Citation Nr: 1305290 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 06-17 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for an upper respiratory illness. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for chronic fatigue, to include as secondary to an undiagnosed illness or chronic qualifying disability. 6. Entitlement to service connection for a sleep disturbance disorder, to include as secondary to an undiagnosed illness or chronic qualifying disability. 7. Entitlement to service connection for an abnormal weight disorder, to include as secondary to an undiagnosed illness or chronic qualifying disability. 8. Entitlement to an effective date prior to March 23, 2004, for the grant of service connection for lumbar spine degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1976 to June 1989. She had additional reserve service in the Army National Guard, with active duty from January 3, 1991 to June 8, 1991, and from October 12, 2001 to August 6, 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2003 and April 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction of the case belongs to the RO in Baltimore, Maryland. This case was previously before the Board in March 2010 and was remanded for additional development. Of the 11 issues remaining on appeal at the time of the Board's 2010 Remand, three claims were granted by the RO following that Remand. The eight claims remaining on appeal are addressed in this decision or in the remand appended to the decision. The Veteran testified before the undersigned at a hearing conducted in March 2008. A transcript of the hearing is of record. As noted in the Veteran's representative's June 2012 Informal Hearing Presentation, in March 2010 the Board determined that the issues of entitlement to service connection for right ankle pain, wrist pain, right shoulder pain, rhinitis, and residuals of a small left toe fracture had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As it appears the AOJ has not yet adjudicated those issues, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate action. The issues of entitlement to service connection for an upper respiratory illness, entitlement to service connection for sinusitis, and entitlement to an effective date prior to March 23, 2004, for the grant of service connection for lumbar spine degenerative joint disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A VA examiner has linked the Veteran's cervical spine degenerative joint disease to the Veteran's active service. 2. The competent clinical evidence and credible lay evidence of record establishes that diabetes mellitus was not diagnosed during or within one year following the Veteran's period of service in 1991 and establishes that diabetes was treated prior to the Veteran's next service induction in 2001 and was not aggravated during or as a result of that period of the Veteran's active service. 3. The most probative evidence of record reveals that the Veteran's fatigue and sleep disturbance are not separate disease entities but are symptoms of the Veteran's service-connected psychiatric disability. 4. There has been no demonstration by competent clinical, or credible lay, evidence of record that the Veteran has an abnormal weight disability related to service. CONCLUSIONS OF LAW 1. Service connection for cervical spine degenerative joint disease is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Service connection for chronic fatigue, to include as secondary to an undiagnosed illness or chronic qualifying disability, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 4. Service connection for a sleep disturbance, to include as secondary to an undiagnosed illness or chronic qualifying disability, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). 5. Service connection for an abnormal weight disorder, to include as secondary to an undiagnosed illness or chronic qualifying disability, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in July 2001, November 2002, March 2006, April 2010, and September 2011 the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the appellant to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). During the March 2008 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony, and specifically inquired into the dates of treatment for the disabilities on appeal and also attempted to clarify the nature of the Veteran's claims. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Duty to Assist The Veteran's service treatment records for her service in 1991 and from 2001 to 2002 are associated with the claims file, as are voluminous VA records. The Board acknowledges that the Veteran's service treatment records from her first period of service are incomplete, as those records do not include induction and discharge examinations. However, the Veteran does not contend that any of the disorders addressed in this decision were incurred during that period of service, other than the claim for service connection for a cervical spine disorder. As that claim has been granted, the fact that complete official records from that period of service cannot be obtained is not prejudicial to the Veteran. A virtual (electronic) file is also before the Board as part of the record for appellate review. In September 2011 the RO informed the Veteran that certain VA treatment records from the Richmond VAMC were unavailable and could not be obtained. The Veteran has undergone adequate VA examinations that addressed the medical matters presented by the issues on appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are adequate. The VA examiners elicited information concerning the Veteran's military service, considered the pertinent evidence of record, and provided supporting rationale for the opinions rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met because there is sufficient competent medical evidence of record to decide the claims. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its March 2010 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Applicable Laws-Service connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006. The current 38 C.F.R. § 3.310(b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. Service connection for arthritis may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. Compensation may be paid to a Persian Gulf Veteran when the evidence establishes: (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness such as, but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). The term 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(i)(B)(ii). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). I. Cervical Spine Disorder An August 1980 service treatment record indicates that the Veteran sought treatment after falling in a bathtub and hurting her neck. The record noted that the Veteran had complained of upper back pain that had been present four days prior. Cervical spine pain and spasm were noted. A June 1987 service treatment record indicates that the Veteran complained of neck pain beginning in June 1987 after lifting heavy boxes. At her March 2008 Board hearing the Veteran essentially indicated that she had had cervical spine pain ever since she had fallen off a ladder during her first period of service. At an October 2010 VA examination the examiner indicated that the Veteran's diagnoses included cervical spine degenerative joint disease. The examiner essentially indicated that the Veteran's current cervical spine disability was related to and a continuation of complaints she had made in service. While in December 2011 a VA examiner indicated that the Veteran's cervical spine disability was not related to her military service, that opinion made no reference to the Veteran's inservice neck and cervical spine complaints, and even indicated that the Veteran's service records were absent for such complaints. The Board finds it significant that in October 2011 the RO granted the Veteran service connection for a lumbar spine disability essentially on the basis of the October 2010 VA examiner's opinion and the Veteran's testimony that is not unlike that concerning her cervical spine disability. In sum, the Board finds that the evidence of record as a whole is in equipoise as to whether the Veteran's current cervical spine disability is related to her military service. Resolving doubt in the Veteran's favor, the Board finds that service connection for cervical spine degenerative joint disease is warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Diabetes Mellitus At her March 2008 Board hearing the Veteran indicated (page 31) that she recalled that she had been diagnosed with diabetes mellitus shortly upon returning from the Persian Gulf in 1991. Other than indicating that she was currently taking insulin, the Veteran offered little additional information concerning her diabetes. As noted on the October 2010 VA examination, the Veteran's earliest record of elevated blood sugars was in 1997. The examiner's summary of the records is consistent with post-service private and VA clinical records dated fro, 1992 to 1997. These clinical records reflect that the Veteran was treated for various disorders on numerous occasions following her 1991 service discharge, and no provider found any abnormality of the blood sugar through physical examination or laboratory testing prior to 1997. Based on such findings, the October 2010 VA examiner indicated that diabetes mellitus was not related to the Veteran's service. As for the Veteran's assertion that her diabetes mellitus was aggravated by her third period of service, the Board notes that a December 2011 VA examiner indicated that there had been no evidence that the Veteran's diabetes mellitus had progressed beyond the natural progression of the disease during that time. The Board notes that under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran is competent to state that she takes insulin for her diabetes, a lay person, such as the Veteran, is not medically qualified to establish a matter that requires medical knowledge and cannot be ascertained from lay observation. The Veteran is not competent to determine whether her diabetes was present during her period of service in 1991, or within one year thereafter. The medical evidence establishes that no provider assigned a diagnosis of diabetes or found any laboratory abnormality consistent with diabetes mellitus during that period. Similarly, the Veteran is not competent to determine that diabetes mellitus present at the time of 2001 service induction was chronically worsened during service following that induction. Jandreau, 492 F. 3d at 1372; Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Based on the Veteran's lay observations regarding the severity of diabetes mellitus, medical opinion was obtained, but, as noted above, the clinician determined that diabetes mellitus did not increase in severity beyond the expected natural progression during that period of service. The Board finds that the criteria for service connection for diabetes have not been met, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Chronic Fatigue and Sleep Disturbance Disorder At her March 2008 Board hearing, the Veteran indicated that she was constantly tired and had sleep problems, especially after returning from the Persian Gulf in 1991. The Board can find no evidence that the Veteran's fatigue or sleep disturbance have been designated as a separate physical or psychiatric disability. In fact, the Veteran herself at her March 2008 Board hearing (pages 36) linked her fatigue and sleep problems to her headaches and flashbacks, and the October 2010 VA examiner essentially linked the sleep problems and fatigue to her PTSD. The Board here observes that the Veteran is currently service-connected for headaches and PTSD, and disturbance of sleep is among the symptoms considered in assigning the Veteran's current 50 percent PTSD disability rating. In sum, the Board finds that the competent medical evidence fails to demonstrate that the Veteran has a fatigue disorder or sleep disturbance that is separate from her service-connected psychiatric disability. While the Veteran is competent to state that she has fatigue and sleep problems, the Veteran herself has linked such problems to service-connected disability. The medical evidence is against a finding that the Veteran has a current fatigue disorder or a sleep disorder that is separate from and not encompassed within a disorder for which service connection has already been granted. As a factual matter, symptoms which have been considered in assigning an evaluation for a service-connected disability may not serve as a factual basis for a separate evaluation or evaluation of another disability. 38 C.F.R. § 4.14; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The criteria for service connection for a disability manifested by fatigue or a disability manifested by sleep problems have not been met, and those claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. Abnormal Weight Disorder At her March 2008 Board hearing, the Veteran stated that she began to note an abnormal weight loss upon return home from the Persian Gulf in 1991. When asked to further explain, the Veteran testified (page 35) as follows: Well it would be up and it would be down. And one time I came down all the way to I would say 135 pounds, and then I picked back up and I went all the way up to 190 something, and then it's like, I don't know. It's just that I was going through right much. The Veteran further indicated that her weight was continuing to fluctuate. At the October 2010 VA examination, the Veteran indicated that her weight problem had begun in 1990, and that in the last 10 years her weight had increased by 10-15 pounds. Her weight at the time of the examination was 160 pounds, and the diagnosis was gradual weight gain due to Depo-Provera. The Board can find no evidence that the Veteran has a current chronic disability characterized or related to having abnormal weight. Further, to the extent that such a disability could be argued to exist, records such as a July 1996 Army National Guard Report of Medical History indicates that the Veteran weighed 168 pounds and had attributed her weight gain to taking Depo-Provera, an assessment also rendered by the October 2010 VA examiner. The medical opinions that the Veteran's weight gain represented a side effect of medication rather than a disorder which was incurred or aggravated in service are more probative than the Veteran's lay belief that her weight fluctuations are a manifestation of a disorder for which service connection may be granted. The Board also notes that the medication which caused the weight gain, Depo-Provera, was not used to treat a service-connected disability. See 38 C.F.R. § 3.310(a). In sum, the Board finds that the competent medical evidence fails to demonstrate that the Veteran has a disability characterized or related to having abnormal weight, and no examiner has linked such a problem to the Veteran's service, including her service in the Persian Gulf. While the Veteran is competent to state that she has fluctuations in her weight, the Veteran is not competent to state that it is a disease entity or is otherwise related to service. The criteria for service connection for an abnormal weight disability have not been met, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for cervical spine degenerative joint disease is granted. Service connection for diabetes mellitus is denied. Service connection for chronic fatigue, to include as secondary to an undiagnosed illness or chronic qualifying disability, is denied. Service connection for a sleep disturbance disorder, to include as secondary to an undiagnosed illness or chronic qualifying disability, is denied. Service connection for an abnormal weight disorder, to include as secondary to an undiagnosed illness or chronic qualifying disability, is denied. REMAND As for the issues of entitlement to service connection for an upper respiratory illness and entitlement to service connection for sinusitis, as noted in the Board's March 2010 Board remand, service treatment records show the Veteran was diagnosed and treated for several respiratory disorders, including sinusitis, allergic rhinitis, upper respiratory infections, pharyngitis, and bronchitis during active service. While the October 2010 VA examiner noted a diagnosis of sinusitis, the examiner stated that sinusitis was not likely related to service as the service medical records had no such diagnosis. However, the Board notes that an August 1980 service treatment record noted an assessment of sinusitis. Further, it also appears that the October 2010 VA examiner did not indicate whether the Veteran has a current upper respiratory disability that is related to service. As such, the Board finds that a VA examination that addressed these matters is required. By rating decision in October 2011 the RO granted the Veteran service connection for lumbar spine degenerative joint disease, effective March 23, 2004. In the June 2012 Informal Hearing Presentation the Veteran's representative expressed disagreement with the service connection date of March 23, 2004 assigned for the lumbar spine disability in the October 2011 RO decision. As such, issuance of a statement of the case on the issue of entitlement to an effective date prior to March 23, 2004, for the grant of service connection for lumbar spine degenerative joint disease, is necessary. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Make another request for the Veteran's official service treatment records, especially her service from 1976 to 1989. 2. The AOJ should request all VA medical records pertaining to treatment of the Veteran since January 31, 2012 and associate them with the claims file (or Virtual VA file). 3. After records have been obtained, to the extent possible, the Veteran should be scheduled for the appropriate VA examination regarding her upper respiratory and sinusitis disability. The examiner must be provided the Veteran's claims file for review, and any indicated studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has any current sinusitis or upper respiratory disability that had its onset in service or is otherwise related to her military service. The examiner must give a full explanation for all opinions given. 4. The AOJ should then, based on all the evidence of record, readjudicate the issues of entitlement to service connection for an upper respiratory illness and entitlement to service connection for sinusitis. If either benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and her representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 5. The AOJ should provide the Veteran with a statement of the case on the issue of entitlement to an effective date prior to March 23, 2004, for the grant of service connection for lumbar spine degenerative joint disease. The Veteran and her representative should be clearly advised of the need to file a timely substantive appeal if she wishes to complete an appeal as to this issue. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs