Citation Nr: 1104151 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 06-14 267A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for dizziness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for left side numbness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for nausea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for neck pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 1993. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). This case was remanded by the Board in February 2009 for additional development. The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center, in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations from October 1990 to April 1991. 2. The preponderance of the evidence of record demonstrates that the Veteran has a medically unexplained chronic multi-symptom neurological illness. 3. The preponderance of the medical evidence of record shows that at least some of the manifestations of the Veteran's medically unexplained chronic multi-symptom neurological illness would warrant a 10 percent evaluation or higher. CONCLUSION OF LAW A medically unexplained chronic multi-symptom neurological illness is presumed to be related to military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issues involving the Veteran's claims for service connection for memory loss, headaches, dizziness, left side numbness, nausea, and neck pain as the Board is taking action favorable to the Veteran by granting service connection for a medically unexplained chronic multi-symptom neurological illness which encompasses all of these disorders. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). VA is authorized to compensate any Persian Gulf Veteran with 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. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The law currently defines a qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection. Id. This statute also provides that signs or symptoms that may be manifestations of an undiagnosed illness or a chronic multi-symptom illness include: (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; and (12) abnormal weight loss. Id. VA regulations provide that for a disability to be presumed to have been incurred in service, the disability must have become 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 not later than December 31, 2011; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. The Veteran served in the Southwest Asia theater of operations from October 1990 to April 1991. The Veteran's service treatment records include multiple reports of headaches, nausea, and dizziness. However, with the exception of a single record, all of these symptoms were related to diagnoses of acute viral syndromes or infections. The remaining record is a December 1991 service treatment report in which the Veteran complained of dizziness and headaches over the previous six months, with episodes of decreased attention. After physical examination, the assessment was "benign positional vertigo." After separation from military service, in an August 2004 private medical report, the Veteran complained of constant light-headedness and imbalance since July 29, 2004. He reported multiple symptoms, including vertigo with movement, numbness of the extremities, confusion, headaches, and nausea. A September 2004 private electroencephalogram (EEG) report stated that the Veteran's results were abnormal due to the presence of bifrontal Delta range activity. The impression stated that the Veteran had paroxysmal cortical dysfunction that might have been epileptogenic in nature. In a September 2004 private neurological report, the Veteran complained of light headedness and decreased sensation in the left fingers. The impression was transient symptoms, rule out cervical spondylosis, rule out intracranial vascular In a second September 2004 private medical report, the Veteran complained of dizziness symptoms and vertigo. The assessment was vertigo and numbness of the left side extremities. In an October 2004 private neurology report, the Veteran complained of dizziness, nausea, neck discomfort, left side numbness, and memory impairment. He reported that the symptoms occurred together and began suddenly approximately two and a half months before. After physical examination, the private physician stated that the Veteran's dizziness was believed to be cervicogenic, that he most likely had an episode of viral labyrinthitis which was now resolving, and that he had an acephalic migraine. In a November 2004 private neurology report, the Veteran complained of headaches, dizziness, and neck discomfort. On physical examination, the Veteran had pain and reduced range of motion in the neck. The impression was "[c]omplex issues of dizziness, neck pain, and headaches, dominant issues of migraine, a cervicogenic headache, and cervicogenic dizziness." A November 2004 private medical report stated that the Veteran was treated for a cervical strain. In a January 2005 VA Gulf War evaluation report, the Veteran complained of a history of losing time, headaches, dizziness, nausea, neck pain, and left side numbness. After physical examination, the impressions were symptoms consistent with petit mal seizures; symptoms of peripheral neuropathy, left hand; muscle spasm, cervical spine; and questionable cervical spine stenosis versus neurological disease. The plan stated that the Veteran needed to file a claim for an undiagnosed illness related to Persian Gulf service. The examiner stated that if no disease was found and the symptoms persisted, "then it is just as likely as not that he has undiagnosable illness (consistent with [VA] directives)." In a February 2005 private neurology report, the Veteran complained of dizziness and pain in the upper spinal area. On physical examination, the Veteran got out of the chair with difficulty and he had a slight decreased range of motion in the neck with complaints of tenderness from C1 through C4. The private physician stated that "[t]he reason for his pain and dizziness is unclear." A February 2005 VA outpatient medical report gave assessments of central origin vertigo, cervicocranial syndrome, spasmodic torticollis, variant of migraine, brachial plexus lesions, and cervicalgia. The examiner stated that a neurological consultation would be obtained for the Veteran's "possible Gulf War syndrome." An April 2005 VA outpatient medical report stated that the Veteran reported being well until August 2004, when he began to experience dizziness, left side numbness, headaches, slurred speech, memory loss, and pain in the back of the head and neck. No physical examination was conducted. The assessment was neurologic illness of undetermined etiology, rule out remote viral encephalopathy, rule out Gulf War illness, rule out neurologic condition, rule out toxic exposure. In a May 2005 VA outpatient medical report, the Veteran complained of dizziness, neck pain, headaches, memory loss, loss of concentration, nausea, and blurring of his vision. On physical examination, the Veteran had an unsteady gate and testing had to be halted because the Veteran became nauseated. The Veteran complained of severe neck pain and had a restricted range of motion. The relevant assessments were undiagnosed neurologic disorder and pain. In an August 2005 VA neurology report, the Veteran complained of headaches, neck pain, ataxia, and memory loss for the previous year. The Veteran also reported a history of dizziness. On physical, mental, and neurological testing, abnormalities of memory and dizziness were noted. The impression was "multiple complex issues of headaches, neck pain, dizziness, weakness and memory loss. . . . Dizziness is positional, and more towards peripheral cause, vestibular vertigo. Neck pain is muscular, primary due to constant muscle tension. Need further tests for the memory loss." In a second August 2005 VA neurology report, the Veteran complained of headaches, dizziness, decreasing memory, and neck pain. On physical examination, the Veteran had some limitation of neck motion and swayed on standing. The assessment was multiple somatic complaints, including headaches that were likely cervicogenic, subjective memory decline, and dizziness. An October 2005 VA general medical examination report stated that the Veteran was being evaluated for dizziness, headaches, neck pain, nausea, and left side numbness. The report stated that the symptoms were all related to the pain that the Veteran had in his neck, and that neck pain precipitated the headaches, which in turn were associated with nausea and left side numbness. After a review of the Veteran's history and a physical examination, the assessment was cervicogenic dizziness, migraine cephalgia with associated numbness and nausea, and cervical spine right paracentral disc bulge at C5-C6 resulting in minor spinal stenosis and mild-to-moderate right neural foraminal stenosis per magnetic resonance imaging (MRI). The examiner opined that the Veteran's neck pain, dizziness, and headaches were "attributable to his musculoskeletal and disc problems with the cervical spine as identified on MRI." An October 2005 VA mental health examination report stated that, after mental status examination, the diagnosis was depression. The examiner stated that "[p]sychological factors d[id] not seem to be associated in initiating his medical problems or exacerbating his medical symptoms." In a March 2006 private medical report, the Veteran complained of chronic dizziness and neck pain, with vomiting and generalized shakiness. After neurological and EEG examination, the impression stated that the Veteran needed to be evaluated for the possibility of an underlying epileptic disorder. An April 2006 private medical report stated that a 48 hour ambulatory EEG test had revealed no definite evidence of abnormal focal slowing or epileptiform activity. The Veteran did report episodes of headache, lightheadedness, confusion, restlessness, and irritability. On neurological examination, there was tenderness in the cervical spine region and the Veteran's gait was cautious. The private physician stated that "I do not have a clear neurological explanation for the [Veteran's] symptoms." A March 2009 VA gastrointestinal examination report stated that the Veteran was seen to assess his nausea. After a review of the Veteran's history and a physical examination, the examiner stated that the "[n]ausea is not primarily due to gastrointestinal origin or is not secondary to any gastroenterological conditions and is secondary to his syndrome that he is having which is neck pain, headache, dizziness." A March 2009 VA cervical spine examination report included a review of the Veteran's history. The examiner stated that the Veteran "has been evaluated by several specialists both at Ohio State University as well as the Cleveland Clinic in Neurology which have failed to provide a diagnosis for his generalized medical condition." After physical and radiographic examinations, the diagnosis was undiagnosed neurologic condition. The physician stated that I am unable to explain this [V]eteran's complex symptoms from an orthopedic standpoint. He does not have any signs of excessive degenerative disease, stenosis, or radiculopathy pointing to any focal lesion. It is my opinion that this is more likely a global type syndrome without any structural explanation with regards to his spine. An April 2009 VA psychiatric examination report reviewed the Veteran's history and included a mental status examination. The diagnosis was moderate depression. The psychologist stated that [t]he [V]eteran's depression is secondary to his medical problems and there appears to be no psychological factors associated in initiating these medical problems or exacerbating these medical problems. . . . [The psychologist] is unable to speculate as to the precipitating medical illness and would direct the reader to the neurological testing. A May 2009 VA neuropsychological examination report stated that, on diagnostic testing, there was objective evidence of mildly impaired delayed verbal memory. After further diagnostic testing, the diagnosis was mild cognitive impairment. A June 2010 VA medical opinion stated that the Veteran's claims file had been reviewed in detail. The physician agreed with the physician who wrote the March 2009 VA gastrointestinal examination report and stated that the Veteran's gastrointestinal symptoms were less likely than not due to an organic gastrointestinal problem. The physician stated that "[s]ince this is not a [gastrointestinal] problem, the issue [of whether] it is service connected cannot be resolved without mere speculation." A June 2010 VA medical opinion stated that the Veteran's claims file had been reviewed in detail. The physician agreed with the physician who wrote the March 2009 VA cervical spine examination report and stated that the Veteran seems to complain of neck pain without a discernible radiographic abnormality to explain his subjective complaints. His imaging studies and clinical examination failed to show any signs of significant degenerative disease, stenosis, or radiculopathy pointing to any cervical spine focal lesion. I cannot, without resort to mere speculation, associate the [V]eteran's symptoms with any one or more specific diagnoses. I am also unable, without resort to mere speculation, [to] provide an opinion as to whether any of the [V]eteran's symptoms are related to military service. In a July 2010 addendum, the physician who wrote the May 2009 VA neuropsychological examination report stated that, after further review of the Veteran's claims file, I am unable to conclude that the [Veteran's] memory and other cognitive difficulties most recently documented are a direct result of or occurred during his military service more than a decade prior to the exam[ination]. . . . Though he may well have been exposed to toxic chemicals in the Gulf theater, he also worked with toxic chemicals (unprotected) in the private sector for years thereafter. I would have to res[ort] to unsupported speculation in order to make such a connection. Moreover, there is no imaging evidence of any kind to support structural changes consistent with atrophy or any specific neurological degenerative brain disease or lesion. His imaging was reported to have been unremarkable. The neurologist who reviewed his most recent scans indicated that he did not see [an] indication of a brain lesion. In a July 2010 addendum, the psychiatrist who wrote the April 2009 VA psychiatric examination report stated that the Veteran's claims medical records had been reviewed. The psychiatrist reiterated the findings made in the April 2009 VA psychiatric examination report which stated that the Veteran's psychiatric disorder did not cause or aggravate his medical problems, and was instead caused by them. The psychiatrist further stated that [r]ecent information does not clearly indicate a medical cause for his symptoms of dizziness, memory loss, headaches, left side numbness, nausea, and neck pain. . . . At this time it would be mere speculation whether any of the [V]eteran's symptoms are related to his service. Recent notes suggest that the [V]eteran be examined for Gulf War Syndrome. The preponderance of the evidence of record demonstrates that the Veteran has a medically unexplained chronic multi-symptom neurological illness. The main symptoms of which the Veteran complains began in 2004, prior to which time he reported being generally healthy. Since 2004, the medical evidence of record shows consistent complaints of numerous physical complaints, including memory loss, headaches, dizziness, left side numbness, nausea, and neck pain. The medical evidence of record includes objective evidence of several of these symptoms, including memory loss, dizziness, nausea, and neck pain, and the Veteran's lay testimony is competent and credible to demonstrate the existence of headaches and left side numbness. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet.App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). In addition, the psychiatric evidence of record unanimously states that the Veteran's symptoms are not caused or aggravated by a psychiatric disorder. These findings are consistent with the general picture painted by the medical evidence of record, namely that the Veteran's reported symptoms are real and present, even when no objective evidence of individual symptoms is found on individual examinations. Furthermore, the preponderance of the medical evidence of record does not demonstrate that any of the Veteran's symptoms have been attributed to a known diagnosis. Shortly after the Veteran's symptoms began, multiple medical reports gave differing diagnoses for the Veteran's various symptoms. These diagnoses were generally non-definitive in nature, often simply characterizing the symptoms themselves and with a regular reliance on ruling out specific disorders. While some medical reports gave specific diagnoses, these reports are greatly outnumbered by those that did not or could not do so, including reports dated in January 2005, February 2005, April 2005, May 2005, April 2006, and March 2009. The most common impression given in the medical evidence is that the Veteran has an undiagnosed or undiagnosable neurological disorder which is the root cause of all of his reported symptoms, including all of the disorders for which service connection is currently claimed. In addition, these symptoms correlate well to the signs or symptoms listed in VA regulations which may be manifestations of an undiagnosed illness or a chronic multi-symptom illness, including headache, muscle pain, neurological signs and symptoms, neuropsychological signs or symptoms, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317(b). Accordingly, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran has a medically unexplained chronic multi-symptom neurological illness. The preponderance of the medical evidence of record also shows that at least some of the manifestations of the Veteran's medically unexplained chronic multi-symptom neurological illness would warrant a 10 percent evaluation or higher. See 38 C.F.R. §§ 4.87, Diagnostic Code 6204; 4.124a, Diagnostic Code 8100 (2010). As discussed above, the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. Accordingly, applying the doctrine of reasonable doubt, the Board finds that his medically unexplained chronic multi-symptom neurological illness is presumed to be related to military service. As such, service connection for a medically unexplained chronic multi-symptom neurological illness is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a medically unexplained chronic multi- symptom neurological illness, with manifestations including memory loss, headaches, dizziness, left side numbness, nausea, and neck pain, is granted. REMAND Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2010). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2010). In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service- connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non- service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The RO has previously denied entitlement to TDIU on the basis that the Veteran did not have any service-connected disabilities. However, as discussed above, the Board has granted service connect for the Veteran's medically unexplained chronic multi- symptom neurological illness. As such, the RO must readjudicate the issue of entitlement to TDIU, taking into account the new ratings assigned for the various manifestations of this disorder and the impact these manifestations have on the Veteran's employability. If, in the course of readjudicating this issue, the RO determines that the Veteran still does not meet the rating criteria under 38 C.F.R. § 4.16(a), but his service-connected disabilities prevent him from following a substantially gainful occupation, the provisions of 38 C.F.R. § 4.16(b) must be followed. These provisions state that a claim for TDIU may be referred to the Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b) (2010). Accordingly, the case is remanded for the following actions: 1. The RO must readjudicate the claim of entitlement to TDIU, taking into account the grant of service connection for a medically unexplained chronic multi-symptom neurological illness herein. 2. If, in the course of readjudicating this claim, the RO finds that the Veteran still does not meet the rating criteria under 38 C.F.R. § 4.16(a), but his service-connected disabilities prevent him from following a substantially gainful occupation, the RO must refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration on the issue of entitlement to TDIU. Thereafter, the RO must implement the determinations of the Director, Compensation and Pension Service, if so warranted. 3. After the above actions have been completed, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs