Citation Nr: 1100075 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 09-12 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a disability of the left shoulder, possibly Hirayama disease, to include as due to an undiagnosed illness pursuant to 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to September 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied service connection for hepatitis C, a left shoulder condition, and a total disability rating based on individual unemployability due to service connected disability (TDIU). The Veteran's Notice of Disagreement (NOD) with that determination was received at the RO in September 2008. The NOD specifically appealed the issues of service connection for hepatitis C and service connection for a left shoulder condition. Service connection was subsequently granted for hepatitis C by way of a January 2009 rating decision. Regarding the left shoulder claim, the RO issued a Statement of the Case (SOC) addressing that issue in January 2009. The Veteran's substantive appeal (VA Form 9) was received at the RO in May 2009. In August 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge at VA's Central Office in Washington, DC. A transcript of his testimony is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a left shoulder disability. Medical records in the claims file reflect that the Veteran sought treatment for left shoulder pain and weakness beginning in 2007. He presented with significant and noticeable atrophy of the left shoulder. The Veteran asserts that his left shoulder disability is an undiagnosed illness that warrants service connection pursuant to 38 C.F.R. § 3.317 based on service in the Southwest Asia Theater of Operations during the Persian Gulf War. Service connection may be granted for a disability resulting from an injury sustained or disease incurred in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic disorders, such as psychoses and arthritis, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d). Because the veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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 not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom 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 multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). "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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a)(4). As noted, the Veteran did serve in Southwest Asia. He has been recognized for that service by way of his medals as noted on his DD Form 214. A September 2007 VA orthopedic note indicates that the Veteran could not recall any trauma to the shoulder that would have caused any left shoulder pain, which, at that time, had been going on for about one year. The Veteran reported that the shoulder pain initially started with overhead activities, but then progressed to some mild weakness with certain movements especially overhead movements, and then he began to notice weakness with motion below the shoulder. Most concerning was that he noticed considerable atrophy of the left shoulder, compared to the right. Medical records, including EMG/NCS studies revealed median nerve and ulnar neuropathy on the left. Other medical records indicate that the Veteran suffers from focal atrophy of the left anterior half of the spine cord from C3-4 to C5-6, consistent with benign focal amyotrophy, or "Hirayama disease." At a VA neurology examination in October 2008, the examiner stated that the Veteran's underlying condition had and "unknown etiology." Furthermore, a staff radiologist sated that the etiology of the Veteran's cervical spine cord lesion was not clear. At his personal hearing in August 2010, the Veteran testified that he had recently received additional VA treatment including a magnetic resonance imaging (MRI), and that he had an upcoming appointment in early September with a consultant. The Veteran also testified that he was told by his VA doctor that his condition his neurological in nature, and not orthopedic, and that he may have a form of ALS. In addition, the Veteran testified that the pain and weakness was beginning to affect his other extremities as well. Significantly, the RO, in the denial of the Veteran's claim, focused on the diagnosis of Hiyarama's disease; however, that diagnosis was never actually provided; it was merely suggested as a possibility. As such, it is not altogether clear whether the Veteran has a diagnosed disability of the right shoulder to account for his symptoms. In other words, there is no definitive diagnosis of Hiyarama's disease, and no definitive diagnosis of ALS, or of any other specific disability to account for the Veteran's symptoms at this juncture. A VA examination is necessary to determine whether the Veteran is suffering from an undiagnosed illness within the meaning of 38 C.F.R. § 3.317. Moreover, all VA All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, all the Veteran's VA treatment records since November 2008 should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all pertinent VA records dating from November 2008. 2. Schedule the Veteran for a VA Gulf War protocol examination by a neurologist to determine the current nature and likely etiology of any qualifying chronic disability pursuant to 38 C.F.R. § 3.317, including, but not limited to a chronic multi-symptoms illness manifested by joint pain and weakness in the left shoulder and any other affected muscles/joints/extremities. All indicated tests should be completed. The claims file, including a copy of this remand, should be made available to the examiner for review in conjunction with the examination. Based on a review of the entire record, including, but not limited to, the Veteran's reported history, the service treatment records and post-service treatment records, and, the August 2010 hearing transcript, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher likelihood) that the Veteran's current report of pain and weakness in the left shoulder, and other muscles/joints/ extremities, if any, is part of a medically unexplained chronic multi-symptom illness or an otherwise undiagnosed illness. In so doing, the examiner should consider whether the Veteran has a diagnosis of Hiyarama's disease and/or a form of ALS. If his symptoms are attributable to a known diagnosis, provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the diagnosed condition originated in service or is related to active service. A complete rationale should accompany all opinions expressed. 3. Readjudicate the Veteran's claim. If any action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate opportunity to respond before the case is returned to the Board. 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. 2010). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).