Citation Nr: 1301466 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 06-26 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an undiagnosed illness manifested by diffuse joint pains of the bilateral ankles, shoulders and elbows. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from May 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In that decision, the RO denied service connection for joint pain. In January 2010, April 2011, and April 2012 the Board remanded the issue on appeal for additional development. The Board finds there has been substantial compliance with the remand. In April 2011, the Board denied several claims for service connection that also included a theory of the disabilities being due to an undiagnosed illness (a disability manifested by memory loss, bilateral knee disabilities, bilateral hip disabilities, and a spine disability). These claims are no longer on appeal and are not before the Board at this time and do not warrant further discussion. As has been previously noted, the Veteran requested a Board hearing. Such a hearing was scheduled for January 2010; however, he failed to appear on the scheduled date, and failed to provide an explanation regarding his absence. The hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). FINDING OF FACT The bilateral shoulder pain has been attributed to a nonservice-connected arthritis; and there is no competent evidence that other joint pains are part of an independent disorder or a disorder due to an undiagnosed illness. CONCLUSION OF LAW The criteria for entitlement to service connection for an undiagnosed illness manifested by diffuse joint pain have not been met. 38 U.S.C.A. §§ 1110, 1131, 1117 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in October 2003 and March 2004 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Complete notice, however, was not fully issued prior to the adverse determination on appeal (the January 2005 decision); the letters did not inform the Veteran regarding disability rating and effective dates. Nonetheless, fully compliant notice was later issued in a May 2010 communication, and the claim was thereafter readjudicated in February 2011, March 2012 and November 2012. The Board finds any timing deficiency has been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private records. His statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran has received several VA examinations in conjunction with the claim, including a July 2012 VA examination which the Board finds fully adequate and which shows compliance with the April 2012 Board remand. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran seeks service connection for an undiagnosed illness manifested by diffuse joint pains. This may be established on a direct or presumptive basis. Direct service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). In order to prevail in a claim for service connection there must be evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established, however, for a current disability on the basis of a presumption. See, e.g., 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Under this law and regulation, 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 December 31, 2016. 38 C.F.R. § 3.317(a)(1) (2012). A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness like chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness); and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). In addition, 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. See 38 C.F.R. § 3.317(d). As none of the enumerated diseases is at issue in this case, the Board has omitted listing the diseases or discussing them. 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 and 38 C.F.R. § 3.317, 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, laypersons are competent to report objective signs of illness. Id. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi-symptom illness. 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). "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 include "joint pain," which is exactly the Veteran's claim. 38 C.F.R. § 3.317(b). For purposes of § 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). Compensation shall not be paid under 38 C.F.R. § 3.317 if (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). Finally, another potentially applicable presumption here involves arthritis diagnoses. When a veteran served continuously for ninety (90) or more days during a period of service, and if arthritis became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board will first consider the claim for service connection for an undiagnosed illness manifested by diffuse joint pains on a presumptive basis under § 3.317, then on a presumptive basis under §§ 3.307 and 3.309, and finally on a direct basis. The Veteran's DD Form 214 shows he was awarded both the Southwest Asia service medal with three bronze stars and the Saudi Arabia Kuwait Liberation medal. The Board accepts that he is a qualifying Persian Gulf veteran under 38 C.F.R. § 3.317(e) (2012). Service treatment records note orthopedic complaints of the Veteran in service. The records show complaints of knee pain (see July 1988 and December 1990 records) and a pulled hamstring (see July, September, and December 1990 records as well as an October 1991 record). Also documented were assessments of a sprained ankle (see an October 1990 record), body aches associated with rhinitis and/or the flu (December 1991), trapezius muscle strain (January 1992) and probable patella tendonitis at the tibial tuberosity (March 1992). The Veteran listed joint pains generally on his October 2003 claim form as well as specific claims for orthopedic disabilities. He said he was exposed to oil field fires in the Gulf War; his disability was unknown. The Board finds evidence of record does show the Veteran has a current diagnosis of arthritis of the shoulders. A July 2004 X-ray of the shoulders (taken in conjunction with a VA examination) showed no gross abnormality, but X-rays from October 2008 showed mild osteoarthritis in both shoulder joints. A July 2012 VA examination report confirmed this diagnosis. By definition the shoulder arthritis does not qualify as an undiagnosed illness under 38 C.F.R. § 3.317. Regarding other joint pains of the elbows and ankles, in a July 2004 VA examination for the spine, diffuse polyarthralgias and osteoarthritis generally was noted. The Veteran received a VA examination in July 2012 to consider osteoarthritis and other joints that had not been addressed in the April 2011 Board decision. The July 2012 VA examination report noted that the Veteran was claiming an undiagnosed musculoskeletal disability as due to ankle, elbow, forearm and shoulder disabilities. The examiner stated there were no diagnosed illnesses for which there was no etiology. The examiner stated that the Veteran's shoulder, ankle and elbow conditions had specific etiologies and diagnoses. The examiner stated, They all result from a complex interplay of multiple factors, including joint integrity, genetic predisposition, local inflammation, mechanical forces, and cellular and biochemical processes. None are due to environmental hazards such as dust, oil well fires, pesticides, infectious diseases, inhalation of solvents, fuel fumes or ultra fine-grain sand, or administration of vaccines. The examiner stated that for these reasons, no conditions were related to exposure to environmental hazards experienced during the Persian Gulf War. In coming to this conclusion, the Veteran received a full physical examination of the ankles, shoulders and elbows. The examiner noted the Veteran had a left ankle sprain in service. It was treated with rest, ice, compression and elevation; the Veteran reported the left ankle currently hurt with increased activity. A review of the physical examination shows the Veteran's bilateral ankles were totally normal at this examination. Range of motion was normal; there was no objective evidence or pain on motion, repetitive use testing was normal; there was no pain on palpation; muscle strength and stability was normal and imaging studies were normal. Findings for an elbow or forearm disability were similar to that of the ankles. The Board finds no qualifying chronic disability to establish a grant of service connection under § 3.317(a). A qualifying chronic disability can only be an undiagnosed illness or a medically unexplained chronic multisymptom illness (chronic fatigue syndrome, fibromyalgia or functional gastrointestinal disorders). See § 3.317(a)(2)(i). The Veteran has not been diagnosed or shown to have one of these medically unexplained chronic multisymptom illnesses. In addition to not having an unexplained chronic multisymptom illness, the July 2012 VA examination report supports the Veteran does not have an undiagnosed illness. As a result, the Board finds that service connection for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted. In adjudicating the claims for direct service connection and under the arthritis presumption, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). (Chronicity is addressed differently above in consideration of 38 C.F.R. § 3.317(a)(4).) Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007). For example, in Barr, the United States Court of Appeals for Veterans Claims (Court) held that varicose veins were a disability that a lay person was capable of observing for the purpose of establishing service connection. 21 Vet. App. at 308-309. Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to report what he experiences regarding his own joints, to include pain. See Barr, 21 Vet. App. 303; 38 C.F.R. § 3.159(a)(2). The Board, however, finds the record supports that the Veteran has not been entirely consistent in his report of diffuse joint pain since service. The Board will highlight three main examples of inconsistencies. First, the Veteran stated at a November 1999 VA appointment that the onset of his joint pain was in August 1991 and involved several joints (to include the elbows, shoulders and ankles). Months earlier at a September 1999 VA primary care follow up appointment, (which was the Veteran's first clinic visit) the Veteran stated he was healthy to his knowledge and only wished to get into the Gulf War registry program; he did not report a history of joint pain. Also, the review of systems was negative at that time. Next, in February 2002, a patient history questionnaire for Dr. S. shows the Veteran said he had a problem with his neck and shoulders but denied other musculoskeletal complaints like leg pain, joint pain, stiffness, swelling and reduced muscle strength. Last, in August 2010, the Veteran received a VA orthopedic examination. The examiner stated the Veteran did not have any other significant joint pains except his hips, knees, and spine (which were detailed in that examination report). As a result, those areas were the focus of the examination. The examiner did note diagnostic findings of the ankles, shoulders and elbows. In an October 2011 VA addendum, the examiner emphasized that the Veteran did not complain of ankle, shoulder or elbow pain, so there was no need to comment on these areas. Here, the Board finds that the Veteran's statements of ongoing, chronic joint pain since service are lacking in credibility, as they are internally inconsistent with the evidence of record. If the Veteran had been suffering from persistent and severe joint pain since service in the Persian Gulf War, or for any extended period of time, the Board finds it implausible that he would deny normally having these types of symptoms, report being in generally good health and fail to voice complaints to the VA examiner. He did persist in reporting polyarthralgia symptoms in VA records after filing his claim. The Veteran's statements are assigned less weight. As the Veteran's shoulders do have a current diagnosis of arthritis, the Board will consider the arthritis presumption under §§ 3.307 and 3.309, even though the Veteran's original claim was only for "joint pain" generally. The Veteran does not contend, and the evidence of record does not otherwise show, that the Veteran had bilateral shoulder arthritis within one year of separation from service. The evidence shows that in 2004 an X-ray showed no abnormalities of the bilateral shoulders and it was not until 2008 that arthritis of the acromioclavicular joint was found. As a result, the Board finds that this presumption is not in operation to support a grant of service connection for bilateral arthritis of the shoulders. Regarding arthritis generally, several VA examination reports show the Veteran does not have a diagnosis of rheumatoid arthritis or injuries in service that resulted in arthritis. (See August 2010 VA examination report.) Finally, there is no competent evidence showing that a disability manifested by diffuse joint pains is directly related to service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board finds the Veteran has been inconsistent on the issue of chronicity and the evidence of record does not otherwise show that a disability manifested by diffuse joint pains had its onset in service. As explained, even though the Veteran now has a present diagnosis of arthritis of the shoulders, in 2004 an X-ray showed no bilateral shoulder arthritis; there is no nexus to service shown. The Veteran suffered a sprained ankle while in service in October 1990, but the July 2012 VA examination report showed currently findings were negative for an ankle disability. There has been no contention or showing of an elbow disability that began in service or of a present elbow disability. The Board does not find competent evidence of present elbow or ankle disabilities. No general joint disability, such as rheumatoid arthritis, has been shown. See Brammer, 3 Vet. App. at 225. As a result, the Board finds that service connection on a direct basis for an individual ankle or elbow joint disabilities or diffuse joint pains throughout the body due to an undiagnosed illness is not warranted. ORDER Service connection for an undiagnosed illness manifested by diffuse joint pains is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs