Citation Nr: 0805332 Decision Date: 02/14/08 Archive Date: 02/20/08 DOCKET NO. 05-03 232A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the lumbar spine, claimed as due to an undiagnosed illness. 2. Entitlement to service connection for degenerative joint disease of the knees, claimed as due to an undiagnosed illness. 3. Entitlement to service connection for a disability manifested by joint pain, claimed as due to an undiagnosed illness. 4. Entitlement to service connection for a disability manifested by muscle tremors, claimed as due to an undiagnosed illness. 5. Entitlement to service connection for gout. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from March 1988 to March 1992. He had periods of Reserve service in the years thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in 2003 from the VARO in Houston, Texas, that denied entitlement to the benefits sought. FINDINGS OF FACT 1. The veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The evidence does not relate degenerative joint disease of the lumbar spine with an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War, or otherwise associate it with military service. 3. The veteran has been diagnosed with chronic low back pain with possible associated right L5 sensory radiculopathy, most likely secondary to underlying degenerative disc disease. 4. The evidence does not relate degenerative joint disease of the knees with an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War, or otherwise associate it with military service. 5. VA X-ray studies in July 2003 showed bilateral patellar spurring and some joint space narrowing. 6. The evidence does not relate joint pains with an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War, or otherwise associate joint pains with military service. 7. The evidence does not relate muscle tremors with an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War, or otherwise associate tremors with military service. 8. The evidence does not relate gout with an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War, or otherwise associate gout with military service. 9. The veteran was diagnosed with gout at the time of examination by VA in 2003. CONCLUSIONS OF LAW 1. Degenerative joint disease of the lumbar spine was not incurred in or aggravated by service, nor is it shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.317 (2007). 2. Degenerative joint disease of the knees was not incurred in or aggravated by service, nor is it shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.317 (2007). 3. A disability manifested by joint pain was not incurred in or aggravated by service, nor is it shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.317 (2007). 4. A disability manifested by muscle tremors was not incurred in or aggravated by active service, nor is it shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.317 (2007). 5. Gout was not incurred in or aggravated by service, nor is it shown to be due to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131, 1117, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has an enhanced duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The VCAA also introduced other fundamental changes into the VA adjudication process. It eliminated the requirement under the old 38 U.S.C.A. § 5107(a) (West 1991) that the claimant must present a well-grounded claim before the duty to assist is invoked. A review of the evidence in this case reveals that by rating decision dated in December 1998, among other things, service connection for joint pain of the body and for knee problems were denied as not well grounded. The current claim for disability benefits was received in October 2002. The RO has developed the claim on a de novo basis without reference to well groundedness and the Board agrees with the approach of the RO in treating all the claims at issue, including those for service connection for a disability manifested by joint pain and a disability manifested by a bilateral knee disability, on a de novo basis. Upon receipt of a complete or substantially complete application for benefits, the VA is required to notify a claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with the provisions of 38 C.F.R. § 3.159(b)(1). The veteran was sent VCAA notice letters in June 2003 and in May 2005. These communications provided him with general information of the evidence not of record that was necessary to substantiate his claims and identified which parties were expected to provide such evidence. He was told of the need to give to VA any evidence pertaining to his claims. He was informed that VA has a Gulf War Information Center and he was told how he could contact the facility for information on issues concerning Gulf War veterans. The Board notes that what the VCAA essentially seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done, regardless of whether it has been done the way of a single notice letter, or by way of more than one communication, the essential purposes of the VCAA have been satisfied. The veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date by correspondence from VA, but any question as to the appropriate disability rating or effective date to be assigned is moot as the claim is being denied. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the veteran has not claimed that the VA has failed to comply with the notice requirements of the VCAA. Further, the revised VCAA duty to assist requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. See 38 C.F.R. § 3.159. The veteran was accorded examinations by VA in 2003. Further, he and his wife had the opportunity to provide testimony with regard to his claims before a decision review officer at the Houston RO in September 2005. Additionally, the veteran and his wife gave testimony before the undersigned at a video conference hearing in August 2007. The transcripts of the hearing proceedings are of record and have been reviewed. In view of the foregoing, the Board finds that the duties to notify and assist the veteran as required by the VCAA have been fulfilled. Pertinent Laws and Regulations 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. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Compensation may be paid to a Persian Gulf veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or a 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 following such service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection may be granted when the evidence establishes: (1) that he is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or a combination of illness manifested by one or more signs with symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which 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; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. The Board notes that the statutory delimiting date is different than the regulatory date. To qualify for compensation under the provisions, "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War. The "Southwest Asia Theater of Operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the air space above these locations. 38 C.F.R. § 3.117(d)(1)(2) (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or when a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the case of any veteran who engaged in combat with the enemy in active service with the military, naval, or air organizations of the United States during a period of war, campaign, or expedition, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b). Factual Background and Analysis In essence, the veteran maintains that he has back problems, knee difficulties, joint pains, muscle tremors, and gout that are related to his service in the Persian Gulf. However, after a review of the claims file, the Board finds that the evidence does not support the claims based on undiagnosed illness. The Board notes that at the time of examination by VA in July 2003, complaints with regard to the back and knees were attributed to known diagnoses. The veteran complained of progressive pain in both knees, but an X-ray study in July 2003 showed bilateral patellar spurring, small bilateral effusions, and medial joint space narrowing. With regard to the back, a diagnosis was made of degenerative joint disease of the lumbar spine with mild symptomatology. Additionally, a diagnosis was made the time of that examination of gout. Accordingly, there is no basis for the claims that a back disability, a knee disability, joint pain, and gout are due to an undiagnosed illness occasioned by service in the Persian Gulf. In other words, the relevant medical evidence establishes that the veteran does not have undiagnosed illnesses manifested by joint pain or gout. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. To the extent that these claimed disorders have been diagnosed, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not for application. Next, to the extent that the veteran claims a disability manifested by muscle tremors, at the time of the examination by VA in July 2003, a notation was made of intermittent muscle fasciculations involving the right eyelid and the right upper extremity with no associated neurologic deficits. The examiner stated there were no associated symptoms such as sensory changes, muscle weakness, and so forth. Neurologic examination at that time was negative for any abnormality except for the fasciculations and the examiner stated no clear etiology could be determined. The veteran was accorded magnetic resonance scan of the brain as a result and the impression was normal. With regard to claims for direct service connection, then, the Board notes that there must be a current disability. While the veteran is competent to report his symptoms, Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not a medical professional and he is not competent to make a diagnosis that requires medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay persons are not competent to offer evidence that requires medical knowledge). Far more probative is the report of medical history of the time of reenlistment examination in the Reserves in October 1996. The veteran stated he was in good health. He denied ever having had any of the symptoms of disabilities he now claims are attributable to his active service, particularly his time in the Persian Gulf. In the report of medical history, the only complaint he made was to having had or having broken bones. However, these were attributed to a fractured jaw in 1986 and it was indicated there were no sequelae. Clinical evaluation at that time was entirely unremarkable, except for notation of tattoos and various scars. The initial documentation of the presence of a disability involving the back, the knees, and gout was not until the examination by VA in 2003, a time several years following service discharge. The Board finds that the absence of complaints or treatment or evaluation for a length of time is more reliable than the veteran's own assertions in support of his claims for VA disability compensation. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (absence of medical complaints for condition can be considered as a factor in resolving the claim). As there is no objective evidence of service origin or competent opinion linking any of the claimed disabilities to military service, the Board denies the claims for service connection for joint disease of the lumbar spine, joint disease of the knees, a disability manifested by joint pain, a disability manifested by muscle tremors, and gout on a direct basis. ORDER Service connection for degenerative joint disease of the lumbar spine, claimed as due to an undiagnosed illness is denied. Service connection for degenerative joint disease of the knees, claimed as due to undiagnosed illness is denied. Service connection for a disability manifested by joint pain, claimed as due to an undiagnosed illness is denied. Service connection for a disability manifested by muscle tremors, claimed as due to an undiagnosed illness is denied. Service connection for gout is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs