existed 
for six months or more and disabilities that exhibit 
intermittent episodes of improvement and worsening over a 
six-month period will be considered chronic.  The six-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.

For the purposes of this section, signs or symptoms which may 
be manifestations of undiagnosed illness include, but are not 
limited to:

(1) Fatigue, (2) signs or symptoms involving the 
skin, (3) headache, (4) muscle pain, (5) joint 
pain, (6) neurologic signs or symptoms, (7) 
neuropsychological signs or symptoms, (8) signs 
or symptoms involving the respiratory system 
(upper or lower), (9) sleep disturbances, (10) 
gastrointestinal signs or symptoms, (11) 
cardiovascular signs or symptoms, (12) abnormal 
weight loss, or (13) menstrual disorders.

Compensation shall not be paid under this section if 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 if 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 
if there is affirmative evidence that the illness is the 
result of the veteran's own willful misconduct or the abuse 
of alcohol or drugs.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

The record shows that the appellant is a Persian Gulf War 
veteran and, therefore, the initial threshold criterion is 
met for service connection for disabilities under the 
provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  His 
engagement in combat with the enemy is neither alleged nor 
shown, and, as such, the provisions of 38 U.S.C.A. § 1154 
(West 2002) are not for application in this instance.  

Bilateral Hip Pain

Service medical records identify three occasions on which 
medical treatment was sought by the veteran for complaints of 
hip pain in association with his complaints of low back pain 
and other symptoms.  Tenderness and pain of the hip were 
demonstrated on objective examination, albeit without any 
defined diagnosis relating to specific pathology of either 
hip.  On the initial VA medical examination conducted in June 
1997, one month following the veteran's discharge from 
service, he complained of low back pain radiating to both 
hips.  X-rays of the hips at that time were interpreted to be 
unremarkable.  Although no diagnosis involving either hip was 
recorded at that time, further VA medical examination in May 
1998 yielded a diagnosis of arthralgias of the hips and 
lumbar spine, with limited range of motion.  His subsequent 
receipt of chiropractic care for lumbar spine pain and 
dysfunction is indicated, with associated significant pain of 
the right and left hip.  On the basis of the foregoing, the 
existence of bilateral hip arthralgia with limited motion 
cannot reasonably be found to be other than part and parcel 
of the veteran's service-connected degenerative disc disease 
of the lumbar spine, formerly characterized by VA as simply 
mechanical low back pain.  Service connection for bilateral 
hip arthralgia with limited motion is therefore found to be 
in order.  

Insomnia

Service medical records likewise denote the veteran's 
complaints of insomnia in June 1995, at which time he 
reported having had sleeping problems for the previous five 
years.  The diagnosis was of rule out insomnia related to a 
depressive disorder.  On a separation medical examination, a 
complaint of frequent trouble sleeping was set forth.  After 
service, the veteran's continued complaints of insomnia are 
documented in various examination and treatment records.  
Multiple postservice examinations by VA were attempted for 
the purpose of ascertaining whether  the veteran's headaches 
could be attributed to any existing neurological or 
psychiatric disorder, but no such link was established or 
even intimated.  A VA physician in May 1998 diagnosed chronic 
insomnia, finding that the veteran's insomnia was interfering 
with his daytime activities.  In light of such evidence in 
total, insomnia due to an undiagnosed illness is found to 
have originated in service, thereby warranting a grant of 
service connection for insomnia.  

Headaches

In terms of the veteran's claimed headaches, service medical 
records are wholly silent for any indicated complaint or 
finding thereof.  The initial complaint of headaches is shown 
postservice on the occasion of VA examinations conducted in 
May 1998, when he reported that his headaches were usually 
very mild.  He reported no routine use of analgesics, and 
noted that his headaches only became more intense once or 
twice monthly, requiring use of Tylenol or Motrin for relief.  
The diagnosis on psychiatric examination was of headaches; 
neurological evaluation culminated in entry of a diagnosis of 
very mild chronic tension type headaches.  Private emergency 
room care is shown to have been necessitated for evaluation 
of multiple complaints, including that of frontal headaches, 
in May 1998; the diagnoses were of acute pharyngitis and 
stomatitis.  Complaints of cervical spine pain and associated 
headaches were set forth by the veteran in private treatment 
notes compiled in April 2001.  

Contrary to the veteran's testimony that his headaches began 
in service, there is no showing of headaches in service or 
for more than one year following his discharge from service 
in April 1997.  Medical data do identify current disability 
involving headaches that is clinically diagnosed as very mild 
tension headaches, a known clinical entity as opposed to a 
medical indicator of undiagnosed illness.  It, too, is 
significant that no medical professional furnishes any 
finding or opinion linking the veteran's diagnosed tension 
headaches to his period of service or any event thereof.  
That being the case, it is found that a preponderance of the 
evidence is against the veteran's claim for service 
connection for headaches, to include as due to an undiagnosed 
illness.  Hickson; 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117.  


ORDER

Service connection for bilateral hip arthralgia with 
limitation of motion is granted.

Service connection for insomnia, due to an undiagnosed 
illness, is granted.

Service connection for headaches, to include as due to an 
undiagnosed illness, is denied.


REMAND

Remand is necessary to afford the RO the opportunity to 
undertake initial review of that evidence submitted in 
support of the veteran's claims of entitlement to service 
connection for left epididymitis and tinea pedis of the left 
foot, received by the RO subsequent to its issuance of its 
statement of the case in February 1998.  See 38 C.F.R. 
§ 19.31 (2005).  No supplemental statement of the case was 
ever subsequently issued at to those matters.  Remand is also 
needed for the RO's review of that evidence submitted in 
support of the veteran's claim for an initial rating for 
major aphthous stomatitis since its issuance of the most 
recent supplemental statement of the case regarding that 
issue in April 2001.  

Additional procedural development is likewise needed to 
ensure compliance with the VCAA notice requirements.  Here, 
no VCAA letter as to any of the issues remaining on appeal is 
shown to have been provided to the veteran.  

Further evidentiary development is also deemed to be in order 
as to all of the remaining issues on appeal, to include the 
retrieval of pertinent VA treatment records and the conduct 
of VA medical examinations.  

Accordingly, this portion of the appeal is REMANDED for the 
following actions:

1.  Consistent with the provisions of 38 
U.S.C.A. §§ 5100, 5103; 38 C.F.R. 
§ 3.159, the veteran must be notified in 
writing of what information and evidence 
are still needed to substantiate his 
claims for entitlement to service 
connection for left epididymitis and 
tinea pedis of the left foot, to include 
the question of whether either disorder 
is due to an undiagnosed illness, and his 
claim for an initial schedular or 
extraschedular rating in excess of 10 
percent for major aphthous stomatitis 
from April 12, 1997.  The veteran must 
also be notified what portion of any 
necessary evidence VA will secure, and 
what portion he himself must submit.  
Finally, he must be advised to submit all 
pertinent evidence not already on file 
that he has in his possession, and that, 
if requested, VA will assist him in 
obtaining pertinent treatment records 
from private medical professionals, or 
other evidence, provided that he 
furnishes sufficient, identifying 
information and authorization.  

2.  All records of VA medical treatment 
not already on file which were compiled 
at VA facilities and which pertain to the 
veteran's claimed left epididymitis, 
tinea pedis of the left foot, and major 
aphthous stomatitis must be obtained for 
inclusion in his claims folder.  

3.  Thereafter, the veteran must be 
afforded VA medical examinations by 
physicians in the specialties of 
dermatology, urology, and 
gastroenterology for the purpose of 
evaluating his tinea pedis of the left 
foot, left epididymitis, and major 
aphthous stomatitis, respectively.  The 
claims folder in its entirety is to be 
furnished to each examiner for use in the 
study of this case.  Such examinations 
are to include a detailed review of the 
veteran's history and current complaints, 
as well as comprehensive clinical 
evaluations and any and all diagnostic 
testing deemed necessary by each 
examiner.  All pertinent diagnoses must 
be set forth.  

The dermatological examiner is asked to 
provide a complete evaluation of any and 
all ulcerations of the veteran's mouth, 
as well as his claimed tinea pedis of the 
left foot.  In addition, such examiner is 
asked to provide a professional opinion 
and supporting rationale as to the 
following:  

(a)  Is it at least as likely 
as not that any current 
disability of the veteran 
involving tinea pedis of his 
left foot had its onset in 
service or is otherwise related 
to any event occurring therein?

(b)  Is the veteran's major 
aphthous stomatitis 
predominantly a skin disorder 
or a disorder of some other 
body system, and, if the 
latter, which one?  

(c)  Does the veteran's major 
aphthous stomatitis, alone, 
result in a marked interference 
with his employment?  

The examining urologist is asked to 
provide a professional opinion and 
supporting rationale as to the following:  

Is it at least as likely as not 
that any current disability of 
the veteran involving left 
epididymitis had its onset in 
service or is otherwise related 
to any event occurring therein?

The examining urologist is asked to 
provide a professional opinion and 
supporting rationale as to the following:  

Is the veteran's major aphthous 
stomatitis most closely 
analogous to a gastrointestinal 
disorder involving gastric or 
duodenal ulcers, or some other 
gastrointestinal or non-
gastrointestinal disorder, and 
if the latter, which disorder 
in 38 C.F.R. Part 4 most 
closely approximates the 
veteran's aphthous stomatitis?  

Use by each examiner of the "at least as 
likely as not" language in responding is 
required.  

4.  Lastly, the veteran's claims for 
service connection for left epididymitis 
and tinea pedis of the left foot, each to 
include as due to an undiagnosed illness, 
and for an initial schedular and 
extraschedular rating in excess of 10 
percent for major aphthous stomatitis 
must be readjudicated on the basis of all 
of the evidence of record and all 
governing legal authority.  Regarding the 
veteran's extraschedular entitlement, 
such action must include a written 
determination as to whether a referral to 
the VA's Under Secretary for Benefits or 
the Director, VA's Compensation and 
Pension Service, is warranted.  If any 
benefit sought on appeal remains denied, 
the veteran and his representative must 
be provided with a supplemental statement 
of the case, which 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 then be 
allowed for a response, before the record 
is returned to the Board for further 
review.

The veteran need take no action until otherwise notified.  
The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the AMC/RO.  Kutscherousky v. West, 12 Vet.App. 369 (1999).  
The purpose of this remand is to obtain additional 
evidentiary development and to preserve the veteran's due 
process rights.  No inference should be drawn as to the 
outcome of these actions by the actions herein requested.  



______________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs