Citation Nr: 1312801	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  05-33 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for a respiratory disorder due to undiagnosed illness.

2. Entitlement to service connection for shoulder pain, claimed as joint pain, due to undiagnosed illness.

3 Entitlement to service connection for bilateral knee pain, claimed as joint pain, due to undiagnosed illness.

3. Entitlement to service connection for a low back disorder, claimed as muscle pain, due to undiagnosed illness.

4. Entitlement to service connection for fatigue due to undiagnosed illness.

5. Entitlement to service connection for neurologic signs and symptoms due to undiagnosed illness.

6. Entitlement to service connection for headaches due to undiagnosed illness.
7. Entitlement to service connection for a sleep disturbance due to undiagnosed illness.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The case is now under the jurisdiction of the RO in Chicago, Illinois.

The Board remanded this matter in January 2008 and January 2011 for further evidentiary development, to include obtaining etiology opinions for each of the Veteran's claims.  It now returns for appellate review.  The Board finds that the RO partially complied with the dictates of the January 2008 and January 2011 remands.  See Stegall v. West, 11 Vet. App. 268 (1998).  As noted in the remand section below, additional development is required due to inadequate etiology opinions addressing respiratory disorder, shoulder pain, fatigue, headaches, and sleep disturbance.

As provided in the January 2008 and January 2011 Board remands, the Veteran requested a personal hearing before a Veterans Law Judge sitting at the RO in his October 2005 substantive appeal (VA Form 9).  However, in February 2007, in a form responding to a letter from the RO regarding his hearing options, the Veteran stated that he elected to have his claims go directly to the Board.  Although the Veteran did not choose the option on the form that explicitly stated that he no longer wanted a hearing, he also did not choose one of the options for the type of hearing he wanted.  Therefore, the Board construes the Veteran's statement as a withdrawal of his hearing request.  See 38 C.F.R. § 20.702(d), (e); 20.704(d); (e) (2012).

The issues of entitlement to service connection for a respiratory disorder, shoulder pain, fatigue, headaches and sleep disturbance 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 evidence indicates diagnoses of bilateral knee strain, chronic lumbosacral strain, and mild hypertrophic osteoarthritis of the lumbosacral spine, and that the diagnoses are not related to active service.

2. The Veteran has not alleged neurologic signs and symptoms and the evidence does not otherwise show the existence of neurologic signs and symptoms that are related to service or that are due to undiagnosed illness.


CONCLUSIONS OF LAW

1. Bilateral knee pain, claimed as joint pain, was not incurred in active service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.317 (2012).

2. Low back pain, claimed as muscle pain, was not incurred in active service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).

3. Neurologic signs and symptoms were not incurred in active service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1117, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The Board finds that the duty to notify was partially satisfied by a letter sent to the Veteran in August 2004.  The letter addressed all notice elements except notification of degree of disability and the effective date of the disability and was sent prior to the initial unfavorable decision by the AOJ in January 2005.  Curative notice addressing the Dingess/Hartman criteria was sent in April 2006 after which the claims were readjudicated via a December 2006 supplemental statement of the case (SSOC).  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case).  Because the Veteran was provided notice and ample opportunity to respond, and because his claims were readjudicated via a SSOC after the notice was provided, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. 

The duty to assist was also met in this case.  Limited service treatment records are in the claims file.  VA has made multiple attempts to obtain outstanding records from the California Air National Guard, the Records Management Center, the California Adjutant General's Office, the Nevada Adjutant General's Office, the National Personnel Records Center, the Illinois Army National Guard, and the Illinois Adjutant General's Office.  However, none of the foregoing offices had records for the Veteran.  The Board finds that further attempts to obtain records at this time are not warranted.

All pertinent VA and private treatment records have been obtained and associated with the physical and/or Virtual or electronic claims files.  A VA examination with respect to the issues on appeal was conducted in April 2011 and etiology opinions were provided in October 2012.  38 C.F.R. § 3.159(c) (4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file.  The opinions consider all of the pertinent evidence of record and the statements of the Veteran, and the examiner provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110 (West 2002).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from 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, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2012) (VA has adopted an interim final rule extending this date to December 31, 2016).  In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness.  Id.

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. 

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  See Gutierrez  v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  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 (2006).

A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes joint pain as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. 

A "medically unexplained chronic multi symptom 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 will not be considered medically unexplained.  See 38 C.F.R. § 3.317(a)(2)(ii).

There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C).

"Objective indications of 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.  See 38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  See 38 C.F.R. § 3.317(b).

For purposes of section 38 C.F.R. § 3.317, 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.  See 38 C.F.R. § 3.317(a)(4).

First, service personnel records indicate that the Veteran served in operation Desert Shield in the Kingdom of Saudi Arabia from December 1990 to January 1991 and in operation Desert Storm in Southwest Asia from January 1991 to April 1991.  Therefore, the Veteran qualifies for consideration of service connection based on the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

Next, the Board notes that the Veteran's limited service treatment records do not show complaints or treatment of joint, muscular, or neurological symptoms during service.  As noted above, VA made multiple attempts to obtain outstanding treatment records from multiple sources but the attempts were unsuccessful.

May 2004 VA treatment records show the Veteran had aches in his knees but sometimes ached all over.  The diagnosis was generalized joint pain.  Another May 2004 treatment record shows complaints of joint pain and muscle fatigue.

The Veteran had a VA examination in September 2004.  The examiner reviewed the claims file.  The Veteran reported generalized muscle and joint aches; however, the complaints were not observed on examination.  The examiner said the Veteran did not have any specific joint pain at the time of the examination.  The examiner said the Veteran's disability was related to his mental state and that he did not have any joint, muscle, or neurologic disorder that was not related to his current stress situation.

A February 2005 treatment record shows arthralgia and complaints of tenderness to the elbow.  The Veteran had a Gulf War examination in November 2005.  He reported muscle aches and pains and generalized weakness.  The examination showed normal neurological testing. The impression was Peyronie's disease and premature ejaculation.  In May 2009, the Veteran reported nausea and aches and pains of the joints.

The Veteran had a VA examination in April 2011.  The examiner reviewed the claims file and examined the Veteran but did not provide etiology opinions for each of the alleged disabilities.  In October 2012, a different VA examiner provided etiology opinions based on the April 2011 examination report, as well as the information available in the claims file, and available literature.

The reports show complaints of knee discomfort, bilaterally, and a diagnosis of bilateral knee strain.  When asked about muscle symptoms, the Veteran described low back pain and said it had onset during service.  X-rays of the spine show mild hypertrophic osteoarthritis.  The impression was chronic lumbosacral strain.  The Veteran denied specific neurologic symptoms.  The impression was normal neurologic examination.

The April 2011 examiner found no clinical evidence of an undiagnosed, multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches and sleep disturbances.

In the October 2012 opinion, the examiner opined that it is less likely as not that the conditions of the lumbosacral spine, bilateral knee strain, and muscle pain were incurred in or caused by the claimed in-service injury, event, or illness because the service treatment records did not show complaints or evaluations related to the lumbosacral spine, knees, or muscles during service.

The Board has also reviewed the Veteran's lay statements; however, his statements do not directly pertain to the issues addressed herein.  Therefore, his statements will not be addressed further.

Based on a review of the evidence, the Board finds that service connection for a bilateral knee disability, claimed as joint pain, a low back disability, claimed as muscular pain, and neurological symptoms is not warranted.  First, the knees and spine have a diagnosis, therefore the disabilities are not subject to service connection based on the presumptive provisions of 38 C.F.R. § 3.317 for undiagnosed illness.  Service connection is not warranted on a direct basis because the service treatment records do not show knee or spine complaints or treatment during service and treatment records dated subsequent to service do not relate the disabilities to service.  Specifically, the VA examiners did not find a relationship between disabilities and service.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral knee strain, claimed as joint pain, and a low back disability, claimed as muscle pain.  Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt provision does not apply.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The appeals are denied.

Regarding neurological symptoms, the evidence fails to show the existence of any alleged symptoms.  Neurological testing was normal in November 2005 and the Veteran denied having neurological symptoms in April 2011.  Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, without current neurological symptoms or a diagnosis, service connection for neurological symptoms cannot be granted on any basis.  The appeal is denied.


ORDER

Service connection for bilateral knee pain, claimed as joint pain, is denied.

Service connection for a low back disability, claimed as muscle pain, is denied.

Service connection for neurologic signs and symptoms is denied.


REMAND

The Veteran seeks service connection for a respiratory disorder to include as due to an undiagnosed illness.  February 1992 chest x-rays show evidence of a small calcified granuloma and a 5mm nodular density projected over the periphery of the left base.  A February 1992 treatment record shows a diagnosis of #10 granulomatous disease.  A March 1992 computerized tomography report shows a pulmonary nodule measuring approximately 8mm in diameter that was indeterminate in nature.  In September 2004, the Veteran had a VA examination during which he reported occasional shortness of breath; however, the Veteran related it to anxiety.

During the April 2011 VA examination, the Veteran reported subjective shortness of breath with exercise.  The examiner found no abnormalities of the chest or respiratory system.  X-rays showed calcified granulomata.  Pulmonary function test (PFT) results indicate that the Veteran was unable to complete lung volumes testing.  The April 2011 examiner diagnosed shortness of breath historically with exercise and noted a normal clinical evaluation and PFT testing.  In the discussion, the examiner said that while subjective symptoms were described, objective data was not available to render a clinical diagnosis.  In October 2012, after reviewing the claims file, the VA computerized medical records, the April 2011 Gulf War VA examination, and medical literature, a VA examiner opined that it is less likely than not that the inability to complete lung volume was secondary to undiagnosed illness.  Unfortunately, the examiner did not indicate why the inability to complete lung volume was not secondary to undiagnosed illness.  The examiner also failed to indicate whether the granulomata disorder was a current disease, whether it was related to service, and the impact of the disorder on the Veteran's ability to breathe.  Therefore, the Board finds that a remand is necessary to provide another examination and opinion addressing the Veteran's alleged respiratory symptoms.

The Veteran seeks service connection for fatigue and sleep disturbance as due to an undiagnosed illness.  The Veteran had a Gulf War examination in April 2011.  The examiner did not provide etiology opinions regarding the Veteran's complaints of fatigue or sleep disturbance.  At most, the examiner found no clinical evidence of an undiagnosed, multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches and sleep disturbances.  In October 2012, a VA examiner reviewed the claims file, VA computerized medical records, the April 2011 Gulf War VA examination, and literature, and provided opinions regarding the etiology of the Veteran's fatigue and sleep disturbance.  In the summary of symptoms of sleep disturbance, both the April 2011 and October 2012 examiners said the Veteran snored but had not had a formal sleep study.  A review of the claims file shows that the Veteran submitted records from HRMC which show a sleep study was conducted in March 2006.  The study shows a diagnosis of sleep apnea.  The records were received in June 2012, after the April 2011 examination but prior to the October 2012 examination.  Because the October 2012 examiner did not address the private treatment records and potential relationship between sleep apnea and the symptoms of fatigue and sleep disturbance, the Board finds the October 2012 examiner's opinion is inadequate for rating purposes.

In addition, both VA examiners said the Veteran was on antidepressant therapy which had affected sleep quality.  The October 2012 examiner did not indicate the relationship, if any, between the current sleep disturbance and/or fatigue and medications.  Therefore, this examination report is inadequate for rating purposes.  On remand, a new VA examination should be scheduled to determine whether the Veteran's symptoms of fatigue and sleep disturbance are due to a diagnosed sleep disorder, such as sleep apnea, due to medications, or due to an undiagnosed illness.  38 C.F.R. § 4.2.  See generally Hampton v. Gober, 10 Vet. App. 481 (1997) (VA examination which does not contain an express finding regarding a disability for which an examination was requested is not sufficient to satisfy the duty to assist).
The Veteran also seeks service connection for a bilateral shoulder disability, claimed as joint pain.  During the April 2011 VA examination, the Veteran complained of shoulder discomfort, bilaterally.  Range of motion testing showed limitation of flexion, bilaterally; abduction, bilaterally; and external rotation, bilaterally.   X-rays were normal.  The impression was somatic complaints of the right and left shoulders.  The April 2011 examiner said there was no clinical evidence of an undiagnosed, multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches and sleep disturbances.  In the October 2012 opinion, the examiner opined that the somatic complaints were less likely than not incurred in or caused by the claimed in-service injury, event or illness based on the lack of complaints or evaluations related to the shoulders during service.  The examiner listed symptoms of chronic multi-system illness and stated that the symptoms of chronic multi-system illness are vague.  The examiner concluded that the Veteran had musculoskeletal pain and no diagnosis.  He did not indicate whether the somatic complaints of the shoulders were symptoms of an undiagnosed illness.  Therefore, the opinion is inadequate and the claim must be remanded for an additional VA examination for clarification purposes.

Finally, the Veteran seeks service connection for headaches as due to an undiagnosed illness.  May 2004 VA treatment records show the Veteran reported occasional headaches which he attributed to tension and occasional sinus trouble.  A November 2005 treatment record shows reports of occasional headaches related to tension.

During the April 2011 VA examination, the Veteran said the onset of his headaches was in 1991 and that they are associated with activity, stress, and poor sleeping.  The impression was chronic cephalgia pattern, muscle tension historically.  The April 2011 examiner said there was no clinical evidence of an undiagnosed, multisystem illness with connection between muscle, joint pain, fatigue, neurological symptoms, headaches and sleep disturbances.  The October 2012 examiner did not provide an etiology opinion.  He noted symptoms of chronic multi-system illness and said the Veteran had headaches and no diagnosis.  He did not clarify whether the headaches are a symptom of an undiagnosed illness.  Therefore, the Board finds that the opinion is inadequate and that the claim must be remanded for an additional VA examination and opinion for clarification purposes.

Accordingly, the case is REMANDED for the following action:

1.  The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded the following examinations:  

(A) A VA respiratory examination to determine the nature, severity, and etiology of any respiratory problems, to include as due to an undiagnosed illness.  The claims folder, copies of pertinent records in the electronic "Virtual VA" file, and a copy of this remand must be made available to the examiner for review in conjunction with the examination.  The examiner must review all of the evidence of record, to specifically include the Veteran's service treatment records, post service treatment records, and post service VA examination reports.  All necessary special studies or tests are to be accomplished if deemed necessary by the examiner.

After a review of the examination findings and the entire evidence of record, the examiner should render an opinion as to the following:

(a) Is the Veteran's respiratory condition due to a diagnosed disease or disability?

(b) If the answer to (a) is in the affirmative, indicate whether any such disorder began during service or is causally linked to any incident of service?

(c) If any respiratory condition cannot be attributed to a known diagnosis, the examiner should so note and provide an opinion as to the whether the condition is attributed to an undiagnosed illness and why. 

(d) The examiner must address the significance of granulomatous disease which was identified in February 1992, and indicate whether the condition has been active since July 2004.  If so, indicate whether the condition began in service or is casually linked to service and whether the condition has in any way caused or aggravated the Veteran's current respiratory symptoms.

The examiner is requested to provide a rationale for any opinion provided.  If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate.

The examiner is also advised that an undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.

(B) A VA examination(s) in connection with his claims for service connection for bilateral shoulder pain, claimed as joint pain, headaches, fatigue, and sleep disturbance as due to an undiagnosed illness.  The claims folder, copies of pertinent records in the electronic "Virtual VA" file, and a copy of this remand must be made available to the examiner for review in conjunction with the examination.  The examiner must review all of the evidence of record and conduct all necessary testing, to include a sleep study if appropriate.  Based on the examination and review of the record, the examiner should express an opinion on the following:

(a) Does the Veteran have bilateral shoulder pain, headaches, fatigue, and sleep disturbance which are signs or symptoms of an undiagnosed illness?  If so, the examiner should specifically determine whether the Veteran has objective indications of the symptoms or signs that are identified as due to an undiagnosed illness.

(b) The examiner should also determine whether the Veteran has a medically unexplained chronic multi-symptoms illness (a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome).

(c) If it is determined that the Veteran's symptoms are due to a known disease or injury (diagnosed versus undiagnosed illness), the examiner(s) is requested to determine whether the underlying disease or injury was incurred during service and, in the case of a disease, is linked to any incident of active duty.  The examiner must specifically address the March 2006 sleep study indicating a diagnosis of sleep apnea and indicate whether the claimed fatigue and/or sleep disturbance are related to the diagnosis.  In addition, the examiner must also address past indications of a relationship between fatigue and sleep disturbance and the Veteran's mental health symptoms and/or medications.

The examiner is advised that an undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.
A complete rationale for any opinion expressed should be included in the examination report. If the examiner(s) is unable to answer any question presented without resort to speculation, he or she should so indicate.

The examiner is further advised that a medically unexplained chronic multi-symptoms illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  It 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.  Disabilities that have existed for at least six months and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered "chronic."  See 38 C.F.R. § 3.317 (a) (2), (3).

3.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs