Citation Nr: 1312074 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 05-21 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include back strain, as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a respiratory disorder other than emphysema, claimed as breathing problems, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for joint problems of the knees and elbows, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for memory loss, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for tension headaches, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for a cervical spine disability, to include arthritis, as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to service connection for emphysema, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 8. Entitlement to service connection for chronic skin rash, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 9. Entitlement to service connection for a gastrointestinal (GI) disorder, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 10. Entitlement to service connection for a sleep disorder, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317. 11. Entitlement to service connection for bunions, right foot. 12. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran had active service from September 1980 to April 1987 and from January to June 1991, including service in the Southwest Asia Theater of operations in support of Operations Desert Shield/Storm. His military occupational specialty was as a light wheel mechanic. These matters are before the Board of Veterans' Appeals (Board) on appeal from decisions of February 2003 and July 2004 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). In February 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board remanded the case for additional development in June 2010 and, among other things, in April 2012 reopened service connection claims for a lumbar spine disability, a respiratory disorder, joint problems of the knees and elbows, memory loss, and tension headaches and remanded the issues on appeal for further development. Upon review of the January 2013 written brief presentation, the Veteran's representative raised additional issues of entitlement to service connection for bilateral hearing loss and tinnitus. The Board notes that service connection for these conditions was denied in January 2007. The Veteran was notified and did not appeal. Thus, the claims are final. However, the Veteran may reopen the claims with submission of new and material evidence. At this point, these matters have not be developed or adjudicated and are not presently before the Board. They are referred to the RO for such further action as is deemed appropriate. The claims of entitlement to service connection for right foot bunions and bilateral carpal tunnel syndrome are addressed below. All other issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. A right foot bunion disability was not manifest during active service and a present disability is not shown to have developed as a result of an established event, injury, or disease during active service. 2. Bilateral carpal tunnel syndrome was not manifest during active service and a present disability is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A right foot bunion disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Bilateral carpal tunnel syndrome was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in April 2004, December 2004, July 2010, April 2012, and July 2012. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. It is significant to note that the Veteran does not contend and the evidence does not otherwise indicate that right foot bunions and bilateral carpal tunnel syndrome may have been incurred as a result of chemical or toxin exposure during service in Southwest Asia. Further attempts to obtain additional evidence as to these issues would be futile. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, it is clear from the Veteran's testimony that he understood the elements of establishing service connection for his claims in that he tried to establish how each of the condition had their onset during service. The Veteran was assisted at the hearing by an accredited representative from The American Legion service organization. The Veteran was asked questions to ascertain why he felt that each condition was related to service. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. VA medical opinions obtained as to the issues addressed in this decision are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to these issues has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate these claims would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). VA regulations also provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability (i) became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (2012). Foot bunions and carpal tunnel syndrome are not chronic diseases, undiagnosed illness, medically unexplained chronic multisymptom illnesses, nor infectious diseases or long-term health effects associated with infectious disease for presumptive service connection purposes. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) Lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Analysis Review of the STRs is negative for report of, treatment for, or diagnoses of right foot bunions or bilateral carpal tunnel syndrome. An August 1983 report of medical history noted bilateral callus formation to the feet, but that no treatment was received. An August 1983 examination report revealed a normal clinical evaluation of the feet. An October 1983 radiographic report noted complaints of pain and tenderness to the right fourth and fifth digits with no evidence of fracture. In his April 1993 report of medical history the Veteran denied any joint problems to the wrists or feet. Clinical evaluation at that time revealed normal feet and upper extremities. VA neurological disorders examination in January 1997 noted good grip strength. No complaints associated with carpal tunnel syndrome were included. Private treatment records show the Veteran injured his right wrist in a work-related accident in January 2001. VA treatment records show he underwent a right foot bunionectomy in November 2003. The pre-operative diagnosis was hallux abductovalgus of the right foot. In statements and testimony in support of his claims the Veteran asserted that his right foot bunions were the result of poor fitting boots during service. He claimed he had carpal tunnel syndrome as a result of his service duties as a mechanic. On VA examination in May 2004 the Veteran reported he developed bunions on the right foot in 1980 and that in 1987 he noticed pain and swelling in the wrists. The examiner noted X-ray studies of the wrists and hands were normal and that X-rays of the right foot were consistent with post bunionectomy. Diagnoses bilateral carpal tunnel syndrome and status post right foot bunionectomy were provided. VA joints examination in September 2010 included diagnoses of bilateral carpal tunnel syndrome with ulnar neuropathy and residuals, status post bunionectomy, right foot. Following physical examination and review of electromyography, nerve conduction, and X-ray studies, the examiner found the Veteran's right foot bunion disorder was "less likely as not" due to or a result of an injury or treatment in service. Regarding the bilateral carpal tunnel syndrome disorder, the examiner stated there was no mention of this disorder in the service treatment records and that he was unable to provide an etiology opinion without resort to mere speculation. A July 2012 VA examination report, in essence, shows the examiner found it was less likely a right foot bunion disorder was incurred in or as a result of service including as a result of service in Southwest Asia. It was noted that the medical literature indicated hallux valgus (bunions) were caused by genetic factors rather that external factors such as poorly fitting footwear. The examiner further found it was less likely carpal tunnel syndrome was incurred in or as a result of service including as a result of service in Southwest Asia. The American Society for Surgery of the Hand, it was noted, had taken the position that there was no causal relationship between specific work activities, such as mechanical repair work, and conditions such as carpal tunnel syndrome. Based upon the evidence of record, the Board finds that a right foot bunion disability and bilateral carpal tunnel syndrome were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. The September 2010 and July 2012 VA medical opinions in this case are persuasive and based upon adequate rationale. The opinions are shown to have been based upon thorough examinations, thorough review of the evidence of record, and adequate consideration of the Veteran's statements concerning symptom manifestations. The Veteran's statements that these disorders were first manifest during active service are found to be inconsistent with his reports of medical history during service and with other post-service medical findings. His statements, to this extent, are not credible. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for bunions of the right foot and bilateral carpal tunnel syndrome. The claims are denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, No. 01- 7006 (Fed. Cir. December 17, 2001). ORDER Entitlement to service connection for residuals of bunions, right foot, is denied. Entitlement to service connection for bilateral carpal tunnel syndrome is denied. REMAND As to all other claims on appeal, it is the Veteran's assertion, at least in part, that he has present disabilities or chronic symptom manifestations as a result of service in Southwest Asia to include exposure to nerve gas. He has specifically asserted in statements and testimony that he has disorders of the joints, respiratory disorders, GI disorders, headaches, memory loss, and sleep apnea, due to this exposure. The case was remanded in April 2012 for additional evidentiary development. While an examination was conducted in July 2012, the Board finds that the requested action was not sufficiently completed. The examiner's opinions as to etiology and his statements that the evidence was insufficient as to the remaining issues failed to acknowledge records indicating treatment in service or to reconcile the provided opinions with the other medical and lay evidence of record. A pertinent, but not exhaustive, summary of the medical evidence was provided in the Board's April 12, 2012, decision. The medical evidence of record includes inconsistent opinions, including an October 1995 VA examiner's impression of Persian Gulf War syndrome. Accordingly, an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). It is significant to note that the April 2012 remand instructions included a request that the RO/AMC contact the appropriate service department and/or federal agency to determine the extent to which the Veteran might have been exposed to neurotoxins and/or vaccines, to include Sarin gas, as a consequence of this service in the Southwest Asia Theater of operations. A review of the record, to include Virtual VA electronic records, does not reflect that this was accomplished. The Board acknowledges, however, that VA's duty to assist in obtaining records in the custody of a federal department or agency is, in essence, limited to existing records and that if requested by VA the claimant must provide enough information to identify and locate the existing records. See 38 C.F.R. § 3.159(c)(2)(i). The Board also notes that although it has not been determined whether the Veteran was likely exposed to the nerve agents (e.g., Sarin and Cylosarin) while serving in the Persian Gulf, a VA Training Letter (10-01), dated February 2010, includes a list of possible environmental hazards that veterans in the Persian Gulf experienced during service. Those possible environmental hazards include exposure to smoke and particles from oil well fires, exposure to pesticides and insecticides, exposure to indigenous infectious diseases, exposure to solvent and fuel fumes, ingestion of pyridostigmine bromide tablets, as a nerve gas antidote, the combined effect of multiple vaccines administered upon deployment, inhalation of ultra fine-grain sand particles, and exposure to smoke and particles from military installation "burn pit" fires that incinerated a wide range of toxic waste materials. Based a review of the available record, the Board finds that further development is required for an adequate determination of the remaining issues on appeal. It is acknowledged that the April 2012 remand request related to an effort to verify possible exposure to neurotoxins and/or vaccines was too broad and that it is more appropriate that the Veteran be requested to provide enough information to identify and locate any existing records. See 38 C.F.R. § 3.159(c)(2)(i). The Board further finds that whether or not such information is provided by the Veteran an additional medical opinion is required which adequately addresses the medical evidence included in the Veteran's service treatment records, the post-service examination opinions, and the competent and credible lay evidence of record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must request that the Veteran provide enough information to identify and locate any existing service department and/or federal agency records associated with his exposure to neurotoxins and/or vaccines, to include Sarin gas, as a consequence of his service in the Southwest Asia Theater of operations. Such information should include the custodian or agency holding the records, the approximate time frame covered by the records, and the condition for which treatment was provided for any medical treatment records. Upon receipt of such information, appropriate action must be taken to obtain the service department and/or federal agency records. Follow-up inquiries must be conducted accordingly, unless it is determined that the records sought do not exist or if further efforts to obtain them would be futile. All documents must be associated with the claims file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After completion of the above and any additional development deemed necessary, the Veteran's claims file should be returned to the July 2012 VA examiner, or if unavailable to another appropriate medical specialist, for clarification of the provided opinion. The examiner must acknowledge records indicating any pertinent treatment in service and reconcile the provided opinions with the other pertinent medical and lay evidence of record. The opinion must address whether it at least as likely as not (50 percent probability or greater) that a lumbar spine disability, a respiratory disorder other than emphysema, joint problems of the knees and elbows, memory loss, tension headaches, a cervical spine disability, emphysema, chronic skin rash, gastrointestinal disorder, or a sleep disorder were incurred in or aggravated by service, to include whether any chronic or recurrent symptoms may be attributable to undiagnosed illness, medically unexplained chronic multisymptom illnesses, infectious diseases, or the long-term health effects associated with infectious disease. The following notice should be provided to the examiner as recommended by the VA Training Letter (10-01), unless VA records demonstrate that training letter has been rescinded or is otherwise found to be not applicable. Examiner, VA statutes and regulations provide for service connecting certain chronic disability patterns based on exposure to environmental hazards experienced during military service in Southwest Asia. The environmental hazards may have included: exposure to smoke and particles from oil well fires; exposure to pesticides and insecticides; exposure to indigenous infectious diseases; exposure to solvent and fuel fumes; ingestion of pyridostigmine bromide tablets, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grain sand particles. In addition, there may have been exposure to smoke and particles from military installation "burn pit" fires that incinerated a wide range of toxic waste materials. The chronic disability patterns associated with these Southwest Asia environmental hazards have two distinct outcomes. One is referred to as "undiagnosed illnesses" and the other as "diagnosed medically unexplained chronic multisymptom illnesses" that are without conclusive pathophysiology or etiology. Examples of these medically unexplained chronic multi-symptom illnesses include, but are not limited to: (1) chronic fatigue syndrome, (2) fibromyalgia, and (3) irritable bowel syndrome. Diseases of "partially explained etiology", such a diabetes or multiple sclerosis, are not considered by VA to be in the category of medically unexplained chronic multisymptom illnesses. Additionally, signs and symptoms that may be manifestations of both undiagnosed illnesses or diagnosed medically unexplained chronic multi-symptom illnesses include, but are not limited to: (1) fatigue; (2) signs or symptoms involving the skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the upper or lower respiratory system; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. Please examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern. Please review the claims file as part of your evaluation and state that it was reviewed. The Veteran has claimed a disability pattern related to (insert symptoms described by Veteran). Please provide a medical statement explaining whether the Veteran's disability pattern 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. If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern 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 please provide a medical opinion, with supporting rational, as to whether it is "at least as likely as not" that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. 3. Then, the issues remaining on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs