Citation Nr: 0713620 Decision Date: 05/09/07 Archive Date: 05/17/07 DOCKET NO. 03-04 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for acne keloidalis nuchae. 2. Entitlement to service connection for a dental condition. 3. Entitlement to service connection for joint and muscle pain, claimed as fibromyalgia, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness. 5. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant/Veteran ATTORNEY FOR THE BOARD Kristi Barlow, Counsel INTRODUCTION The veteran served on active duty from June 1978 to August 1992, including honorable service in the Southwest Asia theater of operations during the Persian Gulf War from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, among other things, denied the benefits sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has acne keloidalis nuchae that did not begin during service or as a consequence of service. 3. The veteran entered service with no missing teeth. He experienced trauma to the mouth which required treatment to tooth number ten. 4. The veteran does not have a disorder of the joints or muscles related to his period of service in the Persian Gulf or to his period of active service as a whole. 5. The veteran is not diagnosed as having fibromyalgia. 6. The veteran has mild sleep apnea. 7. The veteran is not diagnosed as having chronic fatigue syndrome nor any other fatigue related to his period of service in the Persian Gulf or to his period of active service as a whole. CONCLUSIONS OF LAW 1. Acne keloidalis nuchae was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). 2. Disability due to dental trauma to tooth number ten was incurred in active service. 38 U.S.C.A. §§ 1110, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.381 (2006). 3. Joint and muscle pain, to include fibromyalgia, was not incurred in service or presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2006). 4. A sleep disorder was not incurred in service or presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2006). 5. Fatigue, to include chronic fatigue syndrome, was not incurred in service or presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in April 2003 and September 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his claims of entitlement to service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the veteran to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided to the veteran in March 2006. Accordingly, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the appealed AOJ decision was pending at the time the VCAA was enacted and, as such, notice prior to that decision was not possible. The Court acknowledged in Pelegrini that some claims were pending at the time the VCAA was enacted and that proper notice prior to the initial AOJ decision was impossible. The Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any AOJ action or decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based and the Board specifically finds that the veteran was not prejudiced by the post-AOJ decision notice because he was given sufficient time to submit and/or identify any and all evidence necessary to substantiate his claims. Additionally, a Supplemental Statement of the Case was issued in August 2006, making all notices pre-decisional as per Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him physical examinations, and by affording him the opportunity to give testimony before a Decision Review Officer in November 2004. The veteran did not elect to have a hearing before the Board. The RO made numerous attempts to obtain the veteran's service medical records from the National Personnel Records Center upon the veteran's submission of his claims. In June 2002, however, the veteran advised VA that he was given his service medical records upon discharge and he turned them over to the Temple VA Medical Center (VAMC) when he first sought treatment at that facility. In August 2002, the Temple VAMC advised that they did not have the veteran's service medical records. In May 2006, the RO made a Formal Finding of Unavailability of Service Records. Thus, it appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file. Although the veteran has requested that VA give more weight to his post-service assertions because his service medical records cannot be located, he does not appear to contend that available records relevant to the claims on appeal have not been associated with his claims folder. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The merits of his claims will now be addressed. The veteran contends that he developed a rash on his head from wearing a flight helmet regularly during service, that he lost two teeth while playing basketball during service, and that he experiences joint and muscle pain, sleep problems and fatigue as results of his service in the Persian Gulf during his tour in late 1990 into 1991. The veteran specifically stated in February 2005 that he wanted his claims of entitlement to service connection for joint and muscle pain to be evaluated collectively as fibromyalgia due to an undiagnosed illness. Skin Disorder The veteran submitted an application for VA compensation benefits in August 2000 and listed "rash to head (PGW syndrome)" as one of the claimed disabilities. At his hearing before a Decision Review Officer in November 2004, however, he testified that he first noticed a rash on his head in 1987 that he believed to be a result of wearing a flight helmet on a regular basis that had a foam insert that basically rotted on his head. He stated that he first sought treatment in 1989 and that he currently experienced a rash intermittently, particularly in the hot months of the summer. As such, the veteran appears to have abandoned any claim of a skin disorder developing as a result of his service in the Persian Gulf. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is to be established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. There are no service records to show whether the veteran was diagnosed as having a rash on his head in 1989 so the Board will assume, for the sake of argument only, that the veteran was treated for such a rash. Thus, in order for service connection to be granted for this disability, there must be evidence linking the current diagnosis of acne keloidalis nuchae, rendered upon VA examination in October 2000, to the veteran's 1989 treatment. Post-service treatment records do not include any complaints of or treatment for a rash on the head to show a continuity of symptomatology from 1989 to the present. The first indication of the veteran having a rash on his head is his application for benefits received in 2000, slightly over ten years following the in-service treatment and eight years after discharge from the service. The veteran provided a letter from his wife in October 2000 reflecting her recollection of the veteran having difficulty sleeping, joint soreness and a left foot disability, but she did not mention anything about a rash on the veteran's head. Given the evidence as outlined above, the Board finds that there is no medical evidence to support the veteran's claim that his current skin disorder began during service or as a consequence thereof. His assertion that he developed a rash from wearing a helmet during service is certainly plausible, but absent medical evidence showing that the rash was chronic in nature or that it continued following service until it was diagnosed in 2000, service connection for the current skin disorder cannot be granted. The only evidence in support of the veteran's claim is his own statements, including conflicting assertions regarding etiology. Consequently, the Board must find that those statements, standing on their own, are insufficient to establish a relationship between a disorder treated during service and a currently diagnosed disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (Laypersons are not competent to offer medical opinions). As such, service connection for acne keloidalis nuchae is denied. Dental Disability The veteran contends that he was elbowed in the mouth playing basketball during service in Korea and broke two teeth. He testified before the Decision Review Officer that he had to have the teeth removed and crowns placed. The veteran did not identify which two teeth were injured as a result of the in-service dental trauma. The only service medical record available is the veteran's November 1977 entrance examination showing that he had all of his teeth upon entering service. Dental records dated one month after the veteran was discharged from service shows that a crown on tooth number ten had to be removed because the root was fractured and non-restorable. There is no mention of any dental problems other than to tooth number ten. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. In determining service connection for treatment purposes, VA considers each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in the line of duty during active service. When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. See 38 C.F.R. § 3.381(a) and (b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Given the evidence as outlined above, the Board finds that the veteran entered service with all of his teeth. Upon leaving service, however, he had a crown on tooth number ten as evidenced by the need to remove it within one month of his discharge. Thus, when resolving all reasonable doubt in favor of the veteran, the Board finds that he experienced dental trauma to tooth number ten during service. Although he credibly testified that he cracked two of his teeth during service, there is no evidence showing trauma and/or dental work present upon discharge from service with respect to any other tooth. As such, service connection is granted for the residuals of dental trauma to tooth number ten only. Persian Gulf War Syndrome Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). The veteran seeks service connection for various disabilities claimed to be the results of possible exposures during his period of service in the Persian Gulf. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Benefits Act," which was Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute, in part, added a new section 1117 to Title 38, United States Code. Section 1117 authorized VA to compensate any Persian Gulf veteran experiencing a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which 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 presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. In establishing the presumptive period, the Secretary was to review any credible scientific or medical evidence, the historical treatment afforded other diseases for which service connection is presumed, and other pertinent circumstances regarding the experience of Persian Gulf veterans. In February 1995, VA implemented the Persian Gulf War Veterans' Act by adding 38 C.F.R. § 3.317, which defines qualifying Gulf War service, establishes the presumptive period for service connection, and denotes a broad but non- exclusive list of signs or symptoms which may be representative of undiagnosed illnesses for which compensation may be paid. In the original version of 38 C.F.R. § 3.317, the presumptive period during which a veteran had to experience manifestations of a chronic disability was two years after the date on which he/she last performed active service in the Southwest Asia theater of operations during the Gulf War. In April 1997, VA published an interim rule that extended the presumptive period to December 31, 2001. This extension of the presumptive period was adopted as a final rule in March 1998, and on October 21, 1998, Public Law 105-277, Section 1602(a)(1) added 38 U.S.C.A., Section 1118, which codified the presumption of service connection for an undiagnosed illness. In November 2001, VA issued an interim final rule which amended 38 C.F.R. Section 3.317(a)(1)(i) to expand the presumptive period from December 2001 to December 2006. This interim rule became effective November 9, 2001. On December 27, 2001, President Clinton signed into law the "Veterans Education and Benefits Expansion Act of 2001." This legislation amended various provisions of 38 U.S.C.A. §§ 1117 and 1118, including a complete revision of Section 1117(a), which now provides as follows: (1) The Secretary may pay compensation under this subchapter to a Persian Gulf veteran with a qualifying chronic disability that became manifest- (A) during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or (B) to a degree of 10 percent or more during the presumptive period prescribed under subsection (b). (2) For purposes of this subsection, the term 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): (A) An undiagnosed illness. (B) 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. (C) Any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants a presumption of service-connection. Section (c)(1) of 1117 was amended to change some language specific to undiagnosed illness, without substantively changing the provision. A whole new subsection (g) was added to Section 1117, as follows: (g) For purposes of this section, signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include the following: (1) Fatigue. (2) Unexplained rashes or other dermatological signs or symptoms. (3) Headache. (4) Muscle pain. (5) Joint pain. (6) Neurological signs and symptoms. (7) Neuropsychological signs or symptoms. (8) Signs or symptoms involving the upper or lower respiratory system. (9) Sleep disturbances. (10) Gastrointestinal signs or symptoms. (11) Cardiovascular signs or symptoms. (12) Abnormal weight loss. (13) Menstrual disorders. In addition, 38 U.S.C.A. Section 1118(a) was amended to add a paragraph including the signs and symptoms of Section 1117(g) as manifestation of an undiagnosed illness. The effective dates of all of the cited amendments is March 1, 2002. See also 66 Fed. Reg. 56,614, 56,615 (Nov. 9, 2001) (to be codified at 38 C.F.R. § 3.317(a)(1)(i)). A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, and disability out of proportion to physical findings. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(1)(ii). Furthermore, for the purposes of 38 C.F.R. § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving 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, (13) menstrual disorders. See 38 C.F.R. § 3.317(b). The evidence of record clearly shows that the veteran served in the Southwest Asia theater of operations during the Persian Gulf War. Thus, he has qualifying service for consideration of the presumption of service connection for disabilities medically attributed to undiagnosed illness or an unexplained chronic multisymptom illness. Upon VA examination in October 2000, the veteran complained of having insomnia when serving in the Gulf in 1991; he stated that fatigue and bilateral shoulder pain began in 1996. At that time, the veteran did not have complaints of generalized joint or muscle pain. Upon examination, there were no abnormal findings related to the bones or joints and he had a normal examination with respect to fatigue. In December 2000, the veteran participated in a sleep study. He slept over four hours during the testing and was found to have mild sleep apnea. There was no aspect of his sleep complaints related to service or to an undiagnosed illness or an unexplained chronic multisymptom illness. At the veteran's personal hearing in November 2004, he testified that he was not engaged in combat with the enemy during service in the Persian Gulf and did not experience any of his current symptoms during service. He stated that sleep problems, muscle and joint pain, and fatigue all began in the summer of 1994. The veteran testified that he did not have constant pain in his joints, but had intermittent pain in his neck, shoulders, knees, ankles, elbows and low back; his muscle pain was primarily in his thighs. He stated that he only slept about two hours per night and was tired during the day, that his fatigue limited his ability to perform his duties as a mail carrier in a timely fashion. The veteran testified that he did not participate in any treatment at VA. The veteran began treatment at VA in 2005 primarily for his service-connected left ankle disability that required a second arthroscopic surgery. Treatment records and examination reports dated in 2005 and 2006 show that the veteran is a full-time mail carrier who carries a forty pound sack and walks eight miles per day. He complained that his left ankle caused him to have difficulty performing his duties in a timely fashion (without mention of a possible fatigue syndrome) and that his medications kept him awake (without mention of a history of self-diagnosed insomnia and physician diagnosed sleep apnea). Upon Persian Gulf War VA examination in April 2005, the veteran complained of having sleep problems since he first arrived in the Gulf in 1990, having joint pains in his shoulders, hips and back since 1996, having joint pain in all of his joints at the time of the examination, and of experiencing fatigue, weakness, memory loss, lack of concentration and headaches since 2000. All of the veteran's complaints were listed and the examining physician's assistant reported that she would defer to the veteran's primary care physician regarding diagnoses. The veteran's treatment records do not contain any treatment for joint or muscle weakness and/or pain and there is no diagnosis of fibromyalgia. The veteran is diagnosed as having mild sleep apnea, but does not participate in any treatment for that disability. His treatment records are void of any finding with respect to fatigue and there is no diagnosis of a chronic fatigue syndrome. Given the evidence as outlined above, the Board finds that there is no evidence of joint and muscle pain and/or fatigue in and of itself being a result of the veteran's active service. There is no diagnosis of a joint or muscle disorder other than the shoulder and ankle disabilities that have been evaluated and determined to be degenerative disorders due to physical injuries. Therefore, there is no disability for which service connection may be awarded on a direct basis. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (absent a disease or injury incurred during service, the basic compensation statutes cannot be satisfied). Additionally, there is no diagnosis of fibromyalgia or of a chronic fatigue syndrome. Although the veteran certainly complains here of signs or symptoms which are often shown to be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness, the medical evidence does not include treatment for any such complaints. Therefore, absent medical evidence that the veteran has signs or symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness, service connection for joint and muscle pain and fatigue, to include fibromyalgia and chronic fatigue syndrome, must be denied. As for the veteran's sleep disorder, the Board finds that the veteran is currently diagnosed as having mild sleep apnea. There is no suggestion in the medical record that complaints of sleep problems are associated with an undiagnosed illness or a chronic multisymptom illness. The complaints regarding sleep are found to be results of a diagnosed sleep disorder that was not incurred during service or as a consequence of service. Therefore, service connection for a sleep disorder is also denied on a direct and on a presumptive basis. (CONTINUED ON NEXT PAGE) ORDER Service connection for acne keloidalis nuchae is denied. Service connection for the residuals of dental trauma to tooth number ten is granted for treatment purposes. Service connection for muscle and joint pain, claimed as fibromyalgia, to include as due to undiagnosed illness, is denied. Service connection for a sleep disorder, to include as due to undiagnosed illness, is denied. Service connection for fatigue, to include as due to undiagnosed illness, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs