Citation Nr: 0810192 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-19 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to a separate compensable evaluation for a chronic disability manifested by mood swings. 2. Entitlement to service connection for a chronic disability manifested by symptoms of joint pain in the right ankle. 3. Entitlement to service connection for a chronic disability manifested by symptoms of joint pain in the left ankle. 4. Entitlement to service connection for a chronic disability manifested by symptoms of joint pain in the right shoulder. 5. Entitlement to service connection for a chronic disability manifested by symptoms of joint pain in the left shoulder. 6. Entitlement to service connection for a chronic disability manifested by symptoms of muscle pain and numbness in the right arm other than what has been diagnosed as carpel tunnel syndrome. 7. Entitlement to service connection for a chronic disability manifested by symptoms of muscle pain and numbness in the left arm other than what has been diagnosed as carpel tunnel syndrome. 8. Entitlement to service connection for a chronic disability manifested by symptoms of joint and muscle pain and numbness of the left hand. REPRESENTATION Appellant represented by: Dan Gallagher, Esq. WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from July 1978 to February 1979, from March 1980 to April 1988, and from May 1988 to March 1990. The veteran's service personnel records also show he served as a member of the National Guard until February 1980. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana in which service connection for undiagnosed Gulf War illness manifested by muscle and joint pain/numbness, memory problems, and mood disturbance was denied. Service personnel records reflect that the veteran served on board the USS Enhancer, a mine sweeper deployed to the Persian Gulf in 1988 and 1989. However, the veteran was discharged in March 1990, several months prior to the recognized start of the Persian Gulf War in August 1990. Therefore, while acknowledging the fact of the veteran's service in the southwest theatre of operations, his service is not recognized under the regulations as Persian Gulf service for the purpose of service-connecting undiagnosed illnesses. In October 2005 and May 2006 the Board therefore recharacterized the issue as one of a chronic disorder with symptoms to include joint and muscle pain, numbness and mood swings; acknowledged that service connection had since been granted for lower back, left and right knee disabilities, and residuals of laceration to the right lower extremity; and remanded the claim for further development, to include asking the veteran to identify the specific additional muscle and joint conditions he wished to pursue. The RO sent letters to the veteran in December 2005 and June 2006. The veteran responded in August 2006 with information concerning his current treatment, but did not offer any illuminating information on what conditions he was claiming. In February 2007, the veteran reported during VA examination that he wished to claim service connection for bilateral shoulder and upper extremity conditions, bilateral ankle conditions, and a left hand condition which he described as the residuals of being stabbed with a screwdriver. Given that the veteran was twice asked to clarify the conditions for which he sought service connection and did not respond, the disabilities the veteran identified in his February 2007 VA examination will be accepted as those conditions for which he seeks service connection. If the veteran wishes to reopen previously denied claims or to claim additional disabilities, he must file these claims with the RO. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The veteran testified before a Veterans Law Judge in June 2005. A transcript of the hearing is associated with the claims file. Since then, the Veterans Law Judge before whom the veteran testified has retired. The veteran was afforded an opportunity to testify before a Veterans Law Judge who would participate in this decision, but in January 2008, the veteran indicated he did not wish a new hearing. The claims for entitlement to service connection for chronic disabilities manifested by symptoms of joint pain in the right and left ankles, right and left shoulders; of symptoms of muscle pain and numbness in the right and left arms other than carpal tunnel syndrome; and of joint and muscle pain and numbness of the left hand addressed in the REMAND portion of the decision below are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Chronic mood swings are a component of the veteran's service- connected acquired psychiatric disorder. CONCLUSION OF LAW The criteria for a separate, compensable evaluation for a chronic disorder manifested by symptoms of mood swings have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION II. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice in March 2001. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. Subsequent additional notice, including of the laws regarding degrees of disability or effective dates for any grant of service connection was given in March 2006. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran VA examinations, and afforded the veteran the opportunity to give testimony before the Board which he did in June 2005. All known and available records have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Service Connection Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis if the claimed disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The veteran seeks entitlement to service connection for a chronic disability manifested by symptoms of mood swings. However, the medical evidence establishes that the veteran's mood swings are part and parcel of his service connected acquired psychiatric disorder. The veteran is service connected for an acquired psychiatric disorder, variously diagnosed. In June 2007, a VA records review was conducted of the veteran's claims file. The examiner, a physician who had evaluated the veteran on two previous occasions proffered the opinion that the veteran did not manifest a mood disorder. The physician based his opinion on review of VA and private treatment records from 2000 forward, and on clinical findings. These records, the physician observed, did not show complaints or observations of depression or findings of a mood disorder, although private treatment records showed a diagnosis of post-traumatic stress disorder. The physician is a Ph.D. No further information about the physician's qualifications is presented in the record. In July 2007, a second records review was conducted. The examiner explained that the veteran was service connected for, and has been most recently diagnosed with, a simple phobia. Phobias, the examiner observed, involve mood swings, as do many psychiatric disorders. The examiner opined that the veteran's mood swings were part of his already service connected disabilities, which includes his service connected acquired psychiatric disorder. The examiner is an M.D. and staff physician. No further information about the examiner's qualifications is presented in the record. The opinions both involved review of the veteran's claims file and, on their face, are adequate. There is nothing in the file to suggest one physician is more qualified than the other to make such an opinion, and each gave an appropriate rationale. However, the July 2007 review is subsequent to, and presumably included review of the June 2007 review. In addition, the examiner in July 2007 referenced one of the examinations conducted by the physician who provided the June 2007 opinion. It is therefore presumed that the July 2007 opinion is the more probate. The opinions concur in a finding that there is no new or separate psychiatric disability diagnosed as a mood disorder. The June 2007 opinion underscored this most clearly, in noting that evidence did not support a diagnosis of a mood disorder. However, the June 2007 opinion did not address the veteran's symptoms of mood swings. In contrast, the July 2007 opinion noted that mood swings are a symptom of most psychiatric disorders, including the simple phobia with which the veteran was diagnosed, and that the veteran did exhibit mood swings. The medical evidence presents no other opinions or findings against a finding that the veteran's manifested mood swings are part and parcel of his service-connected acquired psychiatric disorder. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and a separate, compensable evaluation for a chronic disability manifested by mood swings is not warranted. Notwithstanding, the veteran has been found to exhibit mood swings that have been found to be part and parcel of his already service-connected acquired psychiatric disorder. Symptoms of mood swings should therefore be considered in evaluating the veteran's service-connected acquired psychiatric disorder. ORDER A separate, compensable evaluation for a chronic condition manifested by mood swings is denied. REMAND The veteran seeks service connection for chronic disabilities manifested by symptoms of joint pain in the right and left ankles, right and left shoulders; by symptoms of muscle pain and numbness in the right and left arms other than what has been diagnosed as carpel tunnel syndrome; and by joint and muscle pain and numbness of the left hand. VA examination was conducted in February 2007 and it was determined that the veteran manifested degenerative changes with heel spurs and subchondral sclerosis of the ankles, degenerative changes in the bilateral acromioclavicular joints, and degenerative changes in the left hand. No findings were made with regard to the upper extremities, other than a past diagnosis of carpel tunnel syndrome. However, VA and private treatment records show complaints of and treatment or diagnosis of for left arm pain and left ulnar palsy, and bilateral shoulder impingement, as well as complaints of and treatment for overall generalized muscle and joint pain and weakness. In May 2001 and during testimony before the Board in June 2005, the veteran's spouse testified as to her observations of the veteran's symptoms of pain and of joint and muscle difficulties from his return from the Persian Gulf in 1990 to the present. A private medical statement proffered in July 2000 reflects the opinion that the veteran suffers from generalized myalgias and arthralgias that are the result of his military service. A VA examiner in February 2007 opined that the veteran's diagnosed conditions were not the result of his active service, in part because, other than single treatment for right and left shoulders in 1984, service medical records did not show the injuries the veteran reported. However, review of the veteran's service medical records show treatment for the right foot in 1981 and the left foot 1984, several instances of shoulder treatment including for right shoulder strain with possible dislocation in 1984 and again in 1989, and for left shoulder strain in 1984, and for injury to the left hand when it was shut in a hatch in 1981. As to the injury involving a puncture to his left hand by a screwdriver, which the veteran described in detail, the examiner noted at length that the records simply did not support that this injury occurred. But service medical records show that this injury did occur-albeit to the right hand. The date is unknown, but it happened while the veteran was stationed on board the USS Charleston. While it is observed that either the veteran or the treating medical professional misidentified the hand, it is remarkable that the examiner did not mention the incident, if only to clarify that the injury occurred to the right, rather than to the left, hand. These omissions demonstrate that the examiner's review of the record was, at best, not complete. Hence, the February 2007 VA examination cannot be considered adequate for the purposes of deciding the veteran's claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, given the veteran's statements and that of his witnesses concerning his manifestations of symptomatology from discharge from active service to the present, and the record of continuing treatment in the medical evidence, further VA examination is required to determine the nature, extent, and etiology of the veteran's claimed conditions. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with all appropriate notice. 2. Schedule the veteran for examination with an examiner who has not yet examined the veteran to determine the nature, extent, and etiology of his claimed right and left ankle, right and left shoulder, right and left arm, and left hand conditions. All indicated tests and studies should be performed. The claims folder, including all newly obtained evidence, and a copy of this remand, must be provided to the examiner in conjunction with the examination. The examiner is to provide opinions as to whether it is at least as likely as not that any diagnosed right and left ankle, right and left shoulder, left hand, and right and left arm disabilities (other than carpal tunnel syndrome) had their onset during active service or are in any way the result of active service. All opinions expressed must be supported by complete rationale. 3. After completion of the above, and any additional development deemed necessary, readjudicate the veteran's claims for service connection for chronic disabilities manifested by symptoms of joint pain in the right and left ankles, right and left shoulders; of symptoms of muscle pain and numbness in the right and left arms other than carpal tunnel syndrome; and of joint and muscle pain and numbness of the left hand. If any of the benefits sought on appeal are not granted, the veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an opportunity for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is so informed. 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). The veteran is advised that failure to appear for scheduled VA examination without good cause could result in the denial of his claims. 38 C.F.R. § 3.655 (2006). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. 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. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs