Citation Nr: 1026785 Decision Date: 07/19/10 Archive Date: 07/28/10 DOCKET NO. 06-36 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for fibromyalgia 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a digestive disorder. 5. Entitlement to service connection for a bilateral foot disorder. 6. Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to February 1989 and from November 2004 to January 2006. He served in the Persian Gulf War Theater of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas and Muskogee, Oklahoma. In a May 2006 rating decision, the RO, among other things, denied service connection for post traumatic stress disorder (PTSD), a bilateral foot disorder, and a digestive disorder. The Veteran perfected his appeal in regards to these issues. As December 2006 and March 2009 rating decisions granted service connection for PTSD and ultimately assigned a 100 percent rating, this issue is no longer on appeal. In August and November 2007 rating decisions, the RO denied service connection for tinnitus, fibromyalgia, sleep disorder, and hearing loss. The Veteran also perfected his appeal as to these issues. In May 2010, the Veteran testified at a Travel Board hearing before the undersigned; a transcript of that hearing is of record. At this hearing, the Veteran submitted medical evidence accompanied by a waiver agency of original jurisdiction (AOJ) review. The issues of entitlement to service connection for sleep apnea, gastrointestinal and bilateral foot disorders 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. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. Fibromyalgia is attributable to Gulf War service. 3. In January and May 2010 statements, prior to promulgation of a decision in the appeal on the issue of service connection for bilateral hearing loss, the Veteran requested to withdraw his appeal on this issue. 4. In January and May 2010 statements, prior to promulgation of a decision in the appeal on the issue of service connection for tinnitus, the Veteran requested to withdraw his appeal on this issue. CONCLUSIONS OF LAW 1. The Veteran has fibromyalgia that is presumed to have been incurred in Gulf War service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2009). 2. The criteria for withdrawal of a substantive appeal by the Veteran for the issue of service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 3. The criteria for withdrawal of a substantive appeal by the Veteran for the issue of service connection for tinnitus have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Fibromyalgia An award of service connection is warranted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi- symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below. The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2011. By history, physical examination and laboratory tests, the disability 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. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (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 disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders38 U.S.C.A. §§ 1117, 1118 (West 2002); 38 C.F.R. § 3.317 (2009). 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 whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate this claim for increase, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, the Veteran claims that he has general pain throughout his body that is associated with fibromyalgia. The Veteran's DD form 214 and service records reflect that he was ordered to active duty in support of Operation Iraqi Freedom. The Board finds that the criteria for service connection under the provisions of 38 C.F.R. § 3.317 have been met. The Veteran has consistently voiced complaints of muscle and joint pain, and he is certainly competent to relate such subjective symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); see also, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). December 2005 to March 2006 treatment records from MaxHealth Family medicine noted that the Veteran recently returned from Iraq and had symptoms of malaise, fatigue, generalized pain and myalgia. On July 2007 VA examination, the examiner noted that the Veteran returned in January 2006 from a tour of duty in Iraq, and within the next two to three months developed generalized pain and fatigue disorder. After examination, the Veteran was diagnosed with chronic fatigue symptoms, depressive symptoms, sleep disturbance, headaches, and migratory joint and muscle complaints. The examiner found that the diagnoses were more likely related to the Veteran's PTSD and Depressive Disorder. He reasoned that the Veteran did not have the physical findings of fibromyalgia in that there were no trigger points and his symptoms could be explained by other diagnoses. Treatment records from VA North Texas Health Care System dated from 2006 to 2010 showed that the Veteran periodically had complaints of pain and fatigue. In June 2008, he sought treatment for symptoms that he thought were consistent with fibromyalgia or chronic fatigue syndrome. Objective testing revealed that he met the minimum criteria of 11 of 18 tender points. The examining physician noted that for some of the points, it could be called either way as to whether the points were truly tender and for that reason the Veteran had borderline fibromyalgia. The assessment was suspected fibromyalgia. He was advised to exercise. Subsequent treatment records included a medical history of fibromyalgia. At his May 2010 Travel Board hearing, the Veteran indicated that he didn't attribute the symptoms he experienced while he was in Iraq to any disorder until after he came home. He reported that he had overall general pain throughout his body. He indicated that when he was diagnosed with fibromyalgia, he was told that it would help his symptoms if he exercised and lost some weight. He also was referred to pain management to help manage the pain. The Board concludes that, resolving reasonable doubt in favor of the Veteran, the Veteran's symptoms are consistent with a diagnosis of fibromyalgia. As set forth above, there is a rebuttable presumption that fibromyalgia suffered by Persian Gulf veterans was incurred as a result of their service in the Southwest Theater of Operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a) (2) (i) (B) (2) (2009). As such, the Board finds that the criteria for entitlement to service connection for fibromyalgia, with manifestations to include muscle and joint pain are met. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claim. As this decision has granted service connection for fibromyalgia, there is no reason to further discuss the impact of the VCAA on this matter, as any notice defect or assistance omission is harmless. II. Withdrawn claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In January and May 2010 statements, the Veteran's communicated that he wished to withdraw his appeal for service connection for bilateral hearing loss and tinnitus. There is no remaining allegation of error of fact or law for appellate consideration, and that appeal is withdrawn. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. As the appeal is dismissed, it is not necessary to discuss VA's duties to notify and assist the Veteran with respect to the issues of entitlement to service connection for bilateral hearing loss and tinnitus. ORDER Service connection for fibromyalgia is granted. The appeal for entitlement to service connection for bilateral hearing loss is dismissed. The appeal for entitlement to service connection for tinnitus is dismissed. REMAND The Veteran claims entitlement to service connection for sleep apnea, a gastrointestinal disorder, and a bilateral foot disorder. He contends that a bilateral foot disorder manifested during his first period of active service and that it worsened during his second period of active service. He also contends that his sleep apnea and gastrointestinal disorder manifested in service. Unfortunately the Board finds that a remand is necessary to adequately address the claimed issues. The RO is noted to have denied service connection for bilateral flat feet and plantar fasciitis on the basis that the conditions existed prior to service and there was no evidence of the conditions permanently worsening as a result of service. The Board notes that on December 1984 entrance report of medical history and on October 1988 separation examination, the Veteran was found to have broken down/shallow arches. Also, July and September 2003 service treatment records (STR's), included a diagnosis of plantar fasciitis in he was placed on a physical profile that included no running. He was again treated in September 2005 for foot pain. However, on December 2005 report of medical assessment, he reported that the problems associated with his flat feet were worse. On examination, he was found to have chronic plantar fasciitis for two years that was exacerbated while he was in Iraq. It was noted that he tried various inserts and purchased his own boots with intermittent improvement. Post service, he periodically had complaints of bilateral foot pain. The Board notes that while the Veteran did undergo a VA general medical examination in April 2006, which included an examination of his bilateral feet, such examination failed to provide an opinion as to whether he had a bilateral foot disorder that was aggravated by service. As such, a new VA examination is indicated. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). If a VA examination is inadequate, the Board must remand the case. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Likewise, on July 2007 VA examination, the Veteran was found to have sleep disturbances that were more likely related to his PTSD and Depressive Disorder. However, since the July 2007 VA examination, he has been diagnosed with sleep apnea. Although he was afforded a new VA examination in January 2009, the examiner failed to address whether or not the Veteran's diagnosed sleep apnea was related to his active service. Also, in regards to the Veteran's gastrointestinal disorder, on April 2006 VA examination, he was diagnosed with diarrhea that appeared to have resolved since he was placed on Prevacid. However, subsequent VA treatment records noted complaints of abdominal pain and chronic diarrhea. The records noted that he had symptoms or some components of irritable bowel syndrome. He was afforded another VA general medical examination in January 2009, which included an impression of gastroesophageal reflux disease, fatty infiltration of the liver and chronic diarrhea. Unfortunately, the examiner did not provide an opinion as to whether or not the Veteran's gastrointestinal disorder was related to service. Accordingly, a remand for an addendum to the January 2009 examination is necessary to address whether or not the Veteran's sleep and gastrointestinal disorders are related to service. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran reported that he applied for Social Security disability and Chapter 31 Vocational Rehabilitation. Records pertaining to such are not in the claims file. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request and obtain the Veteran's Social Security disability paperwork and ensure that it is printed out and placed in the claims file. 2. The AMC/RO should obtain the Veteran's Chapter 31 Vocational Rehabilitation file and associate it with the claims file. 3. After completion of #1 & 2 above, the claims folder should be referred to the examiner who performed the September 2009 examination (if available) to obtain addendum opinions as to the etiologies of the diagnosed sleep apnea and gastrointestinal disorders. Specifically, the examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea and gastrointestinal disorders are related to his service. If the examiner who performed the September 2009 examination finds that another examination is necessary or is unavailable to complete this addendum, the Veteran should be scheduled for a new examination. 4. The RO/AMC should also schedule the Veteran for a VA examination to determine the etiology of his bilateral foot disability. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner should address the following questions: a) What is the diagnosis of any current bilateral foot disability (ies)? b) Did a bilateral foot disability clearly and unmistakably preexist the Veteran's period of active duty, or was it incurred during active duty? c) If it is determined that the Veteran had a preexisting bilateral foot disability, did such disability permanently increase in severity during his period of active service? If such an increase occurred, was it due to the natural progress of the disease or, if not, due to aggravation of the disorder by his active service? d) If the examiner determines that bilateral foot disability did not preexist the Veteran's military service, is it at least as likely as not (i.e., at least a 50 percent probability) that a currently diagnosed bilateral foot disability is related to an incident or injury during active service? Note: "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 6. Readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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. 2009). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs