Citation Nr: 1303246 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-06 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral elbow disability. 2. Entitlement to service connection for a bilateral hand disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a chronic cough, to include as due to an undiagnosed illness. 5. Entitlement to an initial rating higher than 10 percent for fibromyalgia. 6. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 and July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a bilateral elbow disorder, a bilateral hand disorder, a bilateral hip disorder, and a chronic cough, and granted service connection for GERD, rated as noncompensable since October 1, 2007. In July 2009, the RO granted service connection for fibromyalgia, rated as 10 percent disabling since October 1, 2007. The Veteran testified before the Board at a hearing held via videoconference in March 2012. In April 2012 and in July 2012, the Veteran submitted evidence in support of his claims without a waiver of RO jurisdiction. The issues of entitlement to service connection for a bilateral elbow, hand, and hip disability, and for increased ratings for fibromyalgia and GERD, 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. The Veteran's chronic cough is not related to any known clinical diagnosis. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, a chronic cough was incurred in or aggravated by active military service, to include as due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1117, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the claim for service connection for a chronic cough is being granted in full, VA's statutory and regulatory duties to notify and assist are deemed fully satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). 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. 38 C.F.R. § 3.317(a). A Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). 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 airspace above these locations. 38 C.F.R. § 3.317(d)(2). The symptoms must be manifest to a degree of 10 percent or more by December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(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). 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. 38 C.F.R. § 3.317(a)(4). 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 disorders. 38 C.F.R. § 3.317(b). In summary, service connection based on an undiagnosed illness requires that a Persian Gulf veteran (1) exhibits objective indications; (2) of a chronic disability such as those listed in 38 C.F.R. § 3.317(b); (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% or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). In the case of claims based on undiagnosed illness, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Although VA does not generally grant service connection for symptoms alone, 38 C.F.R. § 3.317 permits, in some circumstances, service connection for signs or symptoms that are objective indications of chronic disability. See 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). Additionally, where a physician is unable to attribute a disability to a known clinical diagnosis, and there are conflicting findings, VA must resolve the issue on the basis of all medical evidence of record. See Compensation for Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6662 (Feb. 3, 1995) ("Undiagnosed Illnesses"). Purely subjective symptoms may establish a basis for a valid claim only where there is some objective indication of the presence of a chronic disability attributable to an undiagnosed illness. See Undiagnosed Illnesses, 60 Fed. Reg. at 6662. Objective indications include medical findings, time lost from work, evidence of medical treatment of the symptoms, evidence affirming changes in a veteran's appearance, physical abilities, and mental or emotional attitude, and lay statements. See Undiagnosed Illnesses, 60 Fed. Reg. at 6663. Turning to the evidence of record, service treatment records reflect that in April 1988, chest X-ray was negative, taken after symptoms of cough. In December 1993, the Veteran was diagnosed with bronchitis. An April 1994 spirometry was negative making reactive airway disease unlikely. In January 1994, his chronic cough was not responding to Prednisone or anti-tussive medication. In May 1998, the Veteran reported having a seven year history of intermittent chronic dry cough. The assessment was rule out GERD-induced coughing. Another May 1998 record stated that the etiology of the cough was unclear. VA treatment records reflect that in March 2008, the Veteran was assessed for a chronic cough that he had had for 14 years and began after he was deployed to Somalia and Iraq. The cough was chronic, severe, spasmodic, and nonproductive and would last for about three months at a time and then reappear about eight months later. The cough did not respond to anti-tussive medications. In the past, all etiologies had been ruled out, including asthma, post-nasal drip, and chronic obstructive pulmonary disease, leaving his GERD as a possible cause. It was noted that other causes for a chronic cough could be idiopathic, to include an exaggerated cough reflex or sensitivity induced by upper respiratory infection. A March 2008 chest X-ray was negative for cardiopulmonary process. In May 2008, he reported that the cough had stopped by itself that month after nine weeks of constant coughing. A November 2008 bronchoscopy was negative except for soft tissue around the vallecula. A November 2008 private treatment record reflects a diagnosis of chronic cough secondary to reactive airway disease. On March 2009 VA examination, the Veteran reported having a constant dry cough that continued despite medication. A review of the records and physical examination resulted in the assessment of chronic cough of which the cause had not been established despite all testing. On July 2009 VA examination, a review of the records resulted in the diagnosis of chronic idiopathic cough/exaggerated cough reflux of unknown etiology. Review of the records suggested that the cough was not secondary to his GERD. The Veteran displayed a chronic, persistent cough throughout the examination. Upon a review of all the evidence of record, and resolving all reasonable doubt in favor of the Veteran, service connection for a chronic cough, to include as due to an undiagnosed illness, is warranted. First, the Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(d)(1), as he served in Bahrain during the Persian Gulf War. Second, the lay and medical evidence of record indicates that there are objective indications of upper respiratory signs and symptoms. 38 C.F.R. § 3.317(a)(3). The service treatment records and the post-service treatment records document an ongoing, chronic cough that has not been attributable to any known diagnosis. Such etiologies as asthma, obstructive or reactive airway disease, and GERD have all be ruled out as the cause of his chronic cough. Although one private record states that the cough was due to reactive airway disease, that etiology was noted in the VA records to have been ruled out. Moreover, on March 2009 and July 2009 VA examinations, his chronic cough was determined to be of unknown etiology, with all available tests already having been administered. Given these opinions and the ruling out of the chronic cough being due to a different disease process, the Board resolves reasonable doubt in favor of the Veteran that he has upper respiratory symptoms, to include a chronic cough that is due to an undiagnosed illness. Significantly, the chronic cough began during his Persian Gulf service, as stated by the Veteran and as shown in the service treatment records when they reference ongoing testing for symptoms of a cough, and has remained chronic since service, with no current diagnosis. 38 C.F.R. § 3.317(a)(2)(i), (b). Thus, in resolving the benefit of the doubt in favor of the Veteran, service connection for a chronic cough as due to an undiagnosed illness is warranted. ORDER Service connection for a chronic cough is granted. REMAND Additional development is necessary prior to further disposition of the claims for service connection for a bilateral elbow, hand, and hip disability, and for increased ratings for fibromyalgia and GERD. The Veteran contends that his bilateral elbow, hand, and hip disabilities began while he was in service. Service treatment records reflect that in October 2006, the Veteran reported having right hip pain and bilateral elbow pain for six years. There was mild tenderness to palpation of the right hip. In April 2007, the Veteran reported having pain in his elbows and hands. The assessment was osteoarthritis of the hands. He reported having undergone physical therapy for hip pain but no specific pathology had been identified. With regard to the elbows, post-service treatment records reflect that on March 2008 VA examination, the Veteran reported no injury to the elbows but an insidious onset that had occurred over the previous four years over the olecranon. X-ray of the right and left elbows was negative but for some soft tissue swelling. Physical examination showed normal range of motion and no pain on palpation, bilaterally. The assessment was negative exam. In November 2010, he was treated for bilateral lateral epicondylitis. He had pain primarily over the lateral aspect of both elbows. With regard to his bilateral hand condition, on March 2008 VA examination, the Veteran reported that he had spotty pain and numbness over both thumbs and index fingers. These symptoms seemed related to his cervical spine disability. Physical examination was negative for any discomfort, atrophy, or abnormality of strength. There was subjective sensory decrease along the thumbs and first web space. Those symptoms were thought to most likely be coming from the neck. However, on another March 2008 VA examination, neurological examination of the upper extremities was negative for a radicular pattern. In October 2008, he reported numbness in his hands. An August 2010 x-ray showed arthritis at the first carpometacarpal joint of the right and left hands. He was also assessed to have bilateral carpal tunnel syndrome. With regard to his bilateral hip disability, on March 2008 VA examination, he reported worsening hip pain over the greater trochanter on both sides, with no previous injury but for running while in service. Physical examination resulted in a diagnosis of bilateral trochantric bursitis, symptomatic. A July 2010 record showed early degenerative arthritis of the left and right hip. In December 2011, he reported increased pain in the right hip. The diagnosis was right greater trochantric bursitis. Because there is evidence of hip and elbow pain in service, and the Veteran is credible to state that he felt pain in his hips, hands, and elbows in service, and in light of the current diagnoses of elbow, hand, and hip disabilities, the Board finds that VA examinations with respect to the etiology of these claims should be obtained. With regard to the claims for increased rating for fibromyalgia and GERD, the most recent VA examination for those disabilities was conducted in July 2009 and March 2008, respectively. At his March 2012 hearing, the Veteran stated that both disabilities has worsened, specifically, that his musculoskeletal joint pains and tenderness were present almost every day and that his GERD caused burning, some regurgitation, and pain in his upper arms. Accordingly, in light of the time that has lapsed since the most recent examinations, and because of the Veteran's statements of symptoms that may warrant higher ratings, VA examinations should be scheduled to assess the current severity of his fibromyalgia and GERD. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to his claims for service connection for bilateral hip, elbow, and hand disabilities, as well as for his claims for increased rating for his fibromyalgia and GERD. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 2. Schedule the Veteran for a VA examination to determine the etiology of his bilateral hip, elbow, and hand disabilities. The claims file must be reviewed by the examiner and the examination report should note that review. The examiner should provide the rationale for all opinions provided. In addition to the medical records, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of symptoms after service. The examiner should opine as to the following: Diagnose any current 1) left or right elbow disability, 2) left or right hand disability, and 3) left or right hip disability. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's elbow, hip, and hand disabilities were caused or aggravated by, or had their onset during, his military service? The examiner should take into account the Veteran's statements of symptoms in service and the service treatment records dated in October 2006 and April 2007 referring to joint pain. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his fibromyalgia. The examiner should review the claims file and should note that review in the report. Any opinion provided should be supported by a full rationale. The examiner should specifically address the following: Describe the extent of any widespread musculoskeletal pain and tender points, as well as any accompanying symptoms of fatigue, sleep disturbance, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, anxiety, or Reynaud's-like symptoms. Does the Veteran have those symptoms on an episodic basis, with exacerbations often precipitated by environmental or emotional stress or by overexertion, present more than one-third of the time? Are the symptoms constant, or nearly so? Are they refractory to treatment? 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his GERD. The examiner should review the claims file and should note that review in the report. Any opinion provided should be supported by a full rationale. The examiner should specifically address the following: Does the Veteran's GERD result in symptoms of persistent epigastric distress, dysphagia, pyrosis, regurgitation, substernal arm or shoulder pain, or productive of considerable impairment in health? Does the Veteran's GERD result in symptoms of pain, vomiting, material weight loss, hematamesis, or melena with moderate anemia? 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims for service connection for a bilateral elbow, hand, and hip disability, and for increased ratings for fibromyalgia and GERD should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals D epartment of Veterans Affairs