Citation Nr: 1500622 Decision Date: 01/07/15 Archive Date: 01/13/15 DOCKET NO. 08-22 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for positional vertigo, including as due to an undiagnosed illness. 2. Entitlement to service connection for residuals of a cerebrovascular accident (CVA), i.e., stroke. 3. Entitlement to service connection for hypertension, including as due to an undiagnosed illness. 4. Entitlement to service connection for insomnia, including as due to an undiagnosed illness. 5. Entitlement to service connection for low arch pronation. 6. Entitlement to service connection for benign paroxysmal (chronic sinus), including as due to an undiagnosed illness. 7. Entitlement to service connection for a cervical spine disorder. 8. Entitlement to service connection for a lumbar spine disorder. 9. Entitlement to service connection for a right ankle disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty in the U. S. Army from May 1984 to February 1987 and from January to October 1991, including in the Southwest Asia Theater of Operations during the Persian Gulf War. Between these two periods of service, and following the latter period, he also served in the Army Reserves and National Guard, respectively. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a September 2008 hearing before a local hearing officer at the RO. In February 2012, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration. At the time the appeal also included claims of entitlement to service connection for tinnitus and migraine headaches. But in a rating decision since issued in January 2013, the RO granted these claims, so they are no longer at issue since the Veteran did not, in response, separately appeal either the disability ratings or effective date assigned for them. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). In the prior remand, the Board explained that the Veteran had raised additional claims for consideration, specifically, entitlement to service connection for chronic fatigue syndrome and disabilities of his lower extremities, the latter including as due to an undiagnosed illness, which the RO had not considered. The Board thus referred these other claims to the RO for appropriate action. Since then, however, the RO has not acted on these claims, so the Board is again referring them for appropriate development and consideration. The Veteran's records are being maintained both in a physical claims file and electronically on Virtual VA, one of VA's paperless claims processing systems. So all future consideration of his claims must remain mindful that there is both the physical and electronic files. In this decision the Board is deciding the claims of entitlement to service connection for insomnia and a cervical spine disorder. All of the remaining claims, however, require still further development before being decided; thus, those other claims are again being REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's insomnia is shown to have started during his service. 2. He does not currently have a cervical spine disorder, however. CONCLUSIONS OF LAW 1. The insomnia was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 2. A cervical spine disorder was not incurred or aggravated in service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1118, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Specifically, VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, also of the portion of the evidence the claimant is to provide versus the portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. As well, VA must assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination and/or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). There is no such obligation if there is no reasonable possibility the assistance would help substantiate the claim. With regards to the claim for service connection for insomnia, there is no need to discuss whether VA complied with these duties the VCAA requires. Rather, given the Board's favorable disposition of this claim, any lack of compliance is at most non-prejudicial or harmless error, not affecting the essential fairness of the adjudication of this claim inasmuch as it is being granted, rather than denied, regardless. 38 C.F.R. § 20.1102 (2014); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, but instead must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant bears the burden of proof of not only establishing this error, but also, above and beyond that, showing that it is unduly prejudicial or outcome determinative of his claim). With regards to the claim for service connection for a cervical spine disorder, the Veteran does not assert that VA violated its duty to notify or that there are any outstanding records that VA should obtain on his behalf. Rather, in an August 2014 Appellant's Post-Remand Brief, his representative asserts that the "VA examination and VA examiner did not adequately assess [the Veteran's] condition that he has had since his service that has persisted post service warranting service connection." The representative expressed the same contention, verbatim without further explanation or rationale, for each condition at issue in this appeal. While the Board agrees that some of the examinations the Veteran underwent during the course of this appeal are inadequate, hence, the reason those claims are again being remanded, the Board does not find that such is the case also concerning this claim for a cervical spine disorder. In fact, when the RO initially found the examination reports inadequate (unclear which periods of service to which the examiner was referring) the RO sent the reports back to the examiners to clarify when the conditions in question manifested, including whether they did so at any time from May 1984 to February 1987 or from January 1991 to October 1991, when the Veteran was in active service. The examiners followed up by submitting clarifying, albeit unfavorable, opinions. Inasmuch as the Veteran and his representative have provided no rationale for their assertions that the opinions are inadequate, let alone that there is evidence of record indicating the Veteran's cervical spine disorder may be the result of his service, another examination and/or supplemental medical nexus opinion need not be obtained - at least as concerning this particular claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). II. Analysis The claim for service connection for insomnia is predicated on the notion that the Veteran developed this condition during his secondary period of active service, from January to October 1991. Allegedly, this condition initially manifested during his participation in Operation Desert Storm/Shield. At the time, but while still on active duty, he reportedly noticed a dramatic increase in his blood pressure and headaches and, due to these problems, began having difficulty sleeping. Given that the Veteran's headaches are now service connected, his assertions in this regard raise a claim for service connection for insomnia on both direct and secondary bases, that is, both on the premise his insomnia is directly attributable to his service or indirectly attributable by way of a service-connected disability, namely, his headaches. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty); see also 38 C.F.R. § 3.310(a) and (b) (service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury). The claim for service connection for a cervical spine disorder is predicated on the notion that the Veteran developed this condition during his many years of service, including in the National Guard, when he worked as a helicopter mechanic. According to his March 2007 application for compensation and September 2008 hearing testimony, the duties of this position along with physical training caused stress on his joints, including his feet, lower extremities and lower back. He claims that, because of that stress, the ankle injury he sustained during his first period of active service, and a congenital leg length discrepancy, he later developed problems in his upper back and neck (i.e., the cervical region or segment of his spine). As for the development of his alleged cervical spine disorder claim, the Veteran is referring to both his active and inactive service as being the pertinent time frames at issue in this appeal. However, when seeking service connection resulting from disease or injury incurred in or aggravated by "active military, naval or air service", see 38 U.S.C.A. §§ 1110, 1131 (West 2002), service in the Army National Guard, however many years, does not necessarily qualify. Rather, "active military, naval, or air service" includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty, also when a cardiac arrest or cerebrovascular accident occurs during such training.. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). It usually covers the two weeks of training done during each summer ("summer camp"), whereas INACDUTRA generally encompasses the one weekend of training done each month ("weekend warrior training"). So, here, where the Veteran served only in part on AD, he must establish that he became disabled from a cervical spine disorder during either of his two periods of AD, from May 1984 to February 1987 or from January to October 1991, or that he developed this alleged condition owing to an injury sustained during a specific period of ACDUTRA or INACDUTRA. A. Insomnia The evidence satisfies all elements of the claim for service connection for insomnia, whether on a direct basis under 38 C.F.R. § 3.303 or secondary basis under § 3.310. As alleged, the Veteran reported insomnia during his second period of active service, in September 1991. The examiner indicated the Veteran had been having headaches for six months, for which he was receiving treatment, and difficulty sleeping for three months. This report is consistent with his recent testimony indicating that the insomnia, a lay-observable phenomena, initially manifested following the headaches, but while still in service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (wherein the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, indeed, even when not corroborated by contemporaneous medical evidence such as actual treatment records). See also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (indicating that the determination of whether medical versus lay evidence is needed to support a claim is fact specific, so a case-by-case determination, dependent on the type of condition being claimed, i.e., simple versus medically complex). Following service, in 1997 during a VA Persian Gulf War Registry examination (a decade before filing a claim), the Veteran reported that he had had sleep disturbance since the Gulf War. Thereafter, including at VA and to private doctors, he continued to report sleeping difficulties, the etiology of which is still unclear. Medical professionals have attributed his insomnia to varying causes, including his hypertension and obstructive sleep apnea. In May 2006, one private physician related it to the medication the Veteran was taking for treatment of his service-connected headaches. Given that the Veteran's current insomnia, confirmed by medical professionals, initially manifested during a period of active service and continued to manifest thereafter, the Board concludes that the condition was incurred in service since there is no disputing it started during his service. Even assuming such were not the case, the Board would still grant this claim, but on a secondary basis, relying upon the private physician's opinion relating the insomnia to the headache medication taken for treatment of a service-connected disability. B. Cervical Spine Disorder The evidence conversely fails to satisfy all necessary elements of this other claim for service connection for a cervical spine disorder, namely, the current disability element - which is a prerequisite to the other two elements for a successful claim. Since his discharge from his second period of active service in 1991, the Veteran has undergone medical evaluations for the National Guard and VA examinations and has received VA and private treatment. During these many evaluations, examinations and treatment visits, however, no medical professional has diagnosed a cervical spine disorder of any sort, much less owing to his military service. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). The Veteran began complaining of joint pain during his service, but he never mentioned his neck or cervical spine specifically. In 2003, in response to his complaints, he underwent a bone scan that revealed increased uptake, mostly likely secondary to arthritis in his hands, wrists, elbows, knees, left foot and lumbar spine, but not also his cervical spine. In 2006 and 2007, he received treatment for joint complaints and medical professionals diagnosed arthralgia, but affecting his feet, knees and low back, again, not also his cervical spine. In March 2012 he underwent another bone scan that revealed inflammatory arthritis in his hands, shoulders, sternoclavicular joints, hips, knees, ankles, feet and sacroiliac joints, but yet again not also in his cervical spine. During a VA examination in March 2012 he reported experiencing intermittent neck pain and stiffness. The VA examiner confirmed localized tenderness or pain to palpation, but indicated the Veteran had not been diagnosed with a cervical spine disability and refrained from diagnosing any such disability. In an addendum opinion dated in April 2012, this examiner further indicated that, in any event, no current neck condition is related to a period of AD or an injury sustained during a period of ACDUTRA. The Veteran's lay assertions represent the only evidence suggesting the existence of a current cervical spine disorder. Although he is competent to report that he experiences certain lay-observable symptoms such as neck pain and stiffness, because he has no special training or expertise in medicine, including as concerning the specific type of disorder being claimed, he is not also competent to diagnose a disorder manifested by these symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Inasmuch as there is no competent and credible (so ultimately probative) evidence that the Veteran currently has a cervical spine disorder or has at any time since or contemporaneous to the filing of this claim, the Board concludes that this alleged disorder was not incurred in or aggravated by active military service. The evidence in this case is not in relative equipoise; instead, the preponderance of the evidence is unfavorable, so the benefit-of-the-doubt rule is inapplicable. 38 U.S.C.A. § 5107; see also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for insomnia is granted. Service connection for a cervical spine disorder, however, is denied. REMAND As concerning the remaining claims, the Board sincerely regrets the additional delay that will inevitably result from remanding, rather than deciding, these claims of entitlement to service connection for positional vertigo, including as due to an undiagnosed illness, hypertension, also including as due to an undiagnosed illness, low arch pronation, benign paroxysmal (chronic sinus), including as due to an undiagnosed illness, a lumbar spine disorder and a right ankle disorder, but this additional development is necessary to ensure the record is complete and the Veteran is afforded every possible consideration. In his March 2007 application for benefits and during his September 2008 hearing, the Veteran indicated that, during his first period of service, he experienced dizzy spells and received treatment for joint problems, including a sprained ankle. He further indicated that, while serving in Operation Desert Shield/Desert Storm, where he was exposed to smoke and flames from burning oils and experienced physical and emotional stress, he developed, in part, damaged sinuses, a dramatic increase in his blood pressure and headaches, the latter of which interfered with his ability to sleep, paroxysmal positional vertigo, and a stroke. He reported that his service training and duties placed a lot of stress on his feet, lower extremities and lower back. During the course of this appeal, the RO afforded the Veteran VA examinations in response to these claims being remanded, but the reports of these examinations are inadequate to decide these claims. In each case, when offering his or her opinion, the examiner failed to consider the Veteran's competent reports of lay observable symptomatology. In addition, each examiner appears to have missed entirely or, at the very least not accounted for, critical post-service medical information or failed to provide sufficient explanatory rationale. VA examiners ruled out a relationship between the Veteran's positional vertigo and benign paroxysmal (sinus) on the basis that these symptoms/findings were not noted during a period of active service. They did not discuss the significance of the reported dizziness and documented losses of consciousness/vasovagal reactions he had during his first period of service, or his assertions that the conditions are related to his service in the Persian Gulf War (raising the question of whether they are due to undiagnosed illness(es)), and that they began affecting him after his headaches initially manifested in 1991. In addition, examiners ruled out a relationship between the Veteran's low back, right ankle and foot disabilities on the same basis, but neglecting his competent lay assertions that he began experiencing pain in these joints during his active service (documented in the service treatment records (STRs) from both periods of his service) and has some sort of congenital condition, including involving a leg length discrepancy, which worsened during his service and is causing joint pain in multiple areas of his body. Post-service medical records confirm he has low back and right ankle disabilities, variously diagnosed, including as inflammatory arthritis (affecting numerous other joints), and multiple abnormalities of both feet. His STRs confirm preexisting flat foot, i.e., pes planus. Finally, the Veteran asserts that the stroke he had, which is documented as occurring prior to 2004, likely occurred in service in 1991 or earlier, is related to his hypertension, with which he was first diagnosed in 1981, and initially manifested as, or concurrently with, vertigo, headaches and insomnia, the latter two documented in 1991. Indeed, medical evidence suggests a possible relationship between some, if not all, of these conditions. No medical professional has discussed this possible interrelatedness or any relationship between the claimed conditions and the Veteran's service during the Persian Gulf War. This necessary discussion is particularly needed in this case given that, on enlistment, the Veteran noted a history of hypertension since 1981 and, during his first period of service, he suffered multiple losses of consciousness/vasovagal reactions. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. After securing any necessary authorization, obtain and associate with the claims file all pertinent, outstanding records of the Veteran's treatment for the remaining conditions (those still at issue). 2. Thereafter, schedule the Veteran for another VA examination by someone with the necessary expertise to provide for a more comprehensive opinion regarding the etiology of his hypertension, benign paroxysmal, vertigo, and stroke residuals. Provide this examiner access to the Veteran's physical claims file and electronic file (Virtual VA) for review and ask him to follow the instructions noted below. a) Record in detail the Veteran's history of high blood pressure and its treatment, both prior to and during his service, vertigo, dizziness, and stroke residuals. Also record his history of exposures to various environmental hazards during the Persian Gulf War. b) Confirm in a written report that the review included all pertinent documents of record, such as the STRs showing a history of hypertension on entrance into the service, losses of consciousness/vasovagal reactions in April 1984 (prior to active service) and May 1984 and September 1986 (during active service), and reports of headaches and insomnia in September 1991 during the separation examination, and post-service treatment records confirming the existence of vertigo beginning in 2002 and a 2004 finding of an old ischemic infarct. c) Offer an opinion as to whether the Veteran's hypertension, benign paroxysmal and vertigo (provided the latter two are due to a specific disease entity) are at least as likely as not (50% or greater probability) related to his May 1984 to February 1987 and/or January 1991 to October 1991 service, including the dizziness, losses of consciousness/vasovagal reactions and headaches and insomnia then reported to have initially manifested 3 to 6 months prior to separation. d) Offer an opinion as to whether the stroke, discovered in 2004, at least as likely as not initially manifested during service in 1991 in the form of headaches and insomnia. e) If the hypertension is found not related to active service, offer an opinion as to whether it preexisted service and worsened therein, including in the form of losses of consciousness/vasovagal reactions, headaches and/or insomnia. f) If the benign paroxysmal and vertigo are found not to be due to a specific disease entity, indicate whether the symptoms thereof represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service or a medically unexplained chronic multi-symptom illness, which is defined by a cluster of signs or symptoms. g) If the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a chronic multi-symptom illness, also describe the extent to which the illness has manifested. h) Provide detailed rationale, with specific references to the record, for the opinions expressed. 3. As well, schedule the Veteran for a VA low back, right ankle and bilateral foot examination. Provide the examiner access to the Veteran's physical claims file and electronic file (Virtual VA) for review and ask him to follow the instructions noted below. a) Record in detail the Veteran's history of right ankle pain since he injured his right ankle during his first period of active service, low back pain, including prior to his report thereof in 1991, and any foot symptomatology associated with his flat foot, first noted on entrance into the service. b) Confirm in a written report that the review included all pertinent documents of record such as service treatment records showing the preexisting flat foot and a complaint of low back pain and VA and private post-service treatment records confirming the existence of variously diagnosed low back, right ankle and bilateral foot disabilities. c) List all low back, right ankle and bilateral foot disabilities shown to exist on examination and which were diagnosed during the course of this appeal. d) Acknowledging as true any reports of joint pain, offer an opinion as to whether the Veteran's low back, right ankle and/or bilateral foot disorder is(are) at least as likely as not related to his May 1984 to February 1987 and/or January 1991 to October 1991 service, including the right ankle injury and/or reported joint pain affecting the low back, right ankle and feet. e) If the bilateral foot disability is found not related to active service, offer an opinion as to whether it preexisted service and worsened therein. f) Provide detailed rationale, with specific references to the record, for the opinions expressed. 4. Next, review the examination reports to ensure they comply with the Remand directives. If either does not, return it to the examiner for correction. 5. Then readjudicate these remaining claims in light of this and all other relevant evidence. For any claim that continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and allow them an appropriate time to respond to it before returning the file to the Board for further appellate consideration of all remaining claims. The Veteran has the right to submit additional evidence and argument in support of these remanded claims. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs