Citation Nr: 0510874 Decision Date: 04/15/05 Archive Date: 04/27/05 DOCKET NO. 99-20 852 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for orthostatic lightheadedness (claimed as dizziness), to include as due to an undiagnosed illness. 2. Entitlement to service connection for chest pain and shortness of breath, to include as due to an undiagnosed illness. 3. Entitlement to service connection for nosebleeds, to include as due to an undiagnosed illness. 4. Entitlement to service connection for bleeding gums, to include as due to an undiagnosed illness. 5. Entitlement to service connection for back symptoms (claimed as scoliosis), to include as due to an undiagnosed illness. 6. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 7. Entitlement to service connection for blurred vision, to include as due to an undiagnosed illness. 8. Entitlement to service connection for a foot rash, to include as due to an undiagnosed illness. 9. Entitlement to service connection for throat pain, to include as due to an undiagnosed illness. 10. Entitlement to service connection for aching joints, to include as due to an undiagnosed illness. 11. Entitlement to service connection for stomach pain, to include as due to an undiagnosed illness. 12. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat INTRODUCTION The veteran had active duty for training from November 1989 to March 1990 and active duty from October 1990 to May 1991. This case comes to the Board of Veterans' Appeals (Board) from a February 1999 rating decision. The veteran filed a notice of disagreement in May 1999, the RO issued a statement of the case in October 1999, and the veteran perfected his appeal later that same month. The Board previously remanded this case in July 2003. In October 2002, a hearing was held at the RO before the undersigned Veterans Law Judge, who is rendering the final determination in these claims and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The claim concerning orthostatic lightheadedness is addressed in the decision portion below. The remaining claims shown on the title page are addressed in the REMAND portion and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran served in the Southwest Asia theater of operations from November 28, 1990, to April 20, 1991. 2. The veteran has reported dizziness since at least 1995, and has sought treatment for this symptom in a clinical setting on several occasions thereafter; a VA physician has concluded that the veteran has orthostatic lightheadedness, but has not otherwise assigned a clinical diagnosis to this symptom. CONCLUSIONS OF LAW 1. The appellant is a Persian Gulf veteran. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2004). 2. Service connection for orthostatic lightheadedness, as due to an undiagnosed illness, is warranted. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317, 4.87, Diagnostic Code 6204 (as in effect prior to and since March 1, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Finally, a veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303(d). On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asian theater of operations during the Persian Gulf War. To implement the Persian Gulf War Veterans' Act, VA added a regulation, 38 C.F.R. § 3.317. This regulation has changed a number of times during the veteran's appeal. As originally constituted, the regulation established the presumptive period as not later than two years after the date on which the veteran last performed active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. Effective November 9, 2001, the period within which such disabilities must become manifest to a compensable degree in order for entitlement for compensation to be established was extended to December 31, 2006. 66 Fed. Reg. 56,614 (November 9, 2001) (codified as amended at 38 C.F.R. § 3.317). Effective March 1, 2002, the statutes affecting compensation for disabilities occurring in Gulf War veterans were amended. See Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, 115 Stat. 976 (2001). Among other things, these amendments revised the term "chronic disability" to "qualifying chronic disability," and included an expanded definition of "qualifying chronic disability" to include (a) an undiagnosed illness, (b) 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 (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B). The regulation concerning service connection for manifestations of undiagnosed illness now reads as follows: (a)(1) Except as provided in paragraph (c) of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) 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 percent or more not later than December 31, 2006; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service- connection. (ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. (3) For purposes of this section, "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. (4) For purposes of this section, 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 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. (5) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (6) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. (c) Compensation shall not be paid under this section: (1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) If there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) If there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (d) For purposes of this section: (1) The term "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. (2) 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. The veteran's DD Form 214 confirms that he had active duty in the Southwest Asia theater of operations from November 28, 1990, to April 20, 1991. Therefore, he is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asia theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. The documents currently in the service medical records folder reflect that at an October 1989 examination for enlistment in the Army Reserves, the veteran denied any history of dizziness or fainting spells. Neurologic examination was normal. Service medical records dated between November 1989 and January 1995 are not currently available. However, the Board has already concluded that the veteran did, in fact, have active duty in the Southwest Asia theater of operations. At a February 1995 quadrennial examination, the veteran reported (in pertinent part) a history of dizziness. Neurologic examination was normal. At a November 1997 examination, the veteran denied any history of dizziness and a neurologic examination was normal. At a December 1997 VA examination, the veteran reported (in pertinent part) that if he arose from bed quickly in the morning, he would feel lightheaded for a few seconds. He did not describe vertigo and had never actually lost consciousness. On examination, he was alert, attentive, and oriented to person, place, and time. Pupils were equal and reactive to light. Following the examination, however, the VA physician's impressions included mild orthostatic lightheadedness. During an August 1998 VA outpatient visit, the veteran reported dizziness in the morning and a constant ringing in his ears. After an examination, he was diagnosed as having tinnitus (no diagnosis relating to dizziness was made). The veteran continued to complain of morning lightheadedness during an outpatient visit in October 1999. At a February 2000 local hearing, he complained of constant dizziness. At a September 2000 Army Reserves examination, the veteran again reported that he would lose consciousness if he got out of bed too fast. At his October 2002 Board hearing, the veteran testified that he had lightheadedness in service, and that it had remained intermittently since then. In this case, the veteran has reported symptoms dizziness since 1995, and although a VA examiner has concluded that he has "orthostatic lightheadedness," the veteran's dizziness has effectively remained undiagnosed. Since the veteran's dizziness symptoms began after his period of active duty in the Southwest Asia theater of operations, they must have been manifested to a degree of 10 percent or more not later than December 31, 2006, for purposes of service connection under 38 C.F.R. § 3.317. The most analogous rating criteria for dizziness is Diagnostic Code 6204, which evaluates peripheral vestibular disorders. 38 C.F.R. § 4.87, Diagnostic Code 6204. Under this rating criteria, occasional dizziness is evaluated as 10 percent disabling. The veteran complained of dizziness in clinical settings in February 1995, December 1997, August 1998, October 1999, and September 2000. This arguably rises to the level of "occasional dizziness," which warrants a compensable rating under Diagnostic Code 6204 and thus fulfills the requirements of 38 C.F.R. § 3.317(a)(1)(i). Accordingly, the Board concludes that the evidence favors a grant of service connection for orthostatic lightheadedness as due to an undiagnosed illness. 38 U.S.C.A. § 1117. In light of this result, a detailed discussion of VA's various duties to notify and assist regarding this claim is unnecessary (because any potential failure of VA in fulfilling these duties is essentially harmless error). ORDER Service connection for orthostatic lightheadedness, as due to an undiagnosed illness, is granted. REMAND Some of the veteran's service medical records have been associated with the claims folder. However, there are no service medical records dated between November 1989 and January 1995 (nearly a 6-year period which includes the veteran's tour of duty in the Southwest Asia theater of operations). As noted previously, the veteran had active duty for training from November 1989 to March 1990 and active duty from October 1990 to May 1991. His DD Form 214 indicates that his Reserve obligation termination date was in October 1997. Yet the claims folder also indicates that he underwent an Army Reserves examination as recently as September 2000, and in an October 2001 letter, the U.S. Army Reserve Personnel Command confirmed that the veteran was still assigned to a U.S. Army Reserve Troop Program Unit. Therefore, the AMC should confirm all the veteran's dates of service in the Army Reserves. If the veteran is still active in the Army Reserves, then (as outlined in M21-1, Part III, Chapter 4.01) his service medical records should be held by the personnel office of his Service Reserve Unit. If the veteran has completed his Reserves obligation, then the National Personnel Records Center (NPRC) should have his records. However (as noted in M21-1, Part III, Chapter 4.01(h)(1)), VA's Records Management Center (RMC) might also have copies of the service medical records. On remand, the AMC should follow the development for service medical records as outlined in M21-1, Part III, Chapter 4 and complete all logical follow-up development therewith (including possibly contacting the veteran's Service Reserve Unit, the NPRC, and/or the RMC). If the missing service medical records cannot be obtained, the AMC should advise the veteran about alternate sources of evidence (as detailed below). See M21-1, Part III, Chapter 4.25. Although the veteran underwent several VA examinations in December 1997, the law pertaining to service connection for symptoms of an undiagnosed illness has since changed and now mandates consideration of "medically unexplained chronic multi-symptom illnesses" such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. Since the veteran is seeking service connection for (among other things) fatigue, joint aches, and stomach pain, a new examination would be helpful in evaluating his claims (as detailed below). Updated treatment records should be obtained before the examination is scheduled. Finally, the Board notes that in December 2004 and January 2005, the veteran submitted three "buddy" statements from soldiers who had served with him during the Gulf War. These lay statements include information about the veteran's symptoms during and after his service in the Southwest Asia theater of operations. These documents were - obviously - received after the RO issued the last supplemental statement of the case in October 2004. Neither the veteran nor his representative have waived RO review of these documents, and therefore they must be returned for initial consideration. Accordingly, the Board REMANDS this case for the following: 1. Obtain written verification from the NPRC of all the specific dates and type of the veteran's periods of service (including in the Army Reserves). 2. Ensure that the M21-1 procedures for seeking service medical records of veterans who have had or currently have service in the Army Reserves are followed. See M21-1, Part III, Chapter 4.01. 3. If the service medical records in question are not located, develop this case according to applicable criteria pertaining to disposition of cases where service medical records are lost. This includes notifying the veteran that he can submit alternate evidence, including, but not limited to, statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records and insurance examination reports. See M21-1, Part III, Chapter 4.25. 4. Ask the veteran to provide a list of the names and addresses of all private and VA doctors and medical care facilities (hospitals, HMOs, VA Medical Centers, etc.) that have treated him since October 2004 (the last time VA treatment records were associated with the claims file). Provide him with release forms and ask that a copy be signed and returned for each health care provider identified, and whose treatment records are not already contained within the claims file. When the veteran responds, obtain records from each health care provider he identifies (except where VA has already made reasonable efforts to obtain the records from a particular provider). If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the veteran of the records that could not be obtained, including what efforts were made to obtain them. Also inform the veteran that adjudication of his claims will be continued without these records unless he is able to submit them. Allow an appropriate period of time within which to respond. 5. Afford the veteran a new examination. Ensure that the claims folder is made available to the examiner, who should carefully review it before the examination. Such tests as the examiner deems necessary should be performed. Instructions for the examiner: a. Elicit from the veteran details about the onset, frequency, duration, and severity of all complaints relating to his symptoms of bleeding gums, chest pain/shortness of breath, back symptoms, nosebleeds, fatigue, blurred vision, foot rash, throat pain, aching joints, stomach pain, and headaches, and indicate what precipitates and what relieves them. b. Indicate whether there are any objective medical indications that the veteran is suffering from symptoms of bleeding gums, chest pain/shortness of breath, back symptoms, nosebleeds, fatigue, blurred vision, foot rash, throat pain, aching joints, stomach pain, and/or headaches. c. State whether each of the veteran's claimed symptoms are attributable to a diagnosed illness, an undiagnosed illness, or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, and/or irritable bowel syndrome. 6. If the examination report is inadequate for any reason or if all questions are not answered specifically and completely, return it to the examining physician for revision. 7. Thereafter, if the benefits sought on appeal remain denied, provide the veteran and his representative with a supplemental statement of the case which references all relevant actions taken on the claims for benefits, summarizes the evidence (including the three "buddy statements" submitted by the veteran in December 2004 and January 2005), and discusses all pertinent legal authority (including the most recent version of 38 C.F.R. § 3.317). Allow an appropriate period for response. Thereafter, return the case to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Expeditious handling is required of all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC). See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes); see also M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs