Citation Nr: 1301482 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-30 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for headaches, to include on the basis of undiagnosed illness. 2. Entitlement to service connection for a disability manifested by chest pain, to include on the basis of undiagnosed illness. 3. Entitlement to service connection for a disability manifested by chills/fever, to include on the basis of undiagnosed illness. 4. Entitlement to service connection for tiredness, to include on the basis of undiagnosed illness. 5. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2005 to June 2006. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in San Juan, the Commonwealth of Puerto Rico, (hereinafter RO). In August 2011, the Board remanded these claims for additional development and consideration. In regards to the claim of entitlement to a TDIU, the Board must again remand the claim since there has not been substantial compliance a prior remand directive. Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. There is competent lay or medical evidence of record showing that the Veteran has signs or symptoms of chest pain that cannot be attributed to a known clinical diagnosis, and that this atypical chest pain has existed for six months or more. 2. There is no competent lay or medical evidence of record showing that the Veteran currently suffers from a headache disorder or has signs or symptoms of a headache disorder that cannot be attributed to a known clinical diagnosis. 3. There is no competent lay or medical evidence of record showing that the Veteran currently suffers from chills/fever or has signs or symptoms of chills/ fever that cannot be attributed to a known clinical diagnosis. 4. There also is no competent lay or medical evidence of record showing that the Veteran currently suffers from tiredness or has signs or symptoms of tiredness that cannot be attributed to a known clinical diagnosis. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for atypical chest pain have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012). 2. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012). 3. The criteria for entitlement to service connection for chills/fever have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012). 4. The criteria for entitlement to service connection for tiredness have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The RO notified the Veteran in July 2008, prior to the initial adjudication of the claims in August 2008, of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. This notice also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra, the preferred sequence. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to these claims. The Veteran was also afforded a VA examination in October 2011 with respect to the issues decided herein. The Board finds that such VA examination and opinion is adequate to decide the issues as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Additionally, in obtaining this October 2011 VA examination, the Board finds that there has been substantial compliance with the prior August 2011 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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 Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 December 31, 2016. 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.A 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. § 3.317, 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. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), 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 multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317(c)(1-2). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. "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 multisymptom 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Chest Pain The Veteran contends that he suffers from chest pain as a result of his service in the Southwest Asia Theater of Operations. The Veteran provides a competent and credible account of chronic chest pain, with a duration of greater than six months. Additionally, VA examinations dated in November 2009 and October 2011 diagnosed the Veteran with atypical chest pain. It was specifically noted this was not of cardiac origin, and no source of the pain was otherwise identified. Based on the Veteran's confirmed service in the Southwest Asia Theater of Operations, the provision of 38 C.F.R. § 3.317 are for application. Service connection under this provision may be granted if there is an undiagnosed illness that has existed for six months or more. This being the case, the Veteran's chronic atypical chest pain with no underlying diagnosis to account for it, qualifies as an undiagnosed illness. Accordingly, service connection for it under this regulation is warranted. Gutierrez v. Principi, 19 Vet. App. at 8-9. Headaches, Chills/Fever, and Tiredness The Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses concerning the remaining claimed symptoms. Post-service VA treatment records also do not show complaints, much less diagnoses, of headaches, chills/fever, and tiredness. In fact, an August 2007 VA treatment record specifically notes the Veteran does not have even subjective complaints of fever/chills. In January 2007, prior to the Veteran's June 2008 claims, he was provided a General VA Medical Examination. At that time, there are no indications the Veteran was suffering from any neurological symptoms, fever/ chills, or fatigue. In August 2011, in order to determine whether the Veteran has chronic disabilities manifested by headaches, fever/ chills, and fatigue, as the Veteran argues, he was scheduled for a VA compensation examination in October 2011. During this October 2011 VA examination, the Veteran specifically denied suffering from headaches. The examiner noted that the Veteran instead stated he has hearing problems and tinnitus in his right side. As for the claim concerning fever/ chills, the Veteran claimed having these episodes "occasionally," and not associated with any other symptoms, or at any specific time of the day. However, the examiner stated there is no evidence of this complaint in the Veteran's claims file. Concerning the Veteran's complaints of tiredness/fatigue, he reported that this occurs upon moderate exercise or efforts, and is associated with palpations. The examiner noted that after a cardiovascular evaluation and repeated tests, there is no objective evidence to sustain the Veteran's alleged symptoms. As was stated earlier, evidence of a current disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225. Here, there is no evidence that the Veteran has suffered from headaches, chills/fever, and fatigue/tiredness at any time from when he first filed his claims for service connection in June 2008. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, in the absence of evidence of these current disabilities, the preponderance of evidence is against service connection for headaches, chills/fever, and fatigue/tiredness, and the claims are denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a disability manifested by chest pain is granted. Entitlement to service connection for headaches is denied. Entitlement to service connection for a disability manifested by chills/fever is denied. Entitlement to service connection for a disability manifested by tiredness is denied. REMAND Since this decision grants service connection for an additional disability, it has not been considered in the context of determining whether TDIU benefits are warranted. This should be accomplished on remand. Likewise, medical opinion regarding the Veteran's employability has not been recently obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine whether the Veteran is entitled to a TDIU for his service-connected disabilities, which are: Depressive disorder Lumbar spine disability Left knee disability Right fifth metacarpal bone fracture Hypertension Hypertensive retinopathy Gastritis, Atypical chest pain The claims file should be made available for review of the Veteran's pertinent medical and other history. The examiner should address whether the Veteran's service-connected disabilities preclude the Veteran from obtaining and maintaining substantially gainful employment when considering his level of education, prior work experience and training, etc. 2. Then, readjudicate the claim for a TDIU. If this readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with the claim of entitlement to a TDIU, the Veteran should be provided a supplemental statement of the case and an appropriate period of time allowed for response. Thereafter, the case should be returned to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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. 2011). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs