Citation Nr: 1035245	
Decision Date: 09/17/10    Archive Date: 09/21/10

DOCKET NO.  05-15 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1.  Entitlement to service connection for a generalized joint 
pain/fatigue syndrome involving the shoulders, wrists, hips, and 
ankles as due to an undiagnosed illness.

2.  Entitlement to service connection for joint pain of the 
elbows as due to an undiagnosed illness.

3.  Entitlement to service connection for an acquired psychiatric 
disorder manifested by anxiety and sleep impairment, to include 
post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran had active service from August 1989 to December 1992.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a July 2003 rating determination of a Regional 
Office (RO) of the Department of Veterans Affairs (VA) in 
Lincoln, Nebraska.  The Veteran testified before the undersigned 
Veterans Law Judge in July 2006 at the Lincoln RO; a transcript 
of that hearing is associated with the claims folder.

The issue of entitlement to service connection for an acquired 
psychiatric disorder, to include PTSD, being remanded is 
addressed in the REMAND portion of the decision below and is 
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 during the Persian Gulf War.  

2.  The evidence tends to establish that a generalized joint 
pain/fatigue syndrome involving the shoulders, wrists, hips, and 
ankles is attributable to undiagnosed illness as a result of 
service in the Persian Gulf.  

3.  A separately identifiable chronic disability manifested by 
elbow pain is not established.  


CONCLUSIONS OF LAW

1.  Disability manifested by a generalized joint pain/fatigue 
syndrome involving the shoulders, wrists, hips, and ankles was 
incurred during Persian Gulf service.  38 U.S.C.A. §§ 1110, 1117 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 
(2009).

2.  A chronic disability of the elbows was not incurred or 
aggravated in service, and may not be presumed to be due to 
undiagnosed illness incurred during Persian Gulf service.  38 
U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.303, 3.304, 3.317 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Criteria

Service connection may be granted for disability resulting from 
disease or injury incurred or aggravated in service.  38 U.S.C.A. 
§1110 (West 2002 & Supp. 2009).  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.  

For the showing of chronic disease in service there is required a 
combination of manifestations sufficient to identify the disease 
entity, and sufficient observation to establish chronicity at the 
time.  If chronicity in service is not established, a showing of 
continuity of symptoms after discharge is required to support the 
claim. Service connection may be granted for any disease 
diagnosed after discharge, when all of the evidence establishes 
that the disease was incurred in service.  38 C.F.R. §§ 3.303, 
3.304.

VA is authorized 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 Asia Theater of operations during the Persian Gulf 
War.  38 U.S.C.A. § 1117.

To implement the Persian Gulf War Veterans' Act, VA added a 
regulation, 38 C.F.R. § 3.317.  This regulation has changed 
during the appellant'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 
December 18, 2006, 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, 
2011.  See 38 C.F.R. § 3.317 (2009).

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, 2011; 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.  

Adjudication of a veteran's Persian Gulf service connection 
claims must also include consideration of both the prior and the 
revised criteria.  The General Counsel of VA has held that where 
a law or regulation changes during the pendency of a claim, the 
Board should first determine whether the revised version is more 
favorable to the veteran.  In so doing, it may be necessary for 
the Board to apply both the former and revised versions of the 
regulation.  However, if the revised version of the regulation is 
more favorable, the retroactive reach of that regulation under 38 
U.S.C.A. § 5110(g) can be no earlier than the effective date of 
that change.  See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 
Vet. App. 461, 467 (1997).  

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either event, 
or whether a preponderance of the evidence is against a claim, in 
which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).



Analysis

Initially, the Board notes that there has been a significant 
change in the law with the enactment of the Veterans Claims 
Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326.  The Veteran's claim is being granted.  As such, 
any deficiencies with regard to VCAA are harmless and 
nonprejudicial.

The Veteran asserts entitlement to service connection for 
generalized joint pain, to include aching in the shoulders, hips, 
wrists, and ankles, as due to his service in the Persian Gulf as 
manifestations of undiagnosed illness.  Having considered the 
record, the Board finds a relative equipoise in the evidence and 
thus, a finding in favor of service connection is supportable.  

Service records, to include the Veteran's DD Form 214, verify 
service in the Persian Gulf War, and that the Veteran was 
stationed in Southwest Asia.  Accordingly, the Board concludes 
that the Veteran meets the definition of "Persian Gulf Veteran."  

In citing to a 2003 VA examination report in which a generalized 
pain/fatigue syndrome was noted to be manifested by diffuse 
fatigue with marked musculoskeletal pain and identified as the 
source of the Veteran's joint pain and body aches, the May 2010 
VA examiner determined that the Veteran has a multisymptom 
illness because a specific (known) diagnosis is not achievable, 
noting the Veteran's relevant history and contemporaneous 
documented findings and/or complaints.  The examiner added that 
the Veteran did not meet the criteria for fibromyalgia, chronic 
fatigue syndrome, or an underlying chronic inflammatory or 
autoimmune disease process, noting long-standing vague complaints 
for many years which had slowly progressed over the years.  

In addition, the examiner stated that the Veteran specifically 
denied complaints in regard to the elbows and concluded that 
there was no evidence of any acute or ongoing or chronic 
disability or physical complaint concerning the elbows.  Absent a 
current disability, service connection is not warranted.  See 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992).  

A determination as to whether the Veteran has current disability 
related to service requires competent evidence.  The Veteran is 
competent to report his symptoms, to include pain.  As a layman, 
however, his opinion alone is not sufficient upon which to base a 
determination as to a relationship between service and current 
disability.  Rather, the Board must weigh and assess the 
competence and credibility of all of the evidence of record.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Buchanan 
v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. 
Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 
Vet. App. 303 (2007).  

In this case, the Board has accorded probative value to the VA 
opinion attributing a generalized pain/fatigue syndrome to an 
undiagnosed illness, and concluding that there was no chronic 
disability of the elbows.  The examiner reviewed the claims file 
and a rationale was provided for the opinion based on objective 
findings, reliable principles, and sound reasoning.  

The evidence is in favor of the claim of service connection for 
generalized joint pain/fatigue syndrome involving the shoulders, 
wrists, hips, and ankles.  The preponderance of the evidence is 
against the claim of entitlement to service connection for a 
chronic elbow disability, to include as due to undiagnosed 
illness.  Consequently, the benefits sought on appeal are 
granted, in part, and denied, in part.  


ORDER

Service connection for a generalized joint pain/fatigue syndrome 
involving the shoulders, wrists, hips, and ankles is granted.  

Service connection for an elbow disability is denied.  


REMAND

The Veteran asserts entitlement to service connection for an 
acquired psychiatric disorder, to include PTSD.  The Board notes 
that the May 2010 supplemental statement of the case cites  the 
old standard regarding a diagnosis of PTSD.  The regulatory 
standard of "clear diagnosis" was the standard in effect prior to 
March 7, 1997.  See 38 C.F.R. § 3.304(f) (1996).  The current 
regulation requires that a diagnosis of PTSD conform to the 
criteria of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 
DISORDERS, FOURTH ED, American Psychiatric Association (1994) 
(DSM-IV).

The Board further notes that on VA examination in May 2003, the 
Veteran told the examiner that he had been a spotter for the 
Artillery while serving in the Persian Gulf.  He recounted an 
incident in which his vehicle ran over an artillery shell and the 
tire was blown out.  He also recounted driving over an 
antipersonnel mine that turned out to be a dud.  Finally, the 
Veteran indicated that he was trapped by sniper fire for 
approximately one-half hour to one hour.  With respect to the 
last claimed stressor, the Board observes that the veteran 
testified at his July 2006 Board hearing that his unit was pinned 
down by small arms fire in a Kuwaiti village the day after the 
ground war ended.  He also testified that as a Forward Observer 
it was his job to locate any enemies or weapons/equipment 
stockpiles and direct fire to these locations.  

The Board notes that in May 2010, the service department 
responded that the alleged stressors had not been verified, and 
while the AOJ has determined that the Veteran is not a combat 
Veteran, corroboration of every detail, including the veteran's 
personal participation, is not required for a noncombat stressor; 
rather, the veteran only needs to offer independent evidence of a 
stressful event that is sufficient to imply his or her personal 
exposure.  Suozzi v. Brown, 10 Vet. App. 307 (1997).  See also 
Pentecost v. Principi, 16 Vet. App. 124 (2002).  In light of the 
circumstances in this case, further development is necessary.  

In addition, on VA Persian Gulf War Registry examination in July 
1995, a diagnosis of PTSD was entered, and while a May 2003 VA 
psychiatric examination report notes that a formal diagnosis of 
PTSD could not be established until the Veteran's stressor had 
been substantially validated, VA published a final rule that 
amended its adjudication regulations governing service connection 
for PTSD by liberalizing, in certain circumstances, the 
evidentiary standard for establishing the required in-service 
stressor.  75 Fed. Reg. 39843 (July 13, 2010).  

In that regard, the final rule amends 38 C.F.R. § 3.304(f) by 
redesignating current paragraphs (f)(3) and (f)(4) as paragraphs 
(f)(4) and (f)(5), respectively, and by adding a new paragraph 
(f)(3) that reads as follows: 

(f)(3) If a stressor claimed by a veteran is 
related to the veteran's fear of hostile 
military or terrorist activity and a VA 
psychiatrist or psychologist, or a 
psychiatrist or psychologist with whom VA has 
contracted, confirms that the claimed 
stressor is adequate to support a diagnosis 
of [PTSD] and that the veteran's symptoms are 
related to the claimed stressor, in the 
absence of clear and convincing evidence to 
the contrary, and provided the claimed 
stressor is consistent with the places, 
types, and circumstances of the veteran's 
service, the veteran's lay testimony alone 
may establish the occurrence of the claimed 
in-service stressor.  For purposes of this 
paragraph, "fear of hostile military or 
terrorist activity" means that a veteran 
experienced, witnessed, or was confronted 
with an event or circumstance that involved 
actual or threatened death or serious injury, 
or a threat to the physical integrity of the 
veteran or others, such as from an actual or 
potential improvised explosive device; 
vehicle-imbedded explosive device; incoming 
artillery, rocket, or mortar fire; grenade; 
small arms fire, including suspected sniper 
fire; or attack upon friendly military 
aircraft, and the veteran's response to the 
event or circumstance involved a 
psychological or psycho-physiological state 
of fear, helplessness, or horror.

The provisions of this amendment apply to applications for 
service connection for PTSD that are appealed to the Board before 
July 12, 2010 but have not been decided by the Board as of July 
12, 2010, as in this case.  

The Court has held that once VA undertakes a duty to provide a 
medical examination, due process requires VA to notify the 
claimant prior to the adjudication of the claim of any inability 
to obtain evidence sought (including a VA examination with 
medical opinion).  See Barr v. Nicholson, 21 Vet. App. 303, 311 
(2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), 
citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); 
Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the 
Board's duty to return an inadequate examination report "if 
further evidence or clarification of the evidence ... is 
essential for a proper appellate decision").  As such, the Board 
finds that the examination report(s) and/or opinion(s) to be 
inadequate for a determination in regard to the matters on 
appeal.  Thus, an opinion should be obtained, stated in the 
positive or negative in the specific terms noted in paragraph 
number 1 below, in regard to whether the Veteran has PTSD related 
to service.  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should schedule the Veteran for a 
VA psychiatric examination to determine the 
nature and existence of an acquired 
psychiatric disorder, to include PTSD.  The 
claims file must be made available for review 
in conjunction with the examination and the 
examiner's attention should be directed to 
this remand.  All necessary tests should be 
accomplished.  The AOJ should request that 
the examiner express an opinion in terms of 
whether it is "more likely than not" (meaning 
likelihood greater than 50%), "at least as 
likely as not" (meaning likelihood of at 
least 50%), or "less likely than not" or 
"unlikely" (meaning that there is a less than 
50% likelihood) that any identified 
psychiatric disorder(s), including PTSD, are 
related to service.  

The term "at least as likely as not" does not 
mean "within the realm of medical 
possibility."  Rather, it means that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is as medically sound to find in 
favor of that conclusion as it is to find 
against it.  The examiner should provide a 
complete rationale for any opinion provided.

2.  In light of the above, the claim should 
be readjudicated.  The AOJ should review all 
development for completeness and review any 
opinion obtained for adequacy, accomplishing 
any additional action necessary prior to 
returning the claims file to the Board.  If 
the benefits sought on appeal remain denied, 
a supplemental statement of the case should 
be issued and the Veteran afforded a 
reasonable opportunity in which to respond 
thereto.  

The Veteran 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).

_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs