Citation Nr: 0807950 Decision Date: 03/07/08 Archive Date: 03/17/08 DOCKET NO. 03-27 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for headaches due to an undiagnosed illness. 2. Entitlement to service connection for fatigue, claimed as due to an undiagnosed illness. 3. Entitlement to service connection for multiple joint pain, claimed as due to an undiagnosed illness. 4. Entitlement to service connection for hypersomnia, claimed as due to an undiagnosed illness. 5. Entitlement to service connection for a depressive disorder, claimed as due to an undiagnosed illness. 6. Entitlement to service connection for a decreased libido, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from November 1973 to February 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board previously issued a decision in this case in February 2006 denying the veteran's claims. He appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion, a September 2007 Court Order vacated the Board's February 2006 decision and remanded the case for readjudication consistent with directives specified in the Joint Motion. After receiving the case back from the Court, the veteran's attorney submitted additional evidence to the Board in January 2008. She waived the right to have the RO initially consider this additional evidence. See 38 C.F.R. §§ 20.800, 20.1304(c). Nevertheless, to comply with the Court's Order, the Board is remanding the veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND Aside from his headaches, which are already service connected, the veteran alleges he has chronic fatigue, multiple joint pain, hypersomnia, a depressive disorder, and decreased libido as manifestations of undiagnosed illness resulting from his service in Operation Desert Shield/Desert Storm. He is a Persian Gulf War veteran, having served in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e); 38 C.F.R. § 3.317(d). For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military 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, 2011, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(b). For purposes of section 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). In addition, under section 3.317, the term "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, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "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. 38 C.F.R. § 3.317(a)(3). For purposes of § 3.317, 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. 38 C.F.R. § 3.317(a)(4). As pointed out in the Joint Motion, in the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, there is no requirement that there be competent evidence of a nexus (i.e., link) between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. Id. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). As the Court also acknowledged in Gutierrez, however, this presumption is rebuttable if there is affirmative evidence that an undiagnosed illness was not incurred in service or was instead caused by a supervening condition. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known clinical diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA is not generally authorized to grant service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The notable exception to this rule is 38 C.F.R. § 3.317, which permits, in some circumstances, service connection of signs or symptoms that are objective indications of chronic disability, even though such disability is due to undiagnosed illness. What is important is whether a symptom is a manifestation of a syndrome that (1) is a clinical diagnosis accepted by VA and (2) is shown by the evidence to be the result of service. If so, service connection may be granted under 38 C.F.R. § 3.303(d). If not, service connection must be considered under 38 C.F.R. § 3.317. In the latter case, service connection may not be granted if the symptom is a manifestation of a disability attributable to a "known clinical diagnosis." In this particular case at hand, the medical evidence reflects complaints and findings of fatigue, multiple joint pain, sleep impairment to include hypersomnia, a depressive disorder - not otherwise specified, and decreased libido. But questions abound as to whether these complaints are due to undiagnosed illness from the veteran's Persian Gulf War service or, instead, are attributable to known clinical diagnoses from disabilities that were not incurred in service or, instead, were caused by a supervening condition. A November 1995 report of Comprehensive Clinical Evaluation Program (CCEP), conducted approximately 21 months after the veteran's discharge from service, notes complaints of multiple joint pain in his shoulders, elbows and left hip. Concerning other complaints of fatigue, the examiner indicated the veteran had depressive symptoms of decreased libido, loss of interest in usual activities, frequent thoughts regarding perceived illness, and that he felt depressed frequently. It was noted he began experiencing these symptoms in 1992. During the objective physical portion of that evaluation, there were indications of crepitus in his shoulders and elbows. X-ray examination revealed normal shoulders and hips. The assessment included a notation that his fatigue may be due to abnormal sleep pattern, but that he had multiple neurovegetative symptoms of depression. A December 1995 report of a mental health consultation notes complaints of fatigue, hypersomnia, decreased libido and feelings of being depressed and/or thoughts of death resulting from perceived illness. The veteran had a Gulf War protocol examination in connection with his claims in April 2003. The mental health examination report reflects that his symptoms were diagnosed as depressive disorder, not otherwise specified. Similarly, the general medical examination included diagnoses of left hip bursitis, old healed fracture of the right hand metacarpal, and history of tendonitis of the shoulders (normal examination). The examiner noted the veteran's complaints of fatigue, multiple joint pain, hypersomnia, decreased libido, and depression and commented that he "... in no ways resembled pathologic fatigue, only poor rest secondary to poor sleep." The examiner added that no undiagnosed illness, secondary to the veteran's Gulf War service, was suspected at the time of that examination. However, no diagnostic impressions were provided regarding the veteran's sleep complaints or decreased libido. In this regard, it is noted that the examination report includes diagnoses referable to the veteran's cervical and lumbar spine; however, service connection for these joints has already been established. So to the extent he has joint pain in his low back from the service-connected degenerative disc disease (or any associated radiculopathy in his lower extremities) and in his neck as a residual of a service-connected cervical spine fracture, this is not at issue in this appeal. Neither is there any present concern about any pain the veteran may have in his knees since the RO already denied his claim for a bilateral knee condition, and that claim is not on appeal. 38 C.F.R. § 20.200. Moreover, he also has been granted service connection for residuals of a left iliac crest donor bone graft associated with a left great toe fracture, for residuals of a nasal fracture, and for a scar from a right Achilles tendon rupture. So to the extent any complaints of joint pain are associated with these disabilities, he is already service connected for them, too. The multiple joint pain at issue specifically concerns the veteran's shoulders and elbows. See the transcript of his December 2003 hearing testimony, at page 10. The additional treatment records the veteran's attorney recently submitted on his behalf in January 2008 reflect complaints that included generalized pain radiating from his back, neck, knees, and elbows. But as for the pain in his elbow (the left one in particular), according to a September 2007 radiology report, this pain was from a recent injury - that same month, to his left radial and humerus while lifting weights, so not due to undiagnosed illness caused by his service in the Persian Gulf War. Moreover, these X-rays showed no fracture or joint effusion, and the elbow joint space was well preserved, so no objective clinical indications of arthritis. The only abnormality seen was an olecranon spur on the left elbow, but February 2007 X-rays of the right elbow revealed the veteran also had an olecranon spur on that elbow as well, so it appears the spurs - not undiagnosed illness from his Persian Gulf War service, are accounting for his bilateral elbow pain. These additional treatment records contain other noteworthy findings. September 2007 X-rays of the left humerus showed no signs of fracture or dislocation; the joint spaces were well preserved; mineralization was good; and no radiopaque foreign body was seen. The impression was normal humerus. July 2007 X-rays of the lumbar spine revealed spondylosis and scoliosis; there was otherwise a normal lumbar spine. July 2007 X-rays of the cervical spine revealed cervical spondylosis; the examination was otherwise normal. July 2007 X-rays of the left hip were normal, too, as were February 2007 X-rays of the left knee. These additional records also reflect the veteran has undergone sleep studies which revealed he has sleep apnea, a known clinical diagnosis. His doctor prescribed a continuous positive airway pressure (CPAP) machine to help him sleep better. In November 2007 he was seen for an acute exacerbation of his psychiatric-related symptoms. Depression, not otherwise specified (NOS), was one of the provisional diagnoses. He reportedly had been doing okay until having to spend about a month with his grandchildren; he could not deal with the way they were acting and was afraid he would hurt them, so he sent them back and had not talked to them since. He apparently had run out of medication about one month earlier. He also had felt out of control in other situations, so angry on one occasion that he had bitten the inside of his lip and on another when he suddenly went and got his shotgun while talking to a guy. Other documented medical problems included impotence, but of organic origin. So there appears to be an underlying physiologic basis to explain this disorder (and the decreased libido), rather than undiagnosed illness from the veteran's Persian Gulf War service. The veteran also was seen at various times during 2007 for treatment of his persistent, recurring headaches. However, although this condition was service connected on the premise that it is due to undiagnosed illness from his Persian Gulf War service, the records of this treatment during June 2007 effectively trace the condition back to 1974 or 1975 when he boxed in the Marines Corps due to the repeated head trauma he sustained in that capacity. In the diagnoses, it was indicated he had migraine headaches that had over the past few years been transformed into chronic daily headaches. It was further indicated these headaches should be classified as "post-traumatic" migraines (apparently referring to the boxing), so presumably rather than due to undiagnosed illness from service during the Persian Gulf War. The evaluating physician encouraged the veteran to keep a diary of his headaches insofar as when they occur and how long they last, and he was instructed to bring the diary with him when seen in the clinic again for further evaluation in 6-8 weeks. In the meantime, he also was encouraged to take up conditioning swimming to help relieve his headaches and to cut down on some of his medication (the analgesics). As well, he partly attributed his inability to sleep due to the pain from his headaches - that is, aside from the sleep apnea already mentioned. One of the claims at issue is whether the veteran is entitled to an initial rating higher than 30 percent for his headaches, and this is determined by the severity and frequency of them (whether they are completely prostrating and prolonged) - including in terms of whether they result in severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. There is conflicting evidence concerning this dispositive issue. During his April 2003 VA examination, the veteran said he never had to miss work because of his headaches. Whereas during his December 2003 hearing, and according to these additional medical treatment records his attorney recently submitted, he claims they have caused him to miss work three or four times per week, occur daily, and make him feel as though his head is going to explode. Given that the last compensation examination was in April 2003, nearly five years ago, another VA examination and opinion are needed to assess the current severity of these headaches. See, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old and inadequate to evaluate the current state of the condition, VA must provide a new examination). As also indicated, it is unclear whether the veteran's other claimed disorders are symptoms of one disorder (his sleep impairment, which in turn is the result of joint pain, causes a decrease in his libido (or outright impotence), and resulting depression and fatigue) or whether, instead, they are manifestations of independent disabilities. It is also unclear if some of his symptoms are manifestations of already service-connected disabilities. And there remains the matter of whether they are due to undiagnosed illness. So additional medical comment is needed concerning this, too. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). There are a couple of other points worth mentioning. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), which held that the Veterans Claims Assistance Act (VCAA) notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the downstream degree of disability and the effective date of an award. The veteran has not received Dingess notice concerning these downstream elements of his claims and should before deciding his appeal to avoid any chance of unduly prejudicing him. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. Sept. 17, 2007) (Mayfield IV). Even more recently, in Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008), the Court provided additional guidance with respect to notice requirements for increased- rating claims. Specifically, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires the Secretary of VA to notify the claimant of the following in an increased-rating claim: (1) the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from zero percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, although the veteran was provided notice of the specific criteria for evaluating his headaches in the August 2003 statement of the case (SOC) and in the Board's February 2006 decision (since vacated), in light of the other need to remand his claims for further development, he also must be provided an additional letter which complies with the notice requirements outlined in Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). Accordingly, this case is REMANDED for the following additional development and consideration: 1. Prior to any further adjudication of the claims on appeal, send the veteran another VCAA letter which is consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and includes an explanation of the information or evidence concerning the downstream disability rating and effective date elements of his claims, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). This letter also must include an explanation of the requirements to substantiate his claim for an increased rating for his headaches, as recently outlined by the Court in Vazquez-Flores v. Peake, No. 05- 355 (U.S. Vet. App. Jan. 30, 2008). 2. Schedule the veteran for another Persian Gulf War protocol examination. The claims file, including a complete copy of this Remand, must be made available to the physician(s) designated to examine the veteran for his pertinent medical and other history. The report of the examination(s) should include discussion of his documented medical history and assertions. All appropriate tests and studies and/or consultation(s) should be accomplished (with all findings made available to the examiner(s) prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct a comprehensive medical evaluation and provide details about the onset, frequency, duration, and severity of the veteran's symptoms. a. In particular, concerning the veteran's complaints of fatigue, multiple joint pain (but limited to his shoulders and elbows), hypersomnia, depressive disorder (NOS), and decreased libido, the designated examiner(s) should specifically state whether any of these complaints or symptoms are attributable to a known clinical diagnosis (e.g., sleep apnea causing the fatigue and hypersomnia, spurs causing the pain in the elbows, etc.). This also includes indicating whether these complaints and symptoms are manifestations of already service-connected disabilities (e.g., pain in the shoulders as a residual of the service-connected cervical spine fracture) If there is a known clinical diagnosis that can be medically explained (such as an underlying pathologic basis to explain, for example, the decreased libido and even impotence and depression), the examiner should expressly indicate these underlying diagnoses. The examiner also should offer an opinion as to whether it is at least as likely as not (meaning 50 percent or more probable) that the diagnosed disability is related to the veteran's military service. b. If, on the other hand, the veteran suffers from any signs or symptoms that are determined not to be associated with a known clinical diagnosis, the examiner should indicate whether any such condition meets the regulatory definition of either an undiagnosed illness or a medically unexplained chronic multisymptom illness. A complete rationale for all opinions expressed must be provided. If the physician is unable to render any opinion sought, it should be so indicated on the record and the reasons therefor should be noted. The factors upon which any medical opinion is based must be set forth for the record. 3. Also schedule the veteran for a VA examination to determine the current severity and impairment from his headaches. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary testing and evaluation should be performed. The examiner should determine the frequency and severity of the veteran's headaches, specifically indicating whether they are completely prostrating and involve prolonged attacks, in turn, causing severe economic inadaptability such as the need to take substantial sick leave from work. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable. If the evaluating physician is unable to render any opinion sought, it should be so indicated on the record and the reasons therefor should be noted. The factors upon which any medical opinion is based must be set forth for the record. 4. Then readjudicate the claims in light of the additional evidence. If any of the claims are not granted to the veteran's satisfaction, send him and his attorney a supplemental statement of the case and give them time to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).