Citation Nr: 1314629 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-44 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for memory loss, joint pain, muscle pain, and fever, including as due to an undiagnosed illness. 2. Entitlement to service connection for rashes, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 RO decision, which denied the aforementioned claims. The Board notes that the aforementioned claims were originally characterized by the RO as a single issue. However, in light of the Veteran's assertions and the medical evidence of record, the Board finds it appropriate to construe this claim as encompassing two separate issues. Thus, the claim has been recharacterized accordingly. The issue of entitlement to service connection for rashes, including as due to an undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and credible evidence of record does not show memory loss, joint pain, muscle pain, and fever to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW The Veteran's memory loss, joint pain, muscle pain, and fever were not incurred in or aggravated by active service, and may not be presumed to be related to his service in the Persian Gulf. See 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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; and (3) that the claimant is expected to provide. VCAA letters dated in November 2008 and December 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA medical records, and private medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations in May 2009 and July 2010. The examiners reviewed the claims files, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. As such, the Board finds these examination reports and accompanying opinions to be thorough, complete, and sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis and psychoses, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the present case, the Veteran has contended that he suffers from certain disabilities that are a manifestation of an undiagnosed illness resulting from his service in the Persian Gulf region during Operation Desert Shield/Desert Storm. With regard to such claims, in November 1994, Congress enacted the Persian Gulf War Veterans' Benefits Act, as title I of Public Law No. 103-446. That statute, in part, added a new section 1117 to title 38, United States Code, authorizing VA to compensate any Persian Gulf Veteran suffering from a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. In establishing the presumptive period, the Secretary was to review any credible scientific or medical evidence, the historical treatment afforded other diseases for which service connection is presumed, and other pertinent circumstances regarding the experience of Persian Gulf Veterans. In February 1995, VA implemented the Persian Gulf War Veterans' Benefits Act by adding a regulation at 38 C.F.R. § 3.317, which defined qualifying Gulf War service, established the presumptive period for service connection, and denoted a broad but non-exclusive list of signs and symptoms which may be representative of undiagnosed illnesses for which compensation may be paid. In the original version of 38 C.F.R. § 3.317, the presumptive period during which a Veteran had to experience manifestations of a chronic disability was two years after the date on which he/she last performed active service in the Southwest Asia theater of operations during the Gulf War. In April 1997, VA published an interim rule which extended the presumptive period to December 31, 2001. This extension of the presumptive period was adopted as a final rule in March 1998, and, in October 1998, Public Law No. 105-277, §1602(a)(1), added 38 U.S.C.A. § 1118 , which codified the presumption of service connection for manifestations of an undiagnosed illness. In November 2001, VA issued an interim final rule which amended 38 C.F.R. § 3.317(a)(1)(i) to expand the presumptive period from December 2001 to December 2006. This interim rule became effective November 9, 2001. The Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976 (2000), amended various provisions of 38 U.S.C.A. §§ 1117, 1118. Section 202 of the VEBEA re-styled the term "chronic disability" in 38 U.S.C.A. § 1117 as "qualifying chronic disability," and expanded compensation availability for Persian Gulf Veterans to include "a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms", as well as "[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service- connection." The VEBEA also codified, in statute, with slight modification, the non-exclusive list of signs or symptoms recognizable under 38 C.F.R. § 3.317(b), supra, in new 38 U.S.C.A. § 1117(g), to include "(2) Unexplained rashes or other dermatological signs or symptoms" and "(3) Headache." In addition, the VEBEA extended the presumptive period, during which an undiagnosed illness must be manifested to the requisite 10 percent degree, to December 31, 2006. The changes effected by the VEBEA were mandated to become effective on March 1, 2002. The presumptive period was extended to December 31, 2011. To afford the Veteran the maximum benefit of the law, to whatever extent those changes are pertinent to the issues in this case, the Board will consider both the pre- and post-VEBEA law. Effective December 29, 2011, VA amended 38 C.F.R. § 3.317. Specifically, VA revised § 3.317(a)(1)(i) to extend the presumptive period, during which an undiagnosed illness must be manifested to the requisite 10 percent degree, to December 31, 2016. 76 Fed. Reg. 81834 (Dec. 29, 2011). In order to obtain a grant of service connection pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a) (2012); 76 Fed. Reg. 81834 (Dec. 29, 2011); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a) (2012). "'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." 38 C.F.R. 3.317(a)(2) (2012); Neumann, supra. Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Veteran's military records document that he served in Southwest Asia during the pertinent time period. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. A review of the Veteran's service treatment records reveals no complaints, treatment, or diagnoses of memory loss, joint pain, muscle pain, or fever. Service medical examination reports from August 1979, December 1983, May 1988, and June 1992 show that the Veteran had a normal head, spine, upper extremities, and lower extremities. The Veteran indicated on a Report of Medical History completed in June 1992 that he did not experience fever, swollen or painful joints, a head injury, cramps in his legs, lameness, painful shoulders or elbows, recurrent back pain, or loss of memory. Private treatment records from September 2007, March 2008, July 2008, September 2008, October 2008, November 2008, December 2008, January 2009, February 2009, April 2009, May 2009, and June 2009 show that the Veteran was alert and had normal bowel sounds. A private medical consult from September 2008 reflects that the Veteran had no history of fever or arthralgia. In November 2008, the Veteran underwent a VA Persian Gulf Registry examination. The report reflects that the Veteran suffered a stroke in February 2007. The examiner observed that the Veteran had normal muscles, joints, and bowel sounds. A private hospital record shows that in January 2009, the Veteran was hospitalized after falling and hitting his head in a parking lot. In April 2009, the Veteran underwent a VA Gulf War examination. The Veteran complained of occasional nausea and vomiting over the previous two weeks. He also reported a history of bloating over the previous two months. It was noted that the Veteran had two strokes in the past. The report reflects that the Veteran reported no history of muscle pain, joint pain, back pain, or fever. The Veteran remarked that he had pain above his ankles when walking and standing, but the pain was relieved by rest and elevation. The examiner opined that the Veteran was a poor historian due to memory loss. The examiner further observed tenderness to palpation and pain above the Veteran's ankles bilaterally. The examiner indicated that the Veteran's short-term memory was affected secondary to his stroke. The examiner concluded that there was no subjective or objective evidence of muscle pain, joint pain, or history of fever. He gave a diagnosis of shin splints in the bilateral lower extremities. He also gave a diagnosis of two cerebrovascular accidents with residuals of memory problems and unsteady gait. On VA mental examination in May 2009, the Veteran said that he did not read because he could not remember anything that he would read. The examiner noted that the Veteran had previously had two strokes; additionally, the Veteran slipped and fell on ice previously and was knocked out for two days. The examiner found that the Veteran's short-term memory was poor. The examiner further found that the Veteran's cognitive functioning on verbal and numerical tasks was poor. The examination report contains the Veteran's remarks that his memory difficulties began at the time of his stroke approximately two years previously. The examiner gave a diagnosis of dementia characterized by severe short-term memory problems and dysfunctional executive functioning. The examiner reiterated that the Veteran related his memory and dementia dysfunction to his strokes which occurred two years previously and not to his time in the service. The examiner concluded that it was not possible to see the Veteran's condition including his memory loss and anxiety as related to his service. Another private medical consult from May 2009 reflects that the Veteran denied a recent history of fever or chills. A VA treatment record from May 2009 reflects that the Veteran experienced joint pain. VA treatment records from June 2009 and April 2010 show that the Veteran had no complaints of chills, fever, fatigue, or other musculoskeletal complaints. VA treatment records from July 2009 and August 2009 reflect that the Veteran's joints were not tender. An April 2010 treatment note reflects that the Veteran had no chills, fever, fatigue, or musculoskeletal complaints. In July 2010, the Veteran underwent another VA Gulf War Registry examination. The examiner observed that the Veteran had normal muscles and joints. He underwent another VA Gulf War Guidelines examination in July 2010. The Veteran reported experiencing one episode of fever in 2009. His wife said that at that time, the Veteran was in the hospital after a fall in which he hit his head. The Veteran complained of joint pain in his bilateral knees and in his spine. He also said he had muscle pain in the back of his legs. The examiner remarked that the Veteran's posterior calf pain began after he started dialysis, and the Veteran's foot cramping was most likely due to dialysis. The examiner indicated that the Veteran's one episode of fever was isolated. The examiner gave further diagnoses of lumbar spine arthritis and bilateral knee degenerative changes, based on X-rays. The examiner opined that the Veteran's disability pattern was one of a disease with clear and specific etiology ; specifically, the Veteran's posterior calf cramping had a clear and specific etiology related to his dialysis treatment, and the Veteran's isolated fever had a clear and specific etiology. The examiner added that the Veteran's lumbar spine arthritis and bilateral knee degenerative changes also had a clear and specific etiology. After a review of the medical literature, the examiner remarked that there was no current evidence that any of the Veteran's conditions evaluated at that time were related to the environmental hazards experienced during his military service. A VA mental examination was performed in July 2010. The examiner noted that the Veteran had multiple strokes, chronic obstructive pulmonary disease, high blood pressure, and was currently on dialysis for renal failure. The report contains the Veteran's report that his memory problems started following his first stroke in 2007. The Veteran's wife reported that the Veteran experienced strokes in 2007, 2008, and 2009. The Veteran also reported that in January 2009 he fell on ice and was knocked unconscious for three days. The Veteran complained of significant problems with short-term and long-term memory. He was unable to remember the ages of his children or grandchildren or the dates of his service. The examiner gave diagnoses of depressive disorder and cognitive disorder. The examiner discussed the Veteran's health problems, health history, and treatment, and concluded that the Veteran's problems with depression and cognition were less likely than not to be related to a specific exposure event in Southwest Asia. On his VA form 9 submitted in October 2010, the Veteran said that his memory loss, joint pain, muscle pain, and fever existed prior to his stroke. As an initial matter, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated arthritis or a psychosis to a compensable degree within one year of discharge from active duty. As such, service connection for arthritis or a psychosis cannot be granted on a presumptive basis. Moreover, as the Veteran has been diagnosed with a disability of the lumbar spine, bilateral knees, and a psychiatric disability (namely lumbar spine arthritis, degenerative joint disease of the bilateral knees, depression, and a cognitive disorder), service connection cannot be granted for the Veteran's complaints of back pain, knee pain, depression, a cognitive disorder, and dementia as due to an undiagnosed illness. Further, the July 2010 VA examiner remarked that the Veteran's muscle pain and cramping and isolated fever had clear and specific etiologies-namely, the Veteran's dialysis, and his treatment in an Intensive Care Unit for a head injury in 2009, respectively. As such, service connection for these disorders cannot be granted on a presumptive basis under 38 C.F.R. § 3.317. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no medical evidence of record indicating that the Veteran's lumbar spine arthritis, degenerative joint disease of the bilateral knees, depression, cognitive disorder, or dementia were caused or aggravated by his active duty service. Moreover, the most recent medical opinions of record on the matter specifically reflect that these disorders are less likely than not related to his time in the military. The claims file contains no medical opinions to the contrary. Further, the Veteran's complaints of muscle cramps and fever have not resulted in an actual diagnosis of a disability. Therefore, as there is no medical evidence linking a currently diagnosed disability to service, this claim must be denied on a direct basis. The Board acknowledges the Veteran's contentions that he experiences memory loss, muscle pain, joint pain, and fever as a result of his active duty. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise to render an opinion on their etiology in this case; there is no observable cause and effect relationship. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). While the Board has considered the Veteran's contentions regarding the presence of symptoms, the Board ultimately places more probative weight on the etiological opinions of the VA medical professionals, who reviewed the claims file, examined the Veteran, and considered his assertions. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for memory loss, joint pain, muscle pain, and fever, including as due to an undiagnosed illness, is denied. REMAND The Veteran is seeking service connection for rashes, including as due to an undiagnosed illness. Service treatment records show that in October 1980, the Veteran was treated for a rash that had appeared all over his body. The rash was noted to be erythemous. Subsequent treatment records are negative for symptoms of a skin disorder. In July 2010, the Veteran was afforded a VA skin examination. The examiner stated that he found no mention of any rashes in the claims file. After examining the Veteran, the examiner gave a diagnosis of eczematous-type dermatitis on the Veteran's neck, shoulders, and upper chest. The examiner felt that the dermatitis was not likely to be related to the Veteran's service, as there was no mention of a rash in any of the records, and the Veteran reported that he was never treated during his service for any type of rash. 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). In this case, the July 2010 VA examiner based his negative nexus opinion on a finding that there was no mention of a rash in any of the claims file records. However, as noted above, the Veteran was treated for a rash in October 1980 while on active duty. As such, the Board finds that the Veteran should be afforded a new VA skin examination for an etiology opinion regarding his diagnosed eczematous-type dermatitis-one which discusses the Veteran's documented in-service treatment. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all recent, relevant VA treatment records that have not yet been associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination for his skin condition. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms relating to his claimed skin condition. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current skin conditions. Then, an opinion should be provided as to whether it is at least as likely as not that any of the Veteran's diagnosed skin conditions were incurred in or aggravated by his active duty service. The examiner is specifically requested to discuss the Veteran's documented in-service treatment for a rash in October 1980. If the Veteran is not determined to have a diagnosable skin condition, the examiner should specifically indicate such in the report of examination. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that 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. The examiner should provide a complete rationale for any opinions provided. 3. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC). In the event that the claim is not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs