Citation Nr: 1017204 Decision Date: 05/10/10 Archive Date: 05/26/10 DOCKET NO. 08-19 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness. 2. Entitlement to service connection for plantar warts, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a heart murmur, to include as due to an undiagnosed illness. 4. Entitlement to service connection for restless leg syndrome, to include as due to an undiagnosed illness. 5. Entitlement to service connection for gastroesophageal disease (claimed as nausea), to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to February 1992. Further, the record reflects he had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the current appellate claims. The Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge in February 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the GERD claim. Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board notes that medical records were added to the file subsequent to the RO's last adjudication of the appellate claims via the June 2008 Statement of the Case (SOC). Further, it does not appear the Veteran explicitly waived having such evidence initially considered by the agency of original jurisdiction. However, the Board observes that these records either concern medical conditions that are not currently part of this appeal, or reiterate findings that were known at the time the RO last adjudicated these claims. As such, this evidence is not pertinent to the resolution of the appeal. Therefore, there is no prejudice to the Veteran by the Board proceeding with adjudication of his appeal without remanding this evidence for initial consideration by the RO. See 38 C.F.R. § 20.1304(c) (2009); Bernard v. Brown, 4 Vet. App. 384 (1993). As an additional matter, the Board notes that the Veteran has raised claims of entitlement to service connection for disabilities of the back and neck, as well as posttraumatic stress disorder (PTSD). Further, the record reflects the RO has begun development of these claims, exemplified in part by the fact that he was sent letters regarding these claims in September 2008, March 2009, April 2009, and July 2009. Moreover, he was accorded VA medical examinations regarding these claims in March and June 2009. Nevertheless, the documents assembled for the Board's review do not reflect these claims have, as yet, been formally adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the issues adjudicated by this decision have been completed. 2. The Veteran has active service in the Southwest Asia theater of operations during the Persian Gulf War. 3. Fibromyalgia is recognized as a medically unexplained chronic multisymptom illness presumptively associated with active service in the Southwest Asia theater of operations during the Persian Gulf War. 4. The Veteran's plantar warts, heart murmur, and restless leg syndrome are known clinical diagnoses; i.e., they are not due to an undiagnosed illness or a medically unexplained chronic multisymptom illness presumptively associated with active service in the Southwest Asia theater of operations during the Persian Gulf War. 5. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's plantar warts, heart murmur, and restless leg syndrome were incurred in or otherwise the result of active service. CONCLUSIONS OF LAW 1. Service connection is warranted for fibromyalgia. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2009). 2. Plantar warts was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2009). 3. A heart murmur was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2009). 4. Restless leg syndrome was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Initially, the Board observes that, for the reasons expressed below, it concludes that service connection is warranted for fibromyalgia. Therefore, no further discussion of the VCAA is warranted with respect to these claims as any deficiency has been rendered moot. With respect to the other appellate claims adjudicated by this decision, the United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in June 2007, which is clearly prior to the November 2007 rating decision that is the subject of this appeal. In pertinent part, this letter informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the June 2007 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records including from the Social Security Administration (SSA). Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the February 2009 Board hearing. Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested. Lay statements have also been submitted and considered in this case. The Board acknowledges that no VA medical examination was specifically accorded to the Veteran regarding his current appellate claims. However, for the reasons detailed below, the Board finds that no such development is warranted based on the facts of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis Service connection may be established for a 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition to the general rules detailed above, service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active 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 September 30, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The record reflects the Veteran did have active service in the Southwest Asia theater of operations during the Persian Gulf War. As such, the aforementioned provisions are applicable to the instant case. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under subsection (D) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B)(1). Objective indications of a 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section, however, 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 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 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. 38 C.F.R. § 3.317(c). Initially, the Board notes that, as detailed above, fibromyalgia is recognized as a medically unexplained chronic multisymptom illness presumptively associated with active service in the Southwest Asia theater of operations during the Persian Gulf War. Further, treatment records dated in 1999 reflect the Veteran was diagnosed with fibromyalgia. The Board notes that, in denying the claim below, the RO found that records dated in June 1999 had a working diagnosis of fibromyalgia; records dated in December 1999 show a diagnosis of myalgia; and that subsequent treatment records note a history of fibromyalgia but there was no record of any recent treatment or diagnosis of fibromyalgia. As such, it appears the RO denied the claim because the diagnosed fibromyalgia had apparently resolved. Further, the Board notes that the RO's description of the treatment record findings regarding fibromyalgia are an accurate summation thereof. However, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. The Board also notes that there is no affirmative evidence that the fibromyalgia was not incurred during active service; nor that it was caused by a supervening condition or event that occurred between the Veteran's period of active service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; nor is there affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. In addition, the Court, noted in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, 1 supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for fibromyalgia pursuant to the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In regard to the other appellate claims, the Board observes that the Veteran's plantar warts, heart murmur, and restless leg syndrome are known clinical diagnoses. Further, more recent medical records, including a June 2009 VA medical examination, indicate his leg problems are attributable to radiculopathy, apparently due to his disabilities of the back and/or neck. Simply put, these conditions are not due to an undiagnosed illness or a medically unexplained chronic multisymptom illness presumptively associated with active service in the Southwest Asia theater of operations during the Persian Gulf War. Therefore, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable to these claims, and no further consideration is warranted thereof. With respect to whether service connection is otherwise warranted for these disabilities, the Board observes that the Veteran's service treatment records contain no findings indicative of the current plantar warts, heart murmur, and/or restless leg syndrome. Additionally, the record indicates that all of these disabilities were first diagnosed years after the Veteran's separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board further finds that there is nothing in the record which suggests a link between these current disabilities and the events of the Veteran's active service. Moreover, the Board concludes that no development on this matter is warranted in this case. In the absence of evidence of in- service incurrence or aggravation of the claimed disabilities, referral of this case for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical nexus opinion would not be supported by what actually occurred in service. Simply put, there is no relevant complaint or clinical finding for a clinician to link the claimed disabilities to the veteran's military service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence). In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's plantar warts, heart murmur, and restless leg syndrome were incurred in or otherwise the result of active service. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims must be denied. ORDER Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness, is granted. Entitlement to service connection for plantar warts, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for a heart murmur, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for restless leg syndrome, to include as due to an undiagnosed illness, is denied. REMAND Unlike his other service connection claims discussed above, the Veteran's service treatment records reflect he was treated on multiple occasions for complaints of diarrhea, nausea and vomiting, to include records dated in March and October 1989. These records indicate the complaints were assessed as gastritis and upper respiratory infection, respectively. In other words, he was not diagnosed with GERD while on active duty. Nevertheless, as these in-service complaints are consistent with the symptomatology associated with the Veteran's current GERD, the Board is of the opinion that competent medical evidence is necessary in order to resolve whether the GERD is causally related to these in- service complaints. Therefore, a remand is required for a competent medical examination and opinion regarding this claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his GERD since June 2008. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and etiology of his GERD. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. Following evaluation of the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the current GERD was incurred in or otherwise the result of the Veteran's active service, to include his treatment for diarrhea, vomiting and nausea therein. A complete rationale for any opinion expressed should be provided. 3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC, which addresses all of the evidence obtained after the issuance of the June 2008 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. 2009). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs