Citation Nr: 1223489	
Decision Date: 07/06/12    Archive Date: 07/13/12

DOCKET NO.  95-23 708	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy, to include as secondary to exposure to non-ionizing microwave radiation, herbicide agents, and other environmental hazards in the Republic of Vietnam.

2.  Entitlement to service connection for fibromyalgia, to include as secondary to a psychiatric disability, tinea versicolor, and peripheral neuropathy, and to exposure to non-ionizing microwave radiation, herbicide agents, and other environmental hazards in the Republic of Vietnam.

3.  Entitlement to service connection for a respiratory disorder, to include as secondary to gastritis and to exposure to non-ionizing microwave radiation, herbicide agents, and other environmental hazards in the Republic of Vietnam.

4.  Entitlement to service connection for vertigo, to include as secondary to tinnitus and peripheral neuropathy and to exposure to non-ionizing microwave radiation, herbicide agents, and other environmental hazards in the Republic of Vietnam.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION


The Veteran served on active duty from November 1966 to October 1968.

This case has a long and complex procedural history.  Specifically, the record shows that the Veteran's claims for service connection for fibromyalgia and a respiratory disorder, claimed as bronchitis, were initially denied in a supplemental statement of the case in July 1995.  Thereafter, his claims for service connection for peripheral neuropathy and vertigo were denied in supplemental statements of the case dated in November 1996 and March 1998.  The Board acknowledges that each of those prior supplemental statements of the case focused primarily on other disabilities, which are no longer on appeal.  Nevertheless, the Board, in May 2000 and June 2004 decisions, determined that those prior supplemental statements of the case were tantamount to initial adjudications with respect to the claims at issue.  The Board also found that the Veteran's written responses to those prior supplemental statements of the case constituted timely notices of disagreement and substantive appeals regarding each of the above claims.  Consequently, the Board determined that each of those claims fell within the scope of its appellate jurisdiction.  Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003).  The Board then proceeded to remand those claims for additional development in May 2000 and June 2004.  

The record thereafter shows that, in the wake of Hurricane Katrina, the RO inadvertently "closed out" the Veteran's fibromyalgia, respiratory disorder, peripheral neuropathy, and vertigo claims without issuing a follow-up supplemental statement of the case.  The RO expressly acknowledged that error in a July 2010 memorandum, which was prepared after the Veteran requested an update on the status of his pending claims.  Development of those claims subsequently resumed and, in October 2011, the Veteran was afforded a series of VA examinations in accordance with the Board's June 2004 remand.  His pending claims were later readjudicated in a December 2011 supplemental statement of the case and are now before the Board.  

In addition to the above claims, the issue of service connection for tinnitus remained pending for several years following the June 2004 remand.  However, that claim was later granted in full in a December 2011 RO rating decision and, thus, is no longer on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

Additionally, the December 2011 rating decision also granted a total disability rating based on individual unemployability due to a service-connected disability (TDIU), effective April 12, 2007.  In subsequent written correspondence, the Veteran argued that his TDIU rating should be retroactively extended to 1995, when he allegedly first became disabled as a result of his service-connected disabilities.  The Board has interpreted the Veteran's request as an implicit claim for an earlier effective date for his unemployability rating.  The Veteran's earlier effective date claim is governed under different statutory criteria than his claim of TDIU entitlement and, thus, constitutes a separate issue from that previously granted claim.  38 U.S.C.A. §§ 1155, 5110 (West 2002).  Accordingly, as the Veteran's earlier effective date claim has not yet been adjudicated in the first instance, the Board lacks jurisdiction over that particular issue and must refer it to the RO for initial consideration.

Next, the Board observes that, prior to its initial May 2000 remand, the Veteran was afforded a November 1999 Travel Board hearing.  That hearing was conducted by a Veterans Law Judge who has since retired from the Board.  Accordingly, in compliance with VA's governing laws and regulations, the Veteran was sent a January 2012 letter notifying him of his right to another hearing before a different Veterans Law Judge. 38 U.S.C.A. § 7107(c) (West 2002); C.F.R. § 20.717 (2011).  However, in a response received the following month, the Veteran indicated that he did not desire another hearing and requested that VA expedite the processing of his appeal.  Therefore, the Board finds that the Veteran has waived his right to a new hearing and, thus, will proceed with consideration of his claims.  

The Board also notes that the second issue on appeal was originally characterized as service connection for bronchitis.  However, the record shows that the Veteran also has been diagnosed with other respiratory disorders, including sleep apnea, chronic obstructive pulmonary disease (COPD), and asthma.  He is not in receipt of service connection for any of those other disorders.  Moreover, the respiratory symptoms for which he now seeks VA benefits could be associated with those other disorders or with bronchitis.  Accordingly, the Board finds that the scope of the Veteran's bronchitis claim should be broadened to include any current respiratory disorder.  Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (when determining the scope of an issue on appeal, the Board has an obligation to broadly construe the claimant's description of the claim, the symptoms he describes, and the information he provides in connection with that claim). 

The Board further notes that, at the time of its prior remands, the Veteran was represented by the Military Order of the Purple Heart of the U.S.A. (MOPH).  However, he subsequently transferred his representation, first to Paralyzed Veterans of America, Inc., and later to the Disabled American Veterans.  Most recently, in December 2010, the Veteran attempted to reappoint MOPH as his representative.   However, in a subsequent February 2010 statement, that service organization indicated that it had declined the Veteran's request.  He has not appointed a new representative and, thus, is now considered a pro se claimant.

As a final introductory matter, the Board acknowledges that, following the issuance of the most recent supplemental statement of the case, one of the VA clinicians who had conducted the Veteran's October 2011 examinations submitted a January 2011 addendum opinion in support of the claim for peripheral neuropathy.  That newly received evidence was associated with the claims folder without a waiver of RO consideration.  38 C.F.R. §§ 19.37, 20.1304 (2011).  Nevertheless, because service connection for peripheral neuropathy is being granted, the appellant is not prejudiced by consideration of the additional evidence submitted with respect to that claim. 


FINDING OF FACT

The preponderance of the competent evidence is at least in equipoise as to whether the Veteran has a current diagnosis of peripheral neuropathy that was caused or aggravated by in-service exposure to non-ionizing microwave radiation, herbicide agents, and other environmental hazards in the Republic of Vietnam.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. § 3.303 (2011).

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 (Fed. Cir. 2000).  Moreover, service connection for certain chronic diseases, including organic diseases of the nervous system, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there must be 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, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2011).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310 (2011).  Secondary service connection is permitted based on aggravation.  Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability.  38 C.F.R. § 3.310 (2011); Allen v. Brown, 7 Vet. App. 439 (1995).  A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309 (1993).  Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  38 C.F.R. § 3.303, 3.310 (2011).

It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its entirety.  Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993).  In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran, in written statements and testimony before the Board and RO, contends that he contracted peripheral neuropathy through in-service exposure to environmental hazards during his tour of duty in Vietnam.  Specifically, he claims to have encountered toxic levels of microwave radiation during his service with the 43rd Signal Construction Battalion on Tropo Hill in Pleiku.  The Veteran also claims to have incurred additional radiation exposure while living in a barracks built "less than 75 feet" from antennas that emitted toxic levels of radiofrequency electromagnetic waves. 
 
As an alternate theory of entitlement to service connection, the Veteran alleges that his peripheral neuropathy is attributable to the Agent Orange that was sprayed while he was in Vietnam.  He further argues that the disorder had its direct onset during his active service.

The Board is required to consider all theories of service connection raised by the appellant or otherwise apparent from the record.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  Accordingly, in light of the Veteran's contentions, the Board will address whether service connection for peripheral neuropathy is warranted due to radiation or Agent Orange exposure.  Additionally, the Board will consider whether to grant the Veteran's claim on a direct basis. 

With respect to the theory of in-service radiation exposure, the Board must focus, as an initial matter, on whether the evidence suggests that the Veteran had actual in-service exposure to ionizing radiation.  38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. §§ 3.309(d), 3.311(b) (2011); Ramey v. Brown, 9 Vet. App. 40 (1996).  The Board finds that none of the VA regulations governing ionizing radiation exposure are applicable in this case.  38 C.F.R. §§ 3.309(d), 3.311(b) (2011).  The Veteran himself has not contended that he was subjected to ionizing radiation during his tour of duty in Vietnam.  On the contrary, he has claimed exposure to microwave emissions, which have been judicially noted to constitute a form of non-ionizing radiation.  Rucker v. Brown, 10 Vet. App. 67 (1997).   

The Veteran's service and post-service medical records are negative for complaints or clinical findings of ionizing radiation exposure.  Nor do those records contain any evidence of diseases presumptively linked to such exposure.  38 C.F.R. § 3.309(d) (2011).  Moreover, the Veteran does not allege that he participated in any "radiation-risk" activities, as set forth in VA's governing regulatory provisions.  38 C.F.R. § 3.309(d)(3)(iv) (2011).  Further, there is no evidence that he had onsite participation in any testing involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain sites specified by regulation.  38 C.F.R. § 3.309(d)(3) (2011).  

Additionally, the Board considers it significant that the Veteran has neither alleged nor been shown to have contracted one of the legally classified "radiogenic diseases" within five years or more of his active service.  38 C.F.R. § 3.311(b)(2) (2011).  He also has neither cited nor submitted competent evidence that supports an alternate finding of a radiogenic disease attributable to ionizing radiation exposure.  38 C.F.R. § 3.311(b)(4) (2011).  Therefore, the Board finds that he does not qualify as ionizing radiation-exposed Veteran under VA's regulatory provisions.  It follows that the Board need not further consider the specific guidelines governing ionizing radiation claims, which require VA to obtain a dose estimate from the Defense Threat Reduction Agency (DTRA) and to refer the Veteran's case to the Under Secretary for Benefits for an opinion as to whether his claimed disease resulted from in-service ionizing radiation exposure.  38 C.F.R. § 3.311 (2011).  Rather, as it appears that the Veteran's peripheral neuropathy claim is predicated on his alleged non-ionizing radiation exposure, the Board's inquiry with respect to such exposure is limited to a theory of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Next, with respect to the assertion of herbicide exposure, the Board observes that any Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2011).  

In this case, the Veteran's personnel records show that he served in Vietnam from January 29, 1968, to November 9, 1968.  Therefore, he is presumed to have been exposed to Agent Orange during his period of active duty.  38 C.F.R. § 3.307(a)(6)(iii) (2011).  However, the disability for which he now seeks VA benefits has not been presumptively related to herbicide exposure.  338 C.F.R. § 3.309(e) (2011).  On the contrary, the VA list of diseases tied to such exposure only includes acute and subacute peripheral neuropathy.  38 C.F.R. § 3.309(e) (2011).  Those specific disorders have neither been contended nor demonstrated in the instant case.  Moreover, while the Veteran now claims to have experienced the initial onset of his peripheral neuropathy within a year of deploying to Vietnam, he does not allege, and the record does not otherwise show, that his symptoms manifested within weeks or months of his initial herbicide exposure and then resolved within two years of the date of onset.  38 C.F.R. §§ 3.307(a)(6) (ii); 3.309(e), Note 2 (2011).  Thus, by the Veteran's own admission, his peripheral neuropathy does not qualify as either "acute" or "subacute" under the applicable regulatory provisions.  38 C.F.R. § 3.307(a)(6)(ii) (2011).    

In light of the foregoing, the Board finds that service connection due to herbicide exposure may not be granted on a presumptive basis.  38 C.F.R. §§ 3.307, 3.309 (2011).  Nevertheless, the Board must still consider whether service connection is warranted on the grounds of actual in-service herbicide exposure, as well as whether the Veteran's claim may otherwise be granted on a secondary or direct basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran's service medical records are devoid of any complains or treatment for radiation- or herbicide-related disorders.  Similarly, those records contain no evidence of peripheral neuropathy or related symptoms at the time of the Veteran's enlistment or at any point up through his deployment to Vietnam.  Nevertheless, the Veteran now maintains that the initial manifestation of his peripheral neuropathy occurred while he was serving overseas.  He also claims to have attempted to seek treatment at that time, but to have been deterred by threats of bodily harm and related abuse perpetuated by an in-country field medic.  

The Veteran's subsequent service medical records show that, shortly after his return from Vietnam and two month prior to his release from service, he sought medical attention for pain localized in his neck, hips, and ankles.  A smear test for malaria was negative and the Veteran's in-service treating providers found no clinical etiology to account for his reported symptoms.  Nevertheless, the Veteran now contends that those reported symptoms of joint and muscle pain were early manifestations of peripheral neuropathy.  However, he does not contend, and the record does not otherwise show, that he sought additional treatment for that disorder at any time prior to his Army discharge.

The Veteran's post-service records show that, beginning in the mid-1990s, he sought periodic treatment for pain and numbness in his upper and lower extremities.  Moreover, VA examinations conducted in 1996 and 2006 yielded diagnoses of peripheral neuropathy concentrated in the fingers, toes, and feet.  However, neither of those examinations resulted in a definitive opinion as to the etiology of that disease.

In accordance with the Board's June 2004 remand, the Veteran was afforded a follow-up VA examination in October 2011.  At that time, the same VA clinician who had previously examined the Veteran acknowledged the prior diagnosis of peripheral neuropathy.  Nevertheless, that examiner determined that diagnosis was no longer warranted as the Veteran's most recent nerve conduction tests had been negative for peripheral abnormalities.  Thereafter, in its December 2011 supplemental statement of the case, the RO used the above examiner's findings as grounds for denying the Veteran's peripheral neuropathy claim due to a lack of current disability.  

One month after the issuance of the above supplemental statement of the case, the same clinician who had conducted the prior VA peripheral nerves examinations issued an addendum opinion reconciling the conflicting findings.  The examiner noted that, subsequent to the Veteran's October 2011 examination, he had presented for a follow-up nerve conduction study, which had revealed distal motor latency of the right peroneal nerve.  The examiner further noted that, while the follow-up study had only focused on the Veteran's right side, the findings contained therein were sufficient to warrant a current diagnosis of sensory distal peripheral neuropathy.  The examiner opined that, based on the results of the follow-up study and the other clinical findings gleaned through his repeated assessments of the Veteran, it was at least as likely not that the Veteran's current peripheral neuropathy had been caused or aggravated by toxic exposure incurred in service.  As a rationale for that opinion, the examiner noted that the Veteran's peripheral neuropathy had arisen in the wake of his Vietnam service and that the symptoms he currently exhibited were all consistent with "toxic neuropathy, mainly axonal, painful and usually distal in distribution."

An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).

The Board finds the VA examiner's January 2012 addendum opinion, indicating that the Veteran has a current diagnosis of peripheral neuropathy that is attributable to in-service toxin exposure, to be both probative and persuasive.  That addendum opinion was based on repeated examinations of Veteran and multiple reviews of his claims folder.  Therefore, that opinion demonstrated a thorough understanding of the Veteran's pertinent lay and clinical history.  Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion).  Moreover, the Board considers it significant that findings contained in that opinion were consistent with the other clinical and lay evidence of record.  Further, those findings constituted the most recent medical opinion evidence and were undertaken directly to address the issue on appeal.  Thus, the Board finds that an additional VA examination is not required with respect to the Veteran's peripheral neuropathy claim.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  On the contrary, additional development would only result in further delay with no benefit to the Veteran.  Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04 (2004), 69 Fed. Reg. 59,989 (2004).  That is because the January 2012 addendum opinion is fully favorable to his peripheral neuropathy claim and, indeed, is sufficient, in tandem with the other evidence of record, to grant that claim.

The Board recognizes that, prior to issuing the addendum opinion, the above VA examiner indicated in his October 2011 report that the Veteran's symptoms did not comport with a diagnosis of peripheral neuropathy.  A lack of a definitive diagnosis is generally fatal to a claim for service connection.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Moreover, while mindful of the Veteran's own complaints of periodic peripheral pain and numbness, the Board observes that subjective symptoms, standing alone, do not constitute a disability for which service connection may be established.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  Nevertheless, the Board considers it significant that, long before the October 2011 report was issued but subsequent to filing his initial service connection claim, the Veteran had been diagnosed with peripheral neuropathy.  That prior diagnosis must be considered as evidence of a current disability in support of his claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  

Additionally, and most significantly, the Board observes that the author of the October 2011 examination report was the same VA clinician who had previously diagnosed the Veteran with peripheral neuropathy.  He was also the clinician who rendered the January 2012 addendum opinion, which effectively addressed and reconciled his earlier inconsistent findings regarding the proper diagnosis and etiology of the Veteran's peripheral nerve complaints.  Sklar v. Brown, 5 Vet. App. 140 (1993).  For the reasons noted above, the Board considers that clinician's addendum opinion to be highly probative and persuasive.  Accordingly, after resolving all reasonable doubt in the Veteran's favor, the Board finds that he has a current diagnosis of peripheral neuropathy and, thus, meets the threshold requirement for service connection for peripheral neuropathy.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Additionally, the Board finds that, while the above VA examiner did not identify the particular in-service toxin that had caused the Veteran's peripheral neuropathy, that lack of specificity is not a bar to granting his service connection claim.  The Veteran has presented lay evidence of exposure to both non-ionizing microwave radiation and herbicides during his tour of duty in Vietnam.  The Board finds that he is competent to testify that he encountered electromagnetic radiowave antennas and herbicides while serving overseas.  Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the Board considers the Veteran's account to be credible as it is consistent with the circumstances of his in-country Vietnam service and there is no countervailing evidence of record.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

Even if the Veteran had not presented competent and credible evidence regarding his actual in-service exposure to environmental hazards, the Board would still find the record to be sufficient to conclude that such exposure occurred.  Indeed, the Veteran's exposure to one such environmental hazard, herbicides, has already been conceded under the presumptive provisions of 38 C.F.R. § 3.307(a)(6)(iii) (2011).  That presumptive finding, in tandem with January 2012 addendum opinion regarding a general nexus between in-service environmental hazards and peripheral neuropathy, and the lack of any competent contrary opinions, weighs strongly in favor of Veteran's claim.

For the foregoing reasons, the Board finds that the evidence of record is at the very least in relative equipoise as to whether the Veteran has a current diagnosis of peripheral neuropathy that is related to an environmental hazard incurred in service.  Accordingly, resolving all remaining reasonable doubt in his favor, service connection for peripheral neuropathy is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As this represents a full award of the benefits sought on appeal, it is unnecessary for the Board to further consider the other theories of entitlement raised in support of the Veteran's claim.


ORDER

Service connection for peripheral neuropathy is granted.


REMAND

The Board sincerely regrets the additional delay in this long-pending appeal.  Nevertheless, due process requires further development prior to the final disposition of the Veteran's remaining claims for service connection for fibromyalgia, a respiratory disorder, and vertigo.

The Veteran has presented several theories in support of the above claims.  First, he has argued that, like his claim for peripheral neuropathy, those other service connection claims should be granted on a presumptive basis due to in-service radiation exposure.  Additionally, the Veteran has alleged that all of the disorders now on appeal are attributable to herbicide exposure.  He has further argued that each of those disabilities is directly related to his active service.  The Veteran also has presented evidence and otherwise contended that his fibromyalgia, respiratory disorder, and vertigo were caused or aggravated by disabilities, including major depression, posttraumatic stress disorder (PTSD), tinea versicolor, gastritis, and tinnitus, for which service connection was previously awarded.  Finally, the Veteran has contended that his fibromyalgia and vertigo share the same etiology, and are characterized by many of the same symptoms, as the peripheral neuropathy for which service connection has now been established.

In light of the Veteran's contentions, the Board must address whether service connection for fibromyalgia, a respiratory disorder, and vertigo is warranted due to in-service radiation or herbicide exposure.  Additionally, the Board must consider whether to otherwise grant the Veteran's claims on either a direct or secondary basis.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  

For the reasons noted in the previous section, the Board has determined that the evidence of record does not support a finding of in-service ionizing radiation exposure warranting a dose estimate from the DTRA and referral to the Under Secretary for Benefits for an opinion as to whether any of diseases now on appeal resulted from such exposure.  38 C.F.R. § 3.311 (2011).  Conversely, the Board has determined that the presumption of herbicide exposure, based on qualifying Vietnam-era service, is applicable in this instance.  38 C.F.R. § 3.307(a)(6)(iii) (2011).  However, none of the disabilities for which the Veteran now seeks VA benefits has been presumptively related to Agent Orange or to any other herbicide agent.  38 C.F.R. § 3.309(e) (2011).  On the contrary, bronchitis, fibromyalgia, and vertigo are notably absent from the VA list of diseases tied such exposure.  38 C.F.R. § 3.309(e) (2011).  Accordingly, in addressing whether service connection due to herbicide exposure is warranted, the Board need only consider whether there is probative evidence of actual in-service causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Additionally, the Board must consider whether the Veteran's claims may be granted under alternate theories of direct and secondary service connection.  

The Veteran's service medical records are silent with respect to complains or treatment for radiation- or herbicide-related disorders.  However, those records contain an isolated August 1968 report of pain localized in the neck, hips, and ankles.  The Veteran now contends that those in-service symptoms were initial manifestations of not only peripheral neuropathy, for which service connection has now been granted, but also fibromyalgia.  Additionally, he now claims that, while stationed in Vietnam, he contemplated seeking further treatment for fibromyalgia and the other disabilities on appeal.  However, the Veteran maintains that he was deterred from doing so by an abusive in-country medic. 

Although a lay person, the Veteran is competent to report a history of in-service muscle and joint pain, which is capable of personal observation.  Layno v. Brown, 6 Vet. App. 465 (1994).  Similarly, he is competent to report threats and verbal abuse that he experienced from an in-service medical provider.  Moreover, the Board has no basis to question the veracity of the Veteran's contentions in that regard.  On the contrary, the Board finds those contentions to be especially credible as they are consistent with the treatment for neck, hip, and ankle pain, noted in the Veteran's service medical records, and with his documented clinical history of personal assault-related stressors.  Indeed, those documented stressors served as a key evidentiary basis for the Veteran's prior award of service connection for PTSD.  Accordingly, the Board finds that the Veteran has presented competent and credible lay evidence of in-service joint and muscle symptoms, while providing a plausible explanation for why he forwent treatment for those symptoms during his tour of duty in Vietnam.  That lay evidence and explanation from the Veteran must be considered in connection with his current claim.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007);

Additionally, the Board finds that, while the record is devoid of any evidence of pertinent post-service treatment for several years after the Veteran's separation from service, the mere absence of clinical evidence is not an automatic bar to his claims.  VA is required to consider the Veteran's assertions of a continuity of relevant symptomatology that has persisted since his active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Moreover, the Board cannot summarily determine that lay assertions lack credibility merely because they are unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Further, the Board must consider the Veteran's reports of a common onset and manifestation of symptoms underlying the disabilities now at issue and the conditions for which service connection has already been established.  As a lay person, the Veteran is competent to report a common history of symptomatology associated with his nonservice- and service-connected disabilities.  Layno v. Brown, 6 Vet. App. 465 (1994).  Nevertheless, he has not demonstrated the requisite expertise to comment on the etiology of those disorders.  Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not capable of opining on matters requiring medical knowledge).  Accordingly, the Veteran's assertions, standing alone, are insufficient to justify an award of service connection, either on a secondary basis or under an alternate theory of entitlement.

While insufficient to grant the Veteran's claims, however, his lay contentions, with the other pertinent evidence detailed above, are enough to warrant additional development of his claims.  Development is necessary to comply with VA's duty to assist, which includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011); Robinette v. Brown, 8 Vet. App. 69, 76 (1995).  In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination).  The Board finds that the low evidentiary threshold has been met with respect to each of the Veteran's pending service connection claims.

While mindful that the Veteran has already been afforded multiple VA examinations throughout the pendency of this appeal, the Board finds that none of those prior examinations was adequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007) (once VA undertakes a VA examination in support of a claim, that examination must adequate).

The initial December 1997 VA examinations addressing the Veteran's fibromyalgia were inconclusive with respect to whether he met the diagnostic criteria for that disease.  Moreover, the examining clinicians determined that, even if a definitive diagnosis of fibromyalgia existed, the etiology of that disease, relative to the Veteran's service, was a "total impossible question to answer."  The Board notes that such opinions are inherently speculative in nature and, thus, of reduced probative value.  Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Swann v. Brown, 5 Vet. App. 229 (1993).  Further, the Board observes that, while the Veteran later underwent a follow-up examination that yielded a definitive diagnosis of fibromyalgia, the clinician conducting that September 2006 examination expressly stated that, because fibromyalgia was a chronic pain disorder of unclear pathophysiology, he could not resolve the issue of etiology without resorting to mere speculation.  

Significantly, while the Veteran's fibromyalgia has been noted as an ancillary issue on his subsequent October 2011 VA examinations, he has not been afforded a recent VA examination that specifically addressed that disease.  The Board recognizes that the mere passage of time since a VA examination does not, in and of itself, warrant additional development.  Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11- 95 (1995), 60 Fed. Reg. 43186 (1995).  Nevertheless, in light of the aforementioned deficiencies with the December 1997 and September 2006 examinations, and the Board finds that a follow-up examination is necessary to fully and fairly address the merits of the Veteran's fibromyalgia claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Moreover, the Board finds that the clinician performing that follow-up examination should render detailed findings with respect to the etiology of the Veteran's fibromyalgia, considering all lay and pertinent evidence of record.  38 C.F.R. § 4.1 (2011).  None of the previous VA examinations conducted with respect to the Veteran's fibromyalgia claim have specifically addressed his in-service treatment for muscle and joint pain, symptoms he now contends were early manifestations of his peripheral neuropathy and fibromyalgia.  Nor have any of those prior examinations focused on the Veteran's extensive post-service treatment for lower extremity numbness and pain and related symptoms.  Similarly, no prior VA examiner has addressed the Veteran's contentions regarding a relationship between his peripheral neuropathy and his in-service exposure to microwave radiation and herbicides.  In addition to his own lay statements, the Veteran has submitted copies of prior Board decisions and Internet-based medical literature, all of which purportedly show a connection between muscle pain and other common symptoms of fibromyalgia and herbicide exposure.  Such evidence is not specific to the facts of the Veteran's fibromyalgia claim and, thus, cannot serve as a stand-alone basis for granting that claim.  Nevertheless, that evidence should be considered by any clinician who conducts an examination in support of that claim.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (medical literature, in combination with a VA examiner's findings, adds to the overall weight of evidence supporting appellant's claim).   

Next, the Board turns to the Veteran's claim for service connection for a respiratory disability.  The record shows that, while he was afforded an October 2011 examination with respect to bronchitis, the examining clinician limited the opinion to whether bronchitis had been directly incurred in service or caused by smoking, without addressing the other theories of entitlement to service connection raised on appeal.  That examiner made no mention as to whether the Veteran's bronchitis had been caused or aggravated by any in-service exposure to microwave radiation or herbicides.  Nor did that examiner address whether an etiological link existed between the Veteran's bronchitis and his service-connected gastritis.  The Board considers that omission to be especially significant in light of its noncompliance with the June 2004 remand, which included a request that the examiner consider whether the Veteran's bronchitis had been caused or aggravated by any service-connected disability.  Stegall v. West, 11 Vet. App. 268 (1998).  Finally, despite noting that the Veteran suffered from multiple other respiratory disorders, including sleep apnea, COPD, and asthma, the October 2011 examiner made no mention as to whether those conditions were in any way service-related.  That omission is also significant since the Board has broadened the scope of the Veteran's claim in order to afford him the opportunity to obtain service connection based upon a nexus between any respiratory disorder and his active service.  Brokowski v. Shinseki, 23 Vet. App. 79 (2009).

In light of the foregoing, the Board finds that, on remand, the Veteran should be afforded a VA examination to address the etiology of any current respiratory disability.  Specifically, the examiner should consider whether any respiratory disability was caused or aggravated by the Veteran's reported in-service exposure to non-ionizing radiation or herbicides, or by any other aspect of his active duty, including his service-connected gastritis.  The examiner should expressly reconcile his findings with those of the October 2011 VA clinician and should also address all other pertinent evidence of record, including the Veteran's written lay statements and testimony before the Board and RO.  38 C.F.R. § 4.1 (2011).

With respect to the Veteran's claim for service connection for vertigo, the Veteran underwent an October 2011 VA ear conditions examination in which his prior diagnosis of vertigo was confirmed.  The clinician who performed that examination did not provide a definitive opinion as to the etiology of that disorder.  Moreover, despite noting a possible link between the Veteran's vertigo and his newly service-connected tinnitus and peripheral neuropathy, the examiner declined to specify whether any of those conditions were, in fact, related.  Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Swann v. Brown, 5 Vet. App. 229 (1993).  Similarly, while the October 2011 examiner noted that vertigo could have many causal factors, the examiner did not opine as to a particular clinical basis for that condition.  The examiner indicated that it was not possible to render an ear, nose, and throat (ENT) opinion as to the etiology of the Veteran's vertigo without further clinical testing to rule out vestibular dysfunction.  The examiner expressly noted that a Magnetic Resonance Imaging (MRI) scan of the head, a computed tomography (CT) temporal bone study, and updated electronystagmographic (ENG) and audiological testing were all needed before a complete etiological picture of the Veteran's vertigo could be obtained.  The examiner also recommended a detailed neurological workup to address any aspect of the disease that could not be explained through ENT studies.

Thereafter, the presiding Decision Review Officer at the RO determined that, without the additional ENT and neurological testing detailed above, the October 2011 examiner's report was insufficient to rate the Veteran's vertigo claim.  However, it does not appear from a review of the paper claims folder or the Virtual VA file that any additional testing has yet been administered.  Accordingly, on remand, the Veteran should be afforded another VA examination that includes both the ENT tests and neurological work-up recommended by the October 2011 examiner.  Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007).  That examination should also include findings responsive to the other theories of entitlement raised in connection with the Veteran's vertigo claim. 

Additionally, the Board notes that pertinent VA and private medical records appear to be outstanding.  The most recent treatment reports from the VA Medical Center in New Orleans and the Veteran's private physician, Kathleen S. Wilson, M.D., show ongoing complaints of symptoms consistent with fibromyalgia.  However, no records dated since August 2011 have yet been associated with the claims folder.  Accordingly, as the Board is now on notice that additional VA records may exist that are relevant to the Veteran's appeal, such records should be obtained on remand.  38 C.F.R. § 3.159(c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992).  Efforts should also be made to obtain any outstanding records from the Veteran's private treating provider.  38 U.S.C.A § 5103A(b)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96 (2005) (VA's duty to assist includes making reasonable efforts to obtain relevant records, including private records, as long as the claimant adequately identifies those records and authorizes VA to obtain them).  Specifically, the Veteran should be asked to complete an updated written authorization for the release of his private physician's records.  It should be explained to him that any prior authorization for the release of that physician's records has now expired and that reauthorization is needed before any additional records may be obtained.  The Veteran also should be notified to submit any pertinent treatment records in his own possession.

Finally, it appears that Social Security Administration (SSA) records may also be outstanding.  The Veteran indicated in an October 2011 statement that he was currently receiving SSA benefits based on multiple disabilities, including fibromyalgia and asthma.  He also submitted a contemporaneous report from that agency chronicling his civilian work history.  However, the Veteran has not submitted, and VA has not yet obtained, a copy of any decision awarding SSA disability benefits.  Moreover, no medical records supporting such a decision have yet been associated with his claims folder.  Because any decision and medical records upon which an award of SSA disability benefits is predicated are relevant to the Veteran's appeal, those documents should be obtained on remand.  Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 413 (1991).

Accordingly, the case is REMANDED for the following actions:

1.  After obtaining the necessary authorization from the Veteran, obtain and associate with the claims folder all outstanding records of treatment by the Veteran's private treating provider, Kathleen S. Wilson, M.D., dated since August 2011.  Explain to the Veteran that any prior authorization for the release of his private medical records has expired, and that he will need to reauthorize the release of any additional records in order for VA to obtain them.  If the Veteran provides the completed release form, request the identified treatment records.  All attempts to secure those records must be documented in the claims folder.  The Veteran should also be advised to submit any additional pertinent medical records in his own possession in support of his claims.

2.  Obtain and associate with the claims folder all records from the VA Medical Center in New Orleans, Louisiana, dated since August 2011.

3.  Obtain and associate with the claims folder the Veteran's Social Security Administration records.

4.  After the above development has been completed, schedule the Veteran for a VA examination with an appropriate specialist to determine the etiology of any currently diagnosed fibromyalgia.  The claims folder must be reviewed by the examiner and the examination report must show that the claims folder was reviewed.  The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including the Veteran's in-service medical records showing complaints of muscle and joint pain; his post-service medical records showing further treatment for those symptoms, in addition to numbness in the peripheral extremities; the reports of the December 1997 and September 2006 VA examinations; and the prior Board decisions and Internet-based medical literature that the Veteran has submitted in support of his claim.  The examiner must also acknowledge and discuss the Veteran's assertions of in-service exposure to microwave radiation and herbicides, and his statements regarding the initial onset of his fibromyalgia symptoms in Vietnam, when he was allegedly deterred from seeking treatment, and the continuity of those symptoms following his Army discharge.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Additionally, the examiner should consider the Veteran's reports of fibromyalgia flare-ups caused or aggravated by his service-connected acquired psychiatric disorder and tinea versicolor, and his account of common onset and manifestation of the symptoms underlying his fibromyalgia and his service-connected peripheral neuropathy.  Finally, the examiner should consider all other pertinent evidence obtained in accordance with this remand.  The VA examiner's opinion should specifically address the following:

a)  State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's joint and muscle pain, numbness and related symptoms meet the diagnostic criteria for fibromyalgia.  Explain why that diagnosis is or is not warranted, considering all pertinent lay and clinical evidence of record.

b)  If a diagnosis of fibromyalgia is not warranted, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's joint and muscle pain, numbness and related symptoms are contemplated in the diagnosis of peripheral neuropathy, for which service connection has been granted.

c)  If a diagnosis of fibromyalgia is warranted, state whether it is at least as likely as not (50 percent probability or greater) that any current fibromyalgia is etiologically related to the Veteran's reported in-service exposure to microwave radiation.

c)  If a diagnosis of fibromyalgia is warranted, state whether it is at least as likely as not (50 percent probability or greater) that any current fibromyalgia is etiologically related to the Veteran's presumed in-service exposure to herbicides.

d)  If a diagnosis of fibromyalgia is warranted, state whether it is at least as likely as not (50 percent probability or greater) that any current fibromyalgia was caused or aggravated by the Veteran's service-connected tinea versicolor, acquired psychiatric disorder, or peripheral neuropathy.

e)  If a diagnosis of fibromyalgia is warranted, state whether it is at least as likely as not (50 percent probability or greater) that any current fibromyalgia is otherwise related to the Veteran's active service. 

5.  Next, schedule the Veteran for a VA examination with an appropriate specialist to determine the etiology of any currently diagnosed respiratory disorder.  The claims folder must be reviewed by the examiner and the examination report must state that the claims folder was reviewed.  The VA examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence, including the Veteran's post-service medical records, showing diagnoses and ongoing treatment for bronchitis, asthma, COPD, and sleep apnea, and the prior VA examiner's October 2011 report.  Additionally, the examiner should consider the Veteran's assertions of in-service exposure to microwave radiation and herbicides, and his statements regarding a continuity of respiratory symptomatology since service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The examiner should also take into account the Veteran's complaints of respiratory problems exacerbated by his service-connected gastritis.  Finally, the examiner should consider all other pertinent evidence obtained in accordance with this remand.  The VA examiner's opinion should specifically address the following:

a)  Diagnose all current respiratory disorders, to specifically include bronchitis, asthma, COPD, and sleep apnea.

b)  State whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed respiratory disorder is etiologically related to the Veteran's reported in-service exposure to microwave radiation.

c)  State whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed respiratory disorder is etiologically related to the Veteran's presumed in-service exposure to herbicides.

d)  State whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed respiratory disorder was caused or aggravated by the Veteran's service-connected gastritis, or any other service-connected disability.

e)  State whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed respiratory disorder is otherwise related to the Veteran's active service.

6.  Next, schedule the Veteran for a VA examination with an appropriate specialist to determine the etiology of his currently diagnosed vertigo.  The claims folder must be reviewed by the examiner and the examination report must state that the claims folder was reviewed.  It is essential that the clinician who performs the examination conduct all tests recommended by the previous VA examiner, to specifically include an MRI scan of the head, a CT temporal bone study, updated ENG and audiological testing, and a detailed neurological workup.  Additionally, the new VA examiner should support any opinion expressed with a thorough rationale and reconcile that opinion with all pertinent evidence, including the post-service medical records documenting the Veteran's long history of treatment for peripheral vestibular problems, consistent with a diagnosis of vertigo, and the findings of the October 2011 VA examiner, who confirmed the prior diagnosis but determined that additional ENT and neurological testing was necessary to obtain a complete picture as to etiology.  Additionally, the new VA examiner should expressly consider the Veteran's reports of in-service microwave radiation and herbicide exposure, and his account of ongoing dizziness and related symptoms since service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  That examiner should also take into account the Veteran's complaints of vertigo symptoms in connection with his service-connected tinnitus and peripheral neuropathy.  Finally, that examiner should consider all other pertinent evidence obtained in accordance with this remand.  That examiner's opinion should specifically address the following:

a)  State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo is etiologically related to his reported in-service exposure to microwave radiation.

b)  State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo is etiologically related to his presumed in-service exposure to herbicides.

c)  State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo was caused or aggravated by his service-connected tinnitus or peripheral neuropathy, or by any other service-connected disability.

d)  State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo is otherwise related to his active service. 

7.  Then, readjudicate the issues remaining on appeal.  If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Afterwards, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs