Citation Nr: 1304986 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 05-26 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an undiagnosed illness manifested by neurologic impairment and joint pain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from December 1981 to September 1992; he served in the Southwest Asia Theater of Operations from October 1990 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In June 2006, the Veteran testified at a hearing at the RO before the undersigned Acting Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. The case was previously before the Board in December 2006, when it was remanded for examination and medical opinions. The requested development has since been completed. The issues of entitlement to: a total rating for compensation based on individual unemployability (TDIU); helpless child benefits; an increased rating for posttraumatic stress disorder (PTSD); service connection for irritable bowel syndrome under 38 C.F.R. § 3.317; and, service connection for tinea pedis and hypertension have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served on active duty in Southwest Asia during the Persian Gulf War era. 2. The Veteran has complaints of chronic pain involving the bilateral shoulders, bilateral elbows, and bilateral wrists; physical and x-ray examination of these joints reveals normal findings. 3. The medical opinion expressed in the 2007 VA examination report is that the Veterans complaints of joint pain are the result of an undiagnosed illness. 4. The medical opinion expressed in the 2012 VA examination report is that the Veteran does not have chronic joint disabilities, but has a neurologic disability, bilateral cubital tunnel syndrome which was incurred during service. CONCLUSION OF LAW The criteria for service connection for an undiagnosed illness manifested by neurologic impairment and joint pain have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim for the remaining issue on appeal has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent lay evidence is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In addition, service connection may be established for a veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or after service, to a degree of 10 percent or more, not later than December 31, 2016. 38 U.S.C.A. § 1117 ; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 (Dec. 29, 2011). The Persian Gulf War period runs from August 2, 1990, to a date not yet determined. 38 U.S.C.A. § 101(33). Objective indications of a 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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws of the United States. 38 C.F.R. § 3.317(a)(2-5) . Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b)(emphasis added) As to cases in which a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110, 1131 is warranted. See Combee, 34 F.3d at 1042. What is important is whether a symptom is a manifestation of a syndrome which (1) is a clinical diagnosis accepted by VA, and (2) is shown by the evidence to be the result of service. If so, service connection may be granted under 38 C.F.R. § 3.303(d). If not, service connection must be considered under 38 C.F.R. § 3.317. In the latter case, service connection may not be granted if the symptom is a manifestation of a disability attributable to a "known clinical diagnosis." In this case, the Veteran's discharge papers, DD 214, show that he served in the Southwest Asia Theater of Operations from October 1990 to April 1991. Therefore, he is a "Persian Gulf veteran" as defined by regulation. See 38 C.F.R. § 3.317 . The Veteran contends that he has a disability that is due to an undiagnosed illness related to his service in Southwest Asia. Specifically he claims that this disability is manifested by joint pain and neurologic symptoms of pain. The service treatment records reveal treatment for instances of complaints of knee, back, and shoulder pain, but these were prior to the Veteran's service in Southwest Asia. In September 1992, a separation examination of the Veteran was conducted and clinical evaluation did not reveal any neurologic or joint abnormalities. On the accompanying report of medical history, the Veteran reported his treatment for back pain. However, he did not report any history of pain in other joints. At the June 2006 hearing, the Veteran specified that he was having symptoms of joint pain in his neck, shoulders, elbows and knees. He testified that he took over-the-counter medication to treat his symptoms of pain. A December 2006 VA treatment record reveals that the Veteran had complaints of longstanding, non-migratory, polyarticular, symmetrical joint pain involving the shoulders, elbows, knees with no signs of active or chronic joint inflammation . . ." Despite the Veteran's complaints of pain, there was no evidence of residual joint abnormality or deformity, and no functional impairment. While a possible psychological cause of somatization related to the Veteran's psychiatric complaints was suspected, the treating physician still indicated that the etiology of the Veteran's joint complaints was undetermined. In January 2007, a VA Compensation and Pension examination of the Veteran was conducted. Again he reported complaints of joint pain in his shoulders, elbows, neck and knees. He reported no swelling of the joints and no medical treatment for these complaints. Physical examination revealed mild tenderness of the cervical spine with a normal range of motion. Physical examination of the other joints, including both shoulders, elbows, and knees revealed normal ranges of motion without evidence of tenderness, redness, or swelling. X-ray examination of the joints in question revealed normal findings. The diagnosis was pain in bilateral shoulders, bilateral knees, and bilateral elbows with normal range of motion and normal x-rays; neck pain with normal examination. The examining physician noted the complaints of joint pain and the absence of any abnormalities and stated that a "specific diagnosis for his joint symptoms cannot be made. In my opinion, his joint symptoms are due to undiagnosed disease." In July 2012 the most recent Compensation and Pension examination of the Veteran was conducted. The Veteran reported pain in the bilateral shoulders, knees, elbows, and wrists. Physical examination did not reveal any limitation or functional impairment. On narrative the examining physician indicated that a diagnosis of degenerative joint disease was not warranted for any joint as x-ray examination was normal. The examiner also indicated that the Veteran's shoulders, wrists, and elbows were normal on examination without evidence of limitation of motion or functional impairment. The examiner indicated that the Veteran did not have a chronic condition of any of these joints. The examiner did indicate that the Veteran had neurologic impairment, bilateral cubital tunnel syndrome which had peripheral ulnar nerve involvement bilaterally. The examiner stated that it was "as likely as not this was incurred in the military service. It is unrelated to the arthritic complaints and diagnosis." The examiner also specifically indicated that the Veteran did not warrant a diagnosis of fibromyalgia. To the extent that the Veteran indicated complaints of pain related to the knees, service connection has been established for a left knee disability as a result of the findings of the 2012 Compensation and Pension examination report. The Veteran reports complaints of chronic joint pain involving the shoulders, elbows, and wrists. The medical opinion in the 2012 examination report is that there is no current disability. The medical opinion expressed in the 2007 examination report was that a specific diagnosis for the joint symptoms could not be made, and that the joint symptoms are due to undiagnosed disease. While the diagnosis of cubital tunnel syndrome on the 2012 examination report may account for some of the Veteran's elbow and wrist pain symptoms, the examiner indicated this disability was incurred during service. The evidence establishes that the Veteran has complaints of chronic joint pain of the bilateral shoulders, elbows, and wrists. While physical and x-ray examination is normal, one VA physician indicates these complaints of chronic pain are the result of an undiagnosed illness. The criteria set forth at 38 C.F.R. § 3.317 have been met. Accordingly, service connection for an undiagnosed illness manifested by neurologic impairment and joint pain is warranted. ORDER Service connection for an undiagnosed illness manifested by neurologic impairment and joint pain is granted. ____________________________________________ William Yates Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs