Citation Nr: 0835289 Decision Date: 10/15/08 Archive Date: 10/27/08 DOCKET NO. 06-10 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for "Gulf War Syndrome". 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for a disability of the nervous system. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a lumbar spine disability. 6. Entitlement to service connection for a gastric disability. 7. Entitlement to service connection for a liver disability. 8. Entitlement to service connection for a kidney disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from June 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions dated in June 2005 and February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2007, the veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. In December 2007, the veteran submitted additional evidence directly to the Board unaccompanied by a signed written waiver of the RO's initial consideration of this additional evidence. This evidence was a medical opinion letter from the veteran's private treating physician. In September 2008, the veteran's representative submitted a waiver for this additional evidence. A decision on the appeal of the denial of service connection for Gulf War Syndrome is below. The remaining issues on appeal are addressed in the REMAND portion of the decision and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's active duty service does not include a period of service in Southwest Asia during the Persian Gulf War. 2. Gulf War Syndrome is not a disability within the meaning of pertinent laws and regulations for which compensation may be awarded. CONCLUSION OF LAW Symptoms collectively claimed as "Gulf War syndrome" were not incurred in or aggravated by active service nor may they be presumed to have incurred during active service. 38 U.S.C.A. §§ 101, 1110, 1117 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.2, 3.303, 3.307, 3.309, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Letters dated in April 2004, August 2004, September 2004, April 2005, March 2006, and July 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The April 2004, August 2004, September 2004, July 2006 letters told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet App. at 120. The March 2006 and July 2006 letters advised the veteran of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although some of these letters were not sent prior to initial adjudication of the veteran's claims, this was not prejudicial to him, since he was subsequently provided adequate notice, the claims were readjudicated, and a supplemental statement of the case (SSOC) was provided for the remaining issues of appeal in February 2007. The veteran's service medical records and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record also indicates that the veteran either receives Social Security Administration (SSA) disability benefits or had filed for such benefits. However, the duty to obtain records only applies to records that are "relevant" to the claim. 38 U.S.C.A. § 5103A(b)(1); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). The veteran has not contended that he was awarded SSA benefits for the disabilities at issue in this case. There is no indication, then, that the records would be relevant to these claims. Also, what is "of consequence" in this case is whether the veteran's current disabilities are related to his military service, and more specifically, to exposure to chemicals while at Edgewood Arsenal, and there is no indication that Social Security records would include any such information. Remanding the case to obtain such records would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The veteran was also accorded a VA general medical examination in February 2005. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Gulf War Syndrome The veteran filed a claim of service connection for Gulf War syndrome and the RO adjudicated that specific issue. He contends that he suffers from symptoms consistent with Gulf War Syndrome as a result of his participation in a biochemical program at Edgewood Arsenal in 1972. He has asserted that he was exposed to the same types of chemicals that other service men and women were exposed to in Southwest Asia during Operation Desert Shield and Operation Desert Storm. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). VA is authorized to compensate any Persian Gulf veteran suffering from 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 Asian theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117. The Persian Gulf War is the period beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law. See 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i). The Board finds that this claim must be denied because Gulf War syndrome cannot properly be considered a "disability" for purposes of VA benefits. See, e.g., 60 Fed. Reg. 6660, 61 (Feb. 3, 1995) ("Persian Gulf Syndrome" is not a disease entity currently recognized by VA or commonly accepted within the medical community). Furthermore, to the extent the veteran raises the theory of entitlement to service connection under the provisions pertaining to undiagnosed illnesses (38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317), the Board observes that the veteran's period of active service was from June 1972 to August 1974 and not during the Persian Gulf War; thus, he is not a Persian Gulf War veteran as he did not serve 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). Therefore, to the extent that the veteran is separately seeking service connection for "Gulf War Syndrome," this claim must be denied as a matter of law, as the veteran is not a veteran of the Persian Gulf War and the claim for service connection for Persian Gulf Syndrome does not reference a particular disability for which VA compensation may be paid. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). Therefore, the claim of service connection for Gulf War Syndrome must be denied as a matter of law. ORDER Entitlement to service connection for "Gulf War Syndrome" is denied. REMAND The record reflects that the veteran is either receiving disability benefits from the Social Security Administration (SSA) or has filed for benefits. The conditions upon which such benefits were awarded are not evident from the record. VA is required to obtain evidence from SSA, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Accordingly, on remand, the RO or AMC should make appropriate efforts to associate any available SSA records with the claims folder. With respect to his claims for service connection for cervical and lumbar spine disabilities, the veteran contends that his present disabilities are related to injuries sustained in service. The veteran's service medical records demonstrate that In June 1972, the veteran fell and landed on his back 1972. He was tender to palpation over T-11 to L-1, the spinous process had moderate muscle spasms, and he had some limitation of motion due to pain. X-rays were negative. Impression was muscle sprain and contusions. The veteran was treated with heat, bed rest, Valium, and Fiorinal. In January 1973, the veteran presented with complaint of pain in lower back for two weeks. The veteran noted a history of back injury during basic training. The assessment was lumbosacral strain syndrome. In February 1973, the veteran presented with complaints of low back pain and stated that he injured his back one week prior. Assessment was lumbosacral strain syndrome. In March 1973, the veteran presented with complaint of low back pain for three days after lifting. Assessment was recurrent lumbosacral strain syndrome. In April 1973, the veteran presented with back injury. Physical examination demonstrated mild tenderness right mid lumbar area. In July 1973, the veteran was in an auto accident and complained of pain in his upper lumbar region and cervical spine. Physical examination demonstrated tenderness of L2-3 and x-rays of the cervical spine were normal and x-rays of the lumbar spine showed mild scoliosis which was noted to possibly be contributing to muscle spasm and a questionable L5 defect. The assessment was lumbar strain secondary to back injury. In August 1973, the veteran presented with reinjured back. In October 2007, the veteran testified at a travel board hearing that he sustained an injury to his upper back (neck) area in 1972 and an injury to his lower back in 1973 and that he sought treatment in the late 1970s and early 1980s at Lee Memorial Hospital in Fort Myers, Herman Hospital in Houston, and the Methodist Hospital in Houston. Thus, the Board finds that the case could be remanded in order to request these records. Accordingly, the case is REMANDED for the following action: 1. The veteran should be contacted and requested to provide current authorization for the release of medical records, then an attempt should be made to obtain private medical records from Lee Memorial Hospital in Fort Myers, Florida from the 1970s and 1980s and from Herman Medical Center in Houston, Texas from the 1980s. 2. The veteran's medical and adjudication records from SSA should be requested. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if records are not available. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2008). ______________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs