Citation Nr: 1311491	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  09-33 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a left foot disorder, claimed as left foot pain, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117.

2.  Entitlement to service connection for scars of the upper back.

3.  Entitlement to service connection for sleep apnea.

4.  Entitlement to service connection for right cubital tunnel syndrome.

5.  Entitlement to service connection for right hand ulnar neuropathy.

6.  Entitlement to a compensable rating for gastroesophageal reflux disease (GERD).  




REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1993 to January 2008.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

As to the Veteran's claim for service connection for left foot pain, the medical evidence currently of record suggests that that he may have left foot pain for which no etiology has thus far been established. See VA Gulf War Guidelines examination report dated January 2008. Accordingly, the Board has recharacterized the Veteran's claim as entitlement to service connection for left foot pain, to include as due to undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C.A. § 1117. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a claimant's claim for service connection for a specific disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
 
The issues of service connection for scars of the upper back, sleep apnea, right hand cubital tunnel syndrome, and right ulnar neuropathy, and entitlement to a compensable rating for GERD 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.


FINDING OF FACT

1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 

2.  Left foot pain became manifest during the Veteran's Persian Gulf War service and has not been attributed to any known clinical diagnosis.


CONCLUSION OF LAW

Left foot pain that is not attributable to any known clinical diagnosis was incurred during Gulf War service. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2012): 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in December 2007 that fully addressed all notice elements.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the service treatment records, VA outpatient treatment records and private medical records.  

Additionally, the Veteran was afforded VA examinations in January 2008 and August 2008.  

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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).

Service connection claim

Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The appellant in this case is a "Persian Gulf Veteran" since he served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. 
§ 3.317. Therefore, special presumptions apply which do not require that the disability be due to a known clinical diagnosis. Service connection may be established for a Persian Gulf War veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active 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); see also 76 Fed. Reg. 81,834 (Dec. 29, 2011) (extending the delimiting date).

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 disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)-(5). 

Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B); 38 C.F.R. 
§ 3.317. 

With claims based on undiagnosed illness, 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 (2004). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, and abnormal weight loss. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). 

Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8- 98 (Aug. 3, 1998). 

In determining whether service connection is warranted, 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.

Although the Veteran served during a period of war, he does not contend that his left foot disorder was incurred while engaging in combat, therefore, the provisions of 38 U.S.C.A. § 1154(b) do not apply. 

For the reasons explained below, the Board finds that service connection is warranted for this condition.

Factual Background

The Veteran's service treatment records show that he reported pain in his left foot after dropping a board in his foot in March 2007.  In a July 2007 report of medical history, the Veteran denied "foot trouble (e.g. pain, corns, bunions, etc.)" but endorsed impaired use of arms, legs, hands, or feet.  However, a notation explained that the impaired use was regarding his arm and leg. No complaint was made regarding the foot. 

Shortly after discharge from service, the Veteran underwent a VA examination in January 2008.  He reported that the pain in his foot began two months prior to the examination.  He stated that he purchased a heel cup, which has helped alleviate his pain.  His pain is aggravated by going up and down stairs and walking longer than 30 minutes.  The Veteran denied flares and current treatment.  

Upon physical examination, the examiner found his foot cool to the touch, with no erythema or increased temperature.  Bony prominences were in gross alignment, with no muscle wasting or atrophy noted.  There was no uneven shoe wear. Deep palpation of the left lateral area caused mild pain, with no pain upon deep palpation of the heel, instep, or balls on the foot. The Veteran was able to balance on toes and heels. Dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees.  The Veteran had no pain with initial or repeat range of motion, nor did he have weakness, lack of endurance, lack of coordination, or any decrease in range of motion.  An x-ray of the left foot was normal.  The examiner determined there was no clinical or radiographic evidence to support a diagnosis.  

Legal Analysis 

In this case, the RO denied the Veteran's claim because although there was evidence of left foot pain, there was no evidence of an underlying "chronic disability." In this regard, the Board points out that for a Veteran to qualify for basic entitlement to wartime disability compensation under 38 U.S.C.A. § 1110, a Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). 

However, Congress has created an exception to this basic entitlement rule in providing compensation for a "qualifying chronic disability" in Persian Gulf War Veterans. See 38 U.S.C.A. § 1117. As noted above, a qualifying chronic disability includes signs or symptoms that may be a manifestation of an undiagnosed illness, and the statute specifically includes muscle pain and joint pain.  See 38 U.S.C.A. § 1117(g)(4), (5).  In these circumstances, a Veteran need not have a known clinical diagnosis to be eligible for compensation. 

Here, the Veteran served during the Persian Gulf War and he was deployed to the Southwest Asia theater of operations.  The Veteran complained of foot pain during service.  Post-service, the record does not reflect any abnormal clinical findings pertaining to the left foot.  On VA examination immediately after discharge from service, a clinical examination was negative for any objective evidence of pathology.  Additionally, radiographic evidence showed a normal left foot with no evidence of disability.  

Regarding chronicity, the Veteran stated that his foot pain began as early as March 2007.  A March 2008 treatment record shows the Veteran was being followed by podiatry for left foot pain.  Therefore, the Veteran's left foot pain was manifest over a period of more than six months and is considered a chronic disability for purposes of 38 C.F.R. § 3.317.

Although the Veteran's foot pain has not been attributed to a known clinical diagnosis, the Board finds that it has persisted and is chronic. Therefore, service connection for left foot pain due to an undiagnosed illness must be granted.


ORDER

Service connection for a left foot disorder, claimed as left foot pain, including as due to an undiagnosed illness is granted. 


REMAND

The purpose of this remand is to afford the Veteran VA examinations.

With regard to the Veteran's claim of service connection for scars of the upper back, the Board notes that the Veteran is presently in receipt of service connection for scars of the right shoulder, resulting from surgical repair to the right shoulder during service and tinea versicolor, which manifests as small millimeter to 1.5 centimeter hypopigmented areas on the back and shoulders.  

However, the Veteran has separately claimed entitlement to service connection for unspecified scars of the upper back.  At the January 2008 VA examination, no specific finding was made as to whether the Veteran has additional scars of his upper back, other than those related to his right shoulder surgical repair and his tinea versicolor.  Therefore, the VA examination is inadequate in that regard.  

The Board finds that a clarifying examination is necessary to determine if the Veteran has additional scars of the upper back that were incurred as a result of service.  

With regard to the Veteran's claim of service connection for sleep apnea, a VA examination is necessary to determine whether this disorder was incurred during or as a result of service.  

Service treatment records show that in March 1995, the Veteran denied frequent trouble sleeping.   In July 2002, the Veteran reported frequent trouble sleeping, with waking in a sweat. On a June 2005 post-deployment health assessment, the Veteran reported "still feeling tired after sleeping" and nightmares.  A March 2007 treatment record showed that the Veteran estimated that he sleeps three to four hours per night and that he had frequent nightmares due to an IED explosion.  On a July 2007 report of medical history, the Veteran reported difficulty sleeping.  Also from July 20, 2007 through August 19, 2007, the Veteran recorded his nightly sleep and noted many bad nights of sleep with night sweats and nightmares.  No apnea or snoring was noted in these records.

The Veteran underwent a PTSD VA examination in December 2007.  He reported ongoing difficulty with sleep continuity; specifically that he has frequent nighttime awakenings and terminal insomnia. At a January 2008 mental disorders VA examination, the Veteran again reported difficulty falling and staying asleep.  At the January 2008 general medical examination, the examiner noted a mild restrictive lung disease.   

An October 2009 sleep study showed the Veteran was diagnosed with sleep apnea.  In an October 2010 statement, the Veteran reported that he had trouble sleeping during service and is currently diagnosed with sleep apnea.

VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
 
As the Veteran has evidence of sleep disturbance during service and a current diagnosis of obstructive sleep apnea, a VA examination is necessary to determine if the Veteran's sleep apnea was incurred during or as a result of service.    

With regard to the Veteran's claims of service connection for right cubital tunnel syndrome and right hand ulnar neuropathy, during service, he was diagnosed with right cubital tunnel syndrome and right hand ulnar neuropathy.  Also, during service, the Veteran underwent surgery during service to repair a right fractured elbow.  

The Veteran underwent a VA examination upon his discharge from service in January 2008.  The examiner noted that the symptoms of ulnar neuropathy and cubital tunnel syndrome were relieved and that the only residual was a very slight decreased sensation on the lateral aspect of the right hand.  The Veteran denied any issue of fine motor movement, pain, current treatment, or use of prosthesis.  The examiner did not diagnose the Veteran with either disorder.

The RO denied the Veteran's claim, finding that there was no diagnosis of either disorder.  However, the Board finds that additional information is necessary.  Although the Veteran does not have a diagnosis of ulnar neuropathy or cubital tunnel syndrome, the Veteran does have some degree of numbness in the right hand.  A clarifying examination and opinion is necessary to determine if this numbness constitutes a disability for VA compensation purposes. 

Regarding the Veteran's claim for an increased rating for GERD, his last examination was conducted in January 2008.  The Veteran argues that his symptoms have increased in severity since the time of his last VA examination and therefore, he requires a new examination to determine his current rating.

The mere passage of time, alone, is not sufficient to trigger a remand for another examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  However, the Veteran has claimed that his disorder has worsened since the time of his last VA examination.  The Veteran is competent to report a worsening of symptoms. Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.).

In light of the passage of time since the last examination, and because the Veteran is competent to report a worsening of his GERD, a new examination is in order.

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC must ascertain if the Veteran has received any VA, non-VA, or other medical treatment for scars of the upper back, sleep apnea, right cubital tunnel syndrome, right ulnar neuropathy, and GERD that is not evidenced by the current record.  The Veteran must be provided with the necessary authorizations for the release of any treatment records not currently on file.  The RO/AMC must then obtain these records and associate them with the claims folder.

2. After the passage of a reasonable amount of time, the RO/AMC must afford the Veteran the medical examinations detailed below, to be conducted by appropriately qualified physician(s), who will respond to the inquiries below.  In all examinations, the following considerations will govern:

a. The claims folder, and a copy of this remand, will be made available to the examiner(s) who must acknowledge such receipt and review in any report generated as a result of this remand.  

b. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries.

c. With regard to the Veteran's claim of service connection for scars of the upper back, the examiner must determine if the Veteran has scars of the upper back, excluding the service- connected scar from his right shoulder surgery and any scars from his service-connected tinea versicolor.

d. With regard to the Veteran's claim of service connection for sleep apnea, the examiner must determine if his current diagnosis of sleep apnea was incurred during or as a result of his military service.

i. The examiner must consider the service treatment records showing sleep disturbance and a respiratory disorder during service.

ii. The examiner must also consider whether the in-service sleep disturbance is due to the Veteran's traumatic brain injury or PTSD diagnoses.

e. With regard to the Veteran's claims of service connection for ulnar neuropathy and cubital syndrome, the Veteran must be afforded a VA examination with a hand specialist to determine if the numbness in his right hand constitutes a disability for VA compensation purposes.

i. The examiner shall conduct two-point discrimination testing.

ii. The examiner shall comment on any current functional aspects of the numbness in the Veteran's right hand and any future implications of this numbness on the Veteran's function.

iii. If the Veteran's right hand numbness is a neurologic sign or symptoms that is a manifestation of an undiagnosed illness, the examiner should so state. 

f. With regard to his claim of an increased rating for GERD, the examiner must ascertain the current severity and manifestations of his gastroesophageal reflux disease.  

i. The examiner must report all signs and symptoms necessary for rating the Veteran's gastroesophageal reflux disease under the rating criteria.  

ii. In particular, the examiner should indicate whether the Veteran has persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.  If not, he or she should state whether the Veteran has two or more of these symptoms of less severity.   

iii. The examiner should also note whether there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or any other symptom combinations of severe impairment of health.

3. The RO/AMC must then readjudicate the claims of service connection for scars of the upper back, sleep apnea, right hand cubital tunnel syndrome, right ulnar neuropathy, and an increased rating for GERD to include consideration of all of the evidence of record.  If any of the benefits sought on appeal remains denied, the Veteran and his representative will be furnished a supplemental statement of the case with reasons and bases for the decision.  

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).

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).


______________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs