Citation Nr: 1315089 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 04-18 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ankle myofascial syndrome, claimed as joint pain, including as due to an undiagnosed illness. 2. Entitlement to service connection for bilateral elbow myofascial syndrome, claimed as joint pain, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from February 1989 to January 1993, including participation in Operation Desert Shield and Operation Desert Storm, in the Southwest Asia Theater of Operations, during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA). In a December 2006 decision and remand, the Board dismissed the claims of entitlement to service connection for allergies, residuals of a nasal fracture, residuals of a fractured thumb, and a disability manifested by numb toes, as the Veteran withdrew his appeal as to such issues. The Board denied entitlement to service connection for right-ear hearing loss; and remanded the claims of entitlement to service connection for residuals of a neck injury, a low back disorder, headaches, left-ear hearing loss, an abscess of the spine, a cyst of the neck, an excised lipoma of the low back, residuals of a resected cyst and perirectal abscess, a sebaceous cyst of the right lower extremity, a sleep disorder, shaking hands, and joint pain in the knees, ankles, and elbows. By a December 2008 rating decision, the Appeals Management Center (AMC) granted service connection for lumbar myofascial syndrome and left knee patellofemoral syndrome. By a June 2009 decision and remand, the Board denied the claim of entitlement to service connection for left-ear hearing loss and remanded the remaining claims. By a March 2012 decision and remand, the Board denied the claims of entitlement to service connection for shaking hands, headaches, a sleep disorder, an abscess of the spine, a cyst of the neck, an excised lipoma of the low back, residuals of a resected cyst and perirectal abscess, and a sebaceous cyst of the right lower extremity; and remanded the remaining claims. By a July 2012 decision, the AMC granted service connection for chronic cervical strain and right knee chronic patellofemoral tendonitis. By a November 2012 remand, the Board remanded the remaining claim of entitlement to service connection for joint pain of the ankles and elbows, including as due to an undiagnosed illness. By a March 2013 rating decision, the AMC granted service connection for left ankle myofascial syndrome. Therefore, as reflected on the title page, the remaining claims consist of entitlement to service connection for right ankle myofascial syndrome and bilateral elbow myofascial syndrome, each claimed as joint pain, and each including as due to an undiagnosed illness. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran's right ankle myofascial syndrome is not etiologically related to his period of active service and is not an undiagnosed illness. 2. The most probative evidence of record demonstrates that the Veteran's bilateral elbow myofascial syndrome is not causally or etiologically related to his period of active service and is not an undiagnosed illness. CONCLUSIONS OF LAW 1. Right ankle myofascial syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1110, 1117, 1131, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.6, 3.102, 3.159, 3.303, 3.310, 3.317 (2012). 2. Bilateral elbow myofascial syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1110, 1117, 1154(a), 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.6, 3.102, 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2011); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for service connection, therefore, VA is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA issued a VCAA notice letter, dated in March 2007, from the agency of original jurisdiction (AOJ) to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claims and the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence, and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. The Board notes here that the Veteran's original claims file has been lost since July 2011 and that original adjudications and statements, including those made at the Veteran's September 2004 informal conference with a Decision Review Officer (DRO), as well as portions of his service records are not available; despite attempts by the RO to obtain this evidence. According to correspondence associated with the Veteran's claims file, repeated attempts to locate the Veteran's claims file, and the relevant service treatment records therein have proven futile, and no additional records were found or are to be had. By an August 2011 letter, the Veteran was informed of the loss and requested to supplement the record with any relevant evidence, specifically including any copies of his service treatment records in his possession. When, as here, at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this regard, the January 2004 rating decision, cited in the December 2006 Board decision of record, is not available. Thus, the Board is unable to determine if the Veteran received adequate VCAA notice prior to the initial unfavorable decision. Pelegrini, 18 Vet. App. 112. However, the United States Court of Appeals for the Federal Circuit has held that VA could cure a timing problem by readjudicating the claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a Statement of the Case could constitute a readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the March 2007 VCAA letter was issued, the Veteran's claims were readjudicated in October 2011 Supplemental Statement of the Case. Therefore, any defect with respect to the timing of the VCAA notice has been cured and the Board finds that VA has fully complied with its duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The record shows that the Veteran has been examined by VA in connection with his claims, most recently in June 2012. The June 2012 medical opinions were supplemented in February 2013. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal, as such considered all of the pertinent and available evidence of record, to include the statements of the Veteran, and provided a complete rationale. Considering that the Veteran's claims file has been lost since July 2011, the recreated file contains the Veteran's available reports of VA post-service treatment and examinations, as well as prior rating decisions and Board decisions which include some references to his service treatment records and statements made during the course of the appeal. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the treatment records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Additionally, the Board finds there has been substantial compliance with its November 2012 remand directives. The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained additional adequate VA medical opinions and later issued a Supplemental Statement of the Case in March 2013. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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. See 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the present appeal, the Veteran's disabilities, diagnosed as right ankle and bilateral elbow myofascial syndrome and specifically found not to include radiographic evidence of arthritis, have not been diagnosed as disabilities for which service connection may be granted on a presumptive basis. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf Veteran with a qualifying chronic disability that became manifest: during service on active duty in the Armed Forces 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 by history, physical, examination, or laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a); 76 Fed. Reg. 81834-81836 (Dec. 29, 2011). The term "Persian Gulf Veteran" means 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(d)(1). A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines by regulations to be service-connected. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Signs or symptoms that may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). On July 6, 2001, the Secretary of VA, under the relevant statutory authorities, determined that, at that time, there was no basis for establishing a presumption of service connection for any illness suffered by Gulf War Veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines. See 66 Fed. Reg. 35,702-10 (July 6, 2000) and 66 Fed. Reg. 58,784-85 (Nov. 23, 2001). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends he should be entitled to service connection for right ankle and bilateral elbow disorders. In a November 2011 statement, the Veteran reported that his joint pain, his undiagnosed illnesses, came from active service in Desert Storm and the pills, fires, shots, nerve agent gas, and depleted uranium to which he was exposed. VA treatment records dated in October 2003 indicate that the Veteran complained of leg and ankle pains. On VA examination in August 2009, the Veteran reported that he was involved in a motor vehicle accident in 1992, during service, and was struck from the rear. The examiner noted that a progress note, dated the day after the accident, indicates that the Veteran had headaches, without any other discomfort. The examiner provided recitation of additional relevant service treatment records, which were apparently available for his review; however, none of them included complaint, treatment, or diagnosis involving the right ankle or bilateral elbows. He reported that the Veteran's November 1992 service separation physical examination was silent as to the right ankle and bilateral elbows. At the time of the August 2009 VA examination, the Veteran's right ankle and bilateral elbows were not examined and there were no diagnoses or medical nexus opinions rendered. On VA examination in September 2011, for a neurological condition no longer on appeal, the examiner noted that the AMC reported that the Veteran was treated for ankle complaints subsequent to his in-service motor vehicle accident. However the Board notes here that the VA examiner, in August 2009, specifically discussed the in-service left ankle complaints and specially found such records silent for the right ankle. On VA examination in June 2012, the Veteran reported catching and pain in the bilateral elbows since discharge from service, occurring twice per month in the right elbow, and rarely in the left elbow. He reported popping, stiffness, and ankle pain for the past nine or ten years. The Veteran reported that he knew of no specific elbow or right ankle injuries during active service, or since discharge from active service. He was diagnosed with right ankle and bilateral elbow myofascial syndrome. Traumatic or degenerative arthritis of the right ankle or bilateral elbows was not shown in imaging studies. The examiner opined that the Veteran's current right ankle and bilateral myofascial syndrome were less likely related to his active service. He reasoned that while the Veteran's service treatment records were unavailable, the Veteran reported that he knew of no specific right ankle or elbow injuries during active service, or since discharge from active service. He reported that the etiology of the right ankle and bilateral elbow myofascial syndrome was unknown. In February 2013, the VA examiner supplemented the record with additional opinions, subsequent to the Board's remand finding that he had not accounted for the Veteran's prior complaints of ankle or elbow pain during or since service. The examiner reported that he had reviewed the claims file again, and such contains his prior notations as to the Veteran's denial of right ankle or elbow pain during service and his lay statements that his bilateral elbow and right ankle pain began after separation from service. He again provided negative nexus opinions as to the Veteran's right ankle and bilateral elbow myofascial syndrome, reasoning that the Veteran knew of no right ankle or bilateral elbow injuries during active service, and none since discharge from service. He noted that the Veteran's right ankle symptoms did not begin until 10 years after separation from service. He opined that it was more likely that the etiology of the Veteran's right ankle myofascial syndrome was early degenerative disease, secondary to chronic weight-bearing anticipated with age. He explained that the right ankle was a weight-bearing joint, prone to the development of chronic degenerative disease; however, there was no evidence of osteoarthritis found on imaging. He opined that is was more likely that the etiology of the Veteran's bilateral elbow myofascial syndrome was also early degenerative disease. He explained that such did not affect a bony joint, and thus, such did not result in radiological abnormality, and that there was no evidence of osteoarthritis found on imaging. While the Veteran has not asserted such, the examiner also opined that it was less likely that the Veteran's right ankle myofascial syndrome was secondary to his left ankle disability, diagnosed as left ankle myofascial syndrome and degenerative joint disease. He reasoned that the Veteran presented on examination with a normal gait and that medical literature did not support the conclusion that a degenerative joint disease of the ankle can be causative or aggravate myofascial syndrome of the contralateral ankle. Here, the VA medical opinions, provided in June 2012 and supplemented in February 2013, are credible because they are based on a thorough review of the claims file, including the Veteran's lay statements as to onset of his disabilities and available treatment records. The examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question such. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, and asserts that his joint pain is a result of his environmental exposure incurred therein, for initial consideration is whether he is entitled to service connection under 38 C.F.R. § 3.317 for an undiagnosed illness or a medically unexplained chronic multi symptom illness. See 38 C.F.R. § 3.317(a)(1). In this case, however, the evidence of record, specifically, the VA examination dated in June 2012, shows that the Veteran does not have an undiagnosed illness or chronic multi symptom illness manifested by right ankle and bilateral elbow pain, as his pain has been attributed to diagnosed disabilities, right ankle and bilateral elbow myofascial syndrome. Thus, there is no evidence that the Veteran has an undiagnosed illness of medically unexplained chronic multi symptoms illness, as to his right ankle and bilateral elbows, and further consideration of his claim under 38 C.F.R. § 3.317 is not required. The Veteran is competent to report joint pain, and there is no evidence that he is not credible. Jandreau, 492 F.3d 1372, 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, the Board finds that the Veteran is not competent to diagnosis his joint pain as arthritis, or determine that such is an undiagnosed illness or chronic multi symptom illness, or to determine that any right ankle disability is secondary to his service-connected left ankle disability; as such are complex medical questions. There is no evidence that the Veteran has specific knowledge or skill in musculoskeletal disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Kahana, 24 Vet. App. 428. To the extent that the Veteran is competent and credible to report as to continuous symptoms from the time of separation from active service to the present, as discussed above, the Veteran's right ankle and bilateral elbow disabilities have not been diagnosed as disabilities for which service connection may be granted on a presumptive basis and his claims are thus ineligible for such an analysis. Walker, 708 F.3d 1331. In this regard, however, the Board notes that the Veteran has only reported that his right ankle symptoms began nine or ten years prior to his June 2012 VA examination, or in 2002 or 2003; and he reported left elbow symptoms only rarely and right elbow symptoms only intermittently since separation from service. Thus, he has not offered lay statement of right ankle or bilateral elbow continuously from active service to the present. Therefore, the Board places greater probative weight on the objective medical findings, specifically, the June 2012 VA opinions, supplemented in February 2013, that the Veteran's right ankle and bilateral elbow myofascial syndrome are less likely related to active service and more likely related to early degenerative disease. The Board concludes that service connection for right ankle myofascial syndrome must be denied on direct and secondary bases; and service connection for bilateral elbow myofascial syndrome must be denied on a direct basis. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claims. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for right ankle myofascial syndrome, claimed as joint pain, including as due to an undiagnosed illness, is denied. Service connection for bilateral elbow myofascial syndrome, claimed as joint pain, including as due to an undiagnosed illness, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs