Citation Nr: 1310759 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-09 194 ) 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 tinnitus. 2. Entitlement to service connection for polyarthralgia and palindromic rheumatism (claimed as generalized skeletal joint pain). 3. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, insomnia, and alcohol abuse, as secondary to service-connected myositis of the lumbar spine and service-connected Raynaud's Syndrome of the hands. 4. Entitlement to service connection for numbness and tingling in the bilateral lower extremities, to include as secondary to service-connected myositis S-L chronic, paravertebral mild osteroarthritis. 5. Entitlement to service connection for cervical spine intervertebral disc syndrome and degenerative joint disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for clinical gastroesophageal reflux disease (GERD), to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and to include as secondary to pain medication taken for service-connected myositis of the lumbar spine and service-connected Raynaud's Syndrome of the hands. 7. Entitlement to service connection for vision problems, blurry vision, refractive error, and blepharitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 8. Entitlement to service connection for chest pain (claimed as a heart condition), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 9. Entitlement to service connection for clinical migraine headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 10. Entitlement to service connection for facial pain and temporomandibular joint syndrome (TMJ), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 11. Entitlement to service connection for degenerative joint disease of the hips, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from August 1980 to September 1992 and from October 2003 to June 2004. He also served in the Puerto Rico Army National Guard from 1993 to 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In an earlier February 1993 rating decision, the RO denied service connection for several of the issues that are now on appeal. The Veteran did not appeal the February 1993 rating decision, such that it became final. The RO thus characterized several of the issues that are now on appeal as new and material evidence issues. However, on December 27, 2001, the President signed HR 1291, the "Veterans Education and Benefits Expansion Act of 2001" (VEBEA), Pub. Law 107-103, 115 Stat. 976 (December 27, 2001). Section 202(a) of the Act amended 38 U.S.C.A. § 1117 to expand the definition of "qualifying chronic disability" (for service connection ) to include not only a disability resulting from an undiagnosed illness as stated in prior law, but also any diagnosed illness that the Secretary determines in regulations warrants a presumption of service connection under 38 U.S.C.A. § 1117(d). Section 202(a) also expanded compensation availability for Persian Gulf Veterans to include "medically unexplained chronic multi-symptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome that is defined by a cluster of signs or symptoms. This list is not exclusive. Where there is an intervening liberalizing law or VA issue that may affect the disposition of a claim, VA is required to conduct a de novo review of the previously denied claim. See Pelegrini v. Principi, 18 Vet. App. 112, 125-26 (2004); Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Since several of the Veteran's claims are based on a substantive right created by a statutory or regulatory provision that was not applied and did not exist in its current form at the time of the prior final denial, the Board finds these claims represent new claims for jurisdictional purposes for which VA is required to conduct a de novo review. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Therefore, the Board will not address these particular claims as new and material evidence issues. In his March 2009 Substantive Appeal (VA Form 9), the Veteran requested a Central Office hearing at the Board's offices in Washington DC. Regardless, he cancelled that request in a September 2012 statement. Therefore, the Central Office hearing request is considered withdrawn. See 38 C.F.R. § 20.702(e) (2012). A review of the Virtual VA paperless claims processing system reveals an additional May 2012 rating decision that lists additional medical records that may be pertinent to the present appeal. These records themselves are not present in the claims folder or on Virtual VA. In any event, upon remand, the RO will have the opportunity to review these records prior to readjudicating the appeal. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been raised by the record. See e.g., May 2008 Veteran's statement. It appears on Virtual VA that the RO has already developed and adjudicated the TDIU issue. However, the RO should once again readjudicate the TDIU issue, as the Board's present decision is granting service connection for three additional disabilities for the RO to consider. The Board does not have jurisdiction over the TDIU issue at this time for these additional disabilities, such that the TDIU issue is REFERRED to the RO for the appropriate action. The Board is adjudicating the issues of service connection for tinnitus, palindromic rheumatism, and major depression. However, the remaining service connection issues 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. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran has tinnitus that began during his service as the result of hazardous noise exposure. 3. The Veteran's palindromic rheumatism of the joints demonstrates a qualifying chronic disability resulting from undiagnosed illness or from a medically unexplained multi-symptom illness due to his Persian Gulf service. This disability can at least be rated as compensable. 4. The Veteran's major depression with insomnia is proximately due to or the result of his service-connected myositis of the lumbar spine and service-connected Raynaud's Syndrome of the hands. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Palindromic rheumatism of the joints is presumed to have been incurred during the Veteran's Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). 3. Major depression with insomnia is secondary to service-connected disabilities. 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regardless, with regard to the tinnitus, palindromic rheumatism, and major depression issues being granted, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of these claims, any error is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. The term service connection applies to entitlement to disability compensation, after a Veteran has satisfied either the three-element test under 38 C.F.R. § 3.303(a), or the test for chronic diseases under 38 C.F.R. § 3.303(b). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). For the three-element test under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the test for chronic disease as set forth in 38 C.F.R. § 3.303(b), with chronic disease shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. 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). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, 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 on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Governing Laws and Regulations for Secondary Service Connection In addition, a disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Governing Laws and Regulations for Persian Gulf Claims The law provides for compensation for Persian Gulf Veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. That is, if not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). See also 77 Fed. Reg. 63,225 - 63,227 (October 16, 2012) (final rule). 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(e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). In this case, the Veteran's service personnel records (SPRs) and DD Form 214s confirm that he served in the Southwest Asia Theater of operations from November 1990 to March 1991 and also briefly in March 2004, for purposes of establishing the Veteran's status as a "Persian Gulf Veteran." 38 C.F.R. § 3.317(e). Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Per these changes, the term 'qualifying chronic disability' was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). If probative evidence exists that the Veteran's disability pattern is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders, then service connection must be granted for a Gulf War illness. See 38 C.F.R. § 3.317(a)(2)(i) and (ii). For purposes of this presumption, 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)(ii). Regulations clarify that there must be "objective indications of a qualifying chronic disability," which 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)(1) and (3). A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. The sixth 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). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological 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). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). That is, under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, the symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of "direct service connection," VA cannot impose a medical nexus requirement. Further, lay persons such as the Veteran or his spouse are competent to report objective signs of illness such as joint pain or fatigue. Id. at 9-10. 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, 472 (2006). The Board must explain its selection of analogous Diagnostic Code. Id. at 472. Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Analysis - Service Connection for Tinnitus Initially, the Board acknowledges that the incurrence of an injury alleged to have happened in combat may be shown by lay evidence, if consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the Board finds no probative evidence that the Veteran engaged in actual combat with the enemy; thus, the combat presumption does not apply here. The Veteran has contended that he developed tinnitus as the result of noise exposure during service. Specifically, he asserts that he was exposed to noise as the result of his military occupational specialty (MOS) as a signal support systems specialist in the United States Army from 1980 to 1992 and from 2003 to 2004. His DD Form 214s confirm that he did active duty in this capacity. He asserts that he suffered acoustic trauma from nearby artillery and aircraft while working in this capacity. The Veteran indicates that he first noticed tinnitus during his first period of service, and reported it upon separation in August 1992. Upon review of the evidence of record, the Board concludes that the Veteran is entitled to service connection for tinnitus. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of current tinnitus. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Specifically, a May 2004 post-deployment examination documents tinnitus. The remaining question is whether tinnitus developed during his military service. The Veteran's service treatment records (STRs) reveal that he reported tinnitus upon separation in his August 1992 Report of Medical History. An earlier March 1989 STR audiogram documents that he was routinely exposed to hazardous noise as part of his duties. Earplugs were recommended. The Department of Defense's Duty MOS Noise Exposure Listing confirms that the Veteran's MOS as a signal support systems specialist involved a "moderate" probability of noise exposure. This fact is not in dispute. Post-service, the Veteran filed a claim for service connection for tinnitus immediately upon discharge from service in August 1992. A November 1992 VA examiner remarked that the Veteran has noticed tinnitus (a whistling sound in both ears) beginning in 1992 during service. A February 1993 National Guard Report of Medical History also noted the Veteran's tinnitus complaints. During his second period of service, the Veteran reported tinnitus at his May 2004 STR post-deployment examination. He indicated the tinnitus occurred during his service in the Persian Gulf in 2004 after exposure to constant loud noise. Post-service, a September 2005 lay statement from E.S.R. mentions that the Veteran complains of tinnitus several times a day. Both in-service and post-service, the Veteran is competent to report noise exposure and symptoms of tinnitus. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). In fact, the Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he was exposed to hazardous noise and developed tinnitus. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board emphasizes that the Veteran's various descriptions of noise exposure and tinnitus in his medical records and in all pertinent medical and lay evidence of record are consistent with the places, types, and circumstances of the Veteran's service in the Army. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The determination as to service connection here is based on review of the entire evidence of record, with due consideration to the policy of the VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). This case meets the three-element test as set forth in 38 C.F.R. § 3.303(a) - (1) the existence of a present disability (tinnitus); (2) in-service incurrence of a disease and injury (tinnitus and confirmed hazardous noise exposure); and (3) a causal relationship between the present disability and the disease or injury incurred during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus requirement here is established by way of credible lay evidence and competent, circumstantial medical evidence. Both the lay and medical evidence of record is probative in the instant case. That is, despite the lack of a definitive medical nexus opinion in this case, medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay persons are competent to provide opinions on some medical issues, such as tinnitus, that are within the realm of common knowledge of a lay person. See e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Given the current diagnosis of tinnitus, in addition to the history of confirmed in-service noise exposure with symptoms of tinnitus, without clear evidence of post-service intercurrent acoustic trauma, the evidence supports the grant of service connection for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis - Service Connection for Palindromic Rheumatism of the Joints The Veteran contends that he has experienced joint pain and "skeletal muscle pain" with swelling during and after his military service in the Persian Gulf in the early 1990s. He states that during his Persian Gulf service in the early 1990s, he was exposed to chemical and environmental hazards. He first reported painful joints upon separation from his first period of service in August 1992. He complains of current daily pain in all of his joints. See September 1992 and May 2005 claims; July 2006 Veteran's statement; August 2005 and September 2005 lay statements from friends, family, and co-workers. The Board grants the appeal and finds that service connection for palindromic rheumatism of the joints due to the Veteran's Persian Gulf service is warranted. STRs from the Veteran's first period of active service reveal that he reported painful joints and arthritis upon separation in his August 1992 Report of Medical History. Upon objective examination, no joint pathology was observed. Post-service, the Veteran filed a claim for service connection for painful joints immediately upon discharge from service in August 1992. A November 1992 VA examiner remarked that the Veteran has noticed painful joints since the 1980s, including the elbows, the knees, the ankles, and the shoulders. He was diagnosed with chronic generalized arthritis. Tylenol and Motrin do not help. VA treatment records dated in the 1990s and 2000s reflect continuing complaints of widespread generalized joint pain and swelling. A September 2002 VA treatment record stated that his symptoms are suggestive of palindromic rheumatism. An October 2002 National Guard Annual Medical Certification noted pain and swelling of all the joints. Once again, it was noted that the Veteran is on pain medication to treat his joint pain. A January 2003 National Guard Report of Medical History noted a history of swollen and painful joints, arthritis, and rheumatism. VA treatment records dated in August 2003 and February 2005 commented that the Veteran has been seen at a rheumatic clinic for unspecified polyarthralgias with elevated ANA titers. In view of his symptoms, VA medical personnel reflected that he could be presenting with Gulf War Sydrome. The Veteran had undergone physical therapy with some improvement in symptoms. During his second period of service, at his May 2004 STR post-deployment examination, the Veteran reported swollen, stiff, and painful joints during service and during the examination. He takes prescription medication to treat his pain. Post-service, a February 2006 National Guard report indicated that the Veteran received a medical discharge since he was no longer fit for service due to polyarthralgia. He was no longer able to comply with his MOS duties in the National Guard. An October 2006 private sleep study listed a diagnosis of rheumatoid arthritis. Finally, a December 2006 VA muscle examination described the Veteran's complaints of multiple body aches affecting him on a daily basis. The Veteran denied muscle injuries or traumas. The pain was widespread and affected every joint. Aside from lumbar spine and cervical spine degenerative joint disease, the VA examiner was not able to assess any objective pathology in the joints or muscles. With regard to the Persian Gulf presumption, joint pain is listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). Most importantly, there is probative medical evidence of record indicating that the Veteran's disability pattern for his widespread joint pain is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology. See 38 C.F.R. § 3.317(a)(2)(i) and (ii). Specifically, VA, National Guard, and private medical personnel have diagnosed his widespread joint pain as palindromic rheumatism, rheumatic arthritis, polyarthralgia, chronic generalized arthritis, and Persian Gulf Syndrome. The Board finds that palindromic rheumatism is the most probative diagnosis of record. Palindromic rheumatism is often a diagnosis of exclusion with no specific tests. The disorder seems to be poorly understood and comes under the penumbra of Gulf War Illness. These VA and private medical records, although not entirely clear in their choice of language, strongly suggest that the Veteran's widespread joint pain from palindromic rheumatism is due either to (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology. See again 38 C.F.R. § 3.317(a)(2)(i) and (ii). For VA purposes, 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. 38 C.F.R. § 3.317(a)(2)(ii). The Veteran's joint symptoms have not been attributed to any specific trauma or injury. In addition, given the Veteran's credible complaints regarding recurring widespread joint pain for many years, he clearly has exhibited intermittent periods of improvement and worsening for over six months. See 38 C.F.R. § 3.317(a)(4). Lay persons such as the Veteran's spouse and others he served and worked with are competent to report objective signs of illness such as widespread joint pain. 38 C.F.R. § 3.317(a)(3); Gutierrez, 19 Vet. At 9-10. Finally, in order to grant service connection on the basis of the Persian Gulf presumption, the Board must determine whether the Veteran's widespread joint pain from palindromic rheumatism is manifest to a degree of 10 percent. See 38 C.F.R. § 3.317(a)(1)(i). As noted above, 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, 19 Vet. App. at 472. The Board must explain its selection of an analogous Diagnostic Code. Id. In this regard, the Board finds that the Veteran's widespread joint pain from palindromic rheumatism can be rated as at least 10 percent disabling by analogy to Diagnostic Code 8850-5002 for rheumatoid arthritis. See 38 C.F.R. §§ 4.20, 4.71a. The functions affected, anatomical location, and symptomatology for this diagnostic code is similar to the Veteran's current palindromic rheumatism. See 38 C.F.R. § 3.317(a)(5); see also Stankevich, 19 Vet. App. at 472. In its selection of an appropriate analogous diagnostic code for the Persian Gulf disability at issue, the Board has considered the provisions of the VA Adjudication Procedure Manual. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section D, Topic 16, Blocks d through g. The Board emphasizes that the service grant for palindromic rheumatism of the joints excludes the symptomatology for the following joints which already have distinct diagnoses: the Veteran's lumbar spine, cervical spine, bilateral hand Raynaud's Syndrome, and bilateral hips (see October 2006 VA joint examination). Since the Veteran here exhibits objective indications of a qualifying chronic disability (palindromic rheumatism), manifest to a degree of 10 percent or more for prior to December 31, 2016, service-connected is warranted here under the Persian Gulf presumption. See 38 C.F.R. § 3.317(a). Resolving any doubt in the Veteran's favor, the claim for service connection for palindromic rheumatism of the joints is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Secondary Service Connection for Depression with Insomnia The Veteran contends that his current depressive disorder with insomnia is caused by pain from his service-connected lumbar spine and hand disabilities. In the alternative, he also states that his insomnia and depressive symptoms began during his initial Persian Gulf service in the early 1990s. See January 2013 Appellant's Brief; September 1992 and May 2005 claims; March 2009 VA Form 9. The Veteran has been service connected for a lumbar spine disability since 1992 and Raynaud's Syndrome for the hands since 2011. The Board presently grants the appeal and finds that secondary service connection for major depression with insomnia is warranted. The threshold criterion for service connection - on either a direct or secondary basis, is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. A December 2006 VA psychiatric examiner diagnosed depressive disorder, NOS, and noted insomnia as well. A May 2009 Social Security Administration (SSA) decision remarked that VA and private medical evidence reveals a diagnosis of recurrent major depression. The Veteran was considered disabled in part due to his major depression. Thus, there is probative evidence the Veteran has a current psychiatric disorder. With regard to secondary service connection, most importantly, there is probative medical evidence of record that demonstrates the Veteran's major depression with insomnia is proximately due to or the result of his service-connected lumbar spine and Raynaud's Syndrome. 38 C.F.R. § 3.310(a); Velez, 11 Vet. App. at 158. Specifically, the May 2009 SSA decision, after reflecting on various medical records, assessed that the Veteran has developed severe depressive symptoms secondary to physical impairments from his joint pain, to include his lumbar spine and hands. It was noted that his depression disorder is manifested by insomnia, decreased energy, reduced memory, diminished attention span, diminished intellectual functioning, and multiple somatic complaints. This SSA decision provides strong evidence in support of secondary service connection for major depression with insomnia. There is no contrary, negative opinion of record. On a side note, the December 2012 VA psychiatric examiner also diagnosed the Veteran with alcohol abuse in full remission. Regardless, as to this particular diagnosis, service-connected disability compensation is precluded for disability or death that is the result of the Veteran's willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131. See also 38 C.F.R. §§ 3.1(m), (n), 3.301; VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). Moreover, the December 2012 VA psychiatric examiner opined that the depressive disorder and alcohol abuse disorder are "two separate and distinct entities with no relation to one another." Accordingly, the evidence supports secondary service connection for major depression with insomnia. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appeal is granted as to that issue. The Board is granting secondary service connection for major depression with insomnia on the basis that is the direct result of the Veteran's service-connected lumbar spine and bilateral hand disabilities, as opposed to aggravation. ORDER Service connection for tinnitus is granted. Service connection for palindromic rheumatism of the joints is granted. Service connection for major depression with insomnia is granted. REMAND Before addressing the merits of the remaining service connection issues, the Board finds that additional development of the evidence is required. First, concerning Veterans Claims Assistance Act (VCAA) notice, the VCCA letters of record failed to discuss secondary service connection for both numbness and tingling in the bilateral lower extremities and clinical GERD on the premise that these disabilities are proximately due to or chronically aggravated by his lumbar spine disability. 38 C.F.R. § 3.310 (2012). These contentions were raised by the Veteran. As to the GERD, he contends that pain medication for his lumbar spine disability has upset his stomach, leading to GERD. Therefore, a remand is required for the RO/AMC to issue another VCAA letter that is compliant with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and with all legal precedent. Second, the Veteran's VA treatment records on file only date to January 2007, over five years ago. Since he has likely received additional relevant treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Third, a May 2012 rating decision, which is only present on the Virtual VA paperless claims processing system, refers to additional VA DBQ examinations dated in March 2012, as well as SSA disability records, a TDIU claim, and private medical evidence. However, none of these records is associated with the other evidence in his claims file. These records are also not present on the Virtual VA paperless claims processing system (otherwise known as the Virtual VA eFolder). Since these records may be relevant to the service connection issues on appeal, these records must be obtained. Fourth, after securing the above evidence, the Veteran must be scheduled for VA Persian Gulf examination(s) with opinions to determine the etiology of any current numbness and tingling in the bilateral lower extremities, cervical spine intervertebral disc syndrome and degenerative joint disease, clinical GERD, vision problems, chest pain (claimed as a heart condition), clinical migraine headaches, facial pain and TMJ, and degenerative joint disease of the hips to on the basis of in-service incurrence. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Since the Veteran served in the Persian Gulf, his representative in the January 2013 Appellant's Brief (at page 10) raised the issue whether any of these conditions are a chronic disability pattern resulting from an undiagnosed illness or from a diagnosable but medically unexplained multi-symptom illness of unknown etiology. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(2)(i), (ii). Furthermore, the theory of secondary service connection for numbness and tingling in the bilateral lower extremities and clinical GERD must also be addressed by the VA examiner. Accordingly, the remaining service connection issues are REMANDED for the following action: 1. The RO/AMC must send the Veteran a VCAA letter notifying him and his representative of the evidence necessary to substantiate the claim for SECONDARY SERVICE CONNECTION for both numbness and tingling in the bilateral lower extremities and clinical GERD, on the premise that these disabilities are proximately due to, or chronically aggravated, by his lumbar spine disability. See 38 C.F.R. § 3.310 (2012). This letter must (1) inform the Veteran of the information and evidence that is necessary to substantiate these claims ON A SECONDARY BASIS; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This letter must also comply with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), advising him of the elements of a disability rating and an effective date, which will be assigned if any of the Veteran's service connection claims are granted. 2. The RO/AMC must attempt to secure copies of complete records of all relevant VA medical treatment dated after January 2007, to include records from the VA Medical Center in San Juan, Puerto Rico. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. The RO/AMC must attempt to secure additional records and evidence listed in a May 2012 rating decision. These records include VA DBQ examinations dated in March 2012, SSA disability records, a TDIU claim, and private medical evidence. These records must be associated with the other evidence in his claims file or placed on the Virtual VA paperless claims processing system for review. For the SSA disability records, verify that the SSA records include a complete copy of the disability determination and all medical records considered. 4. After securing the above treatment records and any other additional evidence, the RO/AMC must schedule the Veteran for a VA Persian Gulf examination by an appropriate clinician to determine the etiology of numbness and tingling in the bilateral lower extremities, cervical spine intervertebral disc syndrome and degenerative joint disease, clinical GERD, vision problems, chest pain (claimed as a heart condition), clinical migraine headaches, facial pain and TMJ, and degenerative joint disease of the hips. The purpose of this examination is to determine whether any of these alleged disorders are related to service. The examination should include any diagnostic testing or evaluation deemed necessary, including laboratory tests. The Veteran must be interviewed. A clear rationale for all opinions is required. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES AND CONSIDERATIONS: (a) The RO/AMC must provide the VA examiner(s) with the pertinent FACT SHEET for Persian Gulf claims. (b) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. (c) The examiner(s) must answer whether Veteran's disability pattern from numbness and tingling in the bilateral lower extremities, cervical spine intervertebral disc syndrome and degenerative joint disease, clinical GERD, vision problems, chest pain (claimed as a heart condition), clinical migraine headaches, facial pain and TMJ, and degenerative joint disease of the hips is (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis? Please consider each disorder separately. (d) If the examiner determines that the Veteran's disability pattern from any of these disorders is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then an additional medical opinion must be provided. The examiner must opine whether it is "at least as likely as not" (meaning 50 percent or more probable) that numbness and tingling in the bilateral lower extremities, cervical spine intervertebral disc syndrome and degenerative joint disease, clinical GERD, vision problems, chest pain (claimed as a heart condition), clinical migraine headaches, facial pain and TMJ, and degenerative joint disease of the hips is related to service, including the assumed environmental Persian Gulf hazards. The examiner must also discuss the impact of the Veteran's participation in parachute-jump trainings on his cervical spine and hips and lower extremities. (e) Is it at least as likely as not (i.e., 50 percent or more probable) that numbness and tingling in the bilateral lower extremities or clinical GERD is proximately due to or the result of his service-connected lumbar spine disability? (As to the GERD diagnosis, the Veteran contends that pain medication for his lumbar spine disability has upset his stomach, leading to GERD). (f) Is it at least as likely as not (i.e., 50 percent or more probable) numbness and tingling in the bilateral lower extremities or clinical GERD is chronically aggravated or worsened by his service-connected lumbar spine disability, regardless of the date of onset of either disorder? If and only if the examiner believes that there is chronic aggravation or worsening of numbness and tingling in the bilateral lower extremities or clinical GERD, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate. 5. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. 6. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the issues of service connection for numbness and tingling in the bilateral lower extremities, cervical spine intervertebral disc syndrome and degenerative joint disease, clinical GERD, vision problems, chest pain (claimed as a heart condition), clinical migraine headaches, facial pain and TMJ, and degenerative joint disease of the hips. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs