Citation Nr: 1317515	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  00-15 241	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1.  Entitlement to service connection for cognitive impairment and memory loss, including as due to undiagnosed illness.

2.  Entitlement to an effective date earlier than June 23, 2006, for a 40 percent rating for fibromyalgia - including considering whether the Veteran is entitled to have her 20 percent evaluation under Diagnostic Code (DC) 8850-5002 for an undiagnosed joint disorder (referring to arthralgias of her hands, hips, ankles, and shoulders) resumed from June 2006 and to be separately evaluated as 40-percent disabled under DC 5025 because of her fibromyalgia from at least that date.

REPRESENTATION

Appellant represented by:	Michael A. Leonard, Attorney

WITNESSES AT HEARING ON APPEAL

The Veteran and her husband

ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran had active military service from November 1990 to November 1994, including a tour in Southwest Asia during Operation Desert Shield/Desert Storm.

This appeal to the Board of Veterans' Appeals (Board) is from an October 1999 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  That decision denied two service-connection claims:  (1) for fatigue (claimed as dizziness, headaches, joint aches/swelling, fatigue/cognitive impairment, memory loss, shortness of breath, muscle fatigue, heart palpitations, nausea and numbness in the hands due to undiagnosed illness); and (2) for narrowing of the 
C6-7 disc space with corresponding anterior osteophytosis of the vertebral bodies (claimed as neck and head pain).

These claims for service connection, however, are not based exclusively on undiagnosed illness and the presumptions these types of claims entail; rather, the Veteran also alleges entitlement to service connection for these conditions on the alternative theory of direct incurrence in service.

To support her claims, she and her husband testified at a hearing at the RO in August 2000 before a local Hearing Officer.  A transcript of the proceeding is of record.

In a July 2002 rating decision, service connection was denied for chronic neck pain, narrowing of C6-C7 disc space.  In addition, service connection was denied for an undiagnosed condition involving arthralgias of the hands, hips, ankles, and shoulders (claimed as joint pains) and an undiagnosed condition involving headaches, cognitive complaints, memory loss, shortness of breath, heart palpitations, fatigue, nausea and numbness of the hands.  That rating decision, however, granted service connection for undiagnosed illness involving vertigo (claimed as dizziness and tinnitus), retroactively effective from November 1997.

In November 2004 the Board remanded both claims back to the RO via the Appeals Management Center (AMC) to comply with the notice-and-duty-to-assist requirements of the Veterans Claims Assistance Act (VCAA). The Board also instructed the AMC to send the Veteran a statement of the case (SOC) concerning her claim for service connection for narrowing of the C6-7 disc space with corresponding anterior osteophytosis of the vertebral bodies.  Manlincon v. West, 12 Vet. App. 238 (1999).  That SOC was issued in May 2006, and in response she submitted a substantive appeal (VA Form 9) in June 2006 to complete the steps required to perfect her appeal of this claim to the Board.  See 38 C.F.R. § 20.200.

Also, a May 2004 rating decision by the RO in Boston, when it had jurisdiction, denied additional claims for service connection for irritable bowel syndrome (IBS) and a skin disorder.  A June 2004 RO letter informed the Veteran of that decision and of her procedural and appellate rights.  And in response she submitted a timely Notice of Disagreement (NOD) in May 2005 to the RO in Togus.  But just as before concerning the claim for her cervical spine disorder, the RO did not then send her an SOC addressing these additional issues.  See 38 C.F.R. §§ 19.26, 19.29 (2006).  So, pursuant to a November 2004 remand, an SOC concerning these claims was issued in May 2006, and she responded by perfecting her appeal of these claims by submitting a timely substantive appeal (VA Form 9).

In November 2006, she submitted private medical evidence of her diagnosis of fibromyalgia, and the report indicates her treating physician had suggested this condition was an infection she may have contracted in Saudi Arabia.  While fibromyalgia, i.e., muscle pain, may be the subject of service connection as a medically unexplained chronic multi-symptom illness - as evidenced by her claim for unexplained muscle fatigue, see 38 C.F.R. § 3.317(a)(2)(B), the Board deems her statement and accompanying medical evidence as an additional claim for service connection for this condition on a direct-incurrence basis as well.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining whether service connection is warranted, all potential theories of entitlement - direct, presumptive and secondary - must be considered).

In a May 2007 decision, the Board denied the claim for service connection for fatigue, dizziness, headaches, cognitive impairment, memory loss, muscle fatigue, shortness of breath, heart palpitations, nausea, and numbness in the hands due to undiagnosed illness.  The Board noted that one of the symptoms listed involved dizziness.  However, since this symptom then recently had been attributed to a known diagnosis of vertigo, for which service connection had been established in the RO's July 2002 decision, that part of the Veteran's claim was no longer before the Board.  And since she had not separately appealed either the initial rating or effective date assigned for her vertigo, that claim was not at issue before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating she has to separately appeal these "downstream" issues).  The Board also remanded her claim for service connection for degenerative changes of the 6th and 7th cervical disc spaces with anterior osteophytosis of the vertebral bodies for additional evidentiary development.

In addition to those two claims, the Veteran had filed a timely NOD in response to a May 2004 RO decision denying other claims for service connection for IBS and a skin disorder.  So in that May 2007 decision and remand, the Board therefore instructed the AMC to send her an SOC addressing these other claims.  See Manlincon, supra.

Thereafter, in a December 2008 rating decision, the RO granted service connection for IBS, assigning an initial 10 percent rating retroactively effective from June 2, 2003.  Since, however, the Veteran did not in response separately appeal either that initial rating or effective date assigned for her IBS, that claim was no longer before the Board.  See Grantham, supra.  The RO, however, continued to deny her claim for service connection for a skin disorder in an SOC issued in December 2008.  And since she responded by filing a timely substantive appeal, VA Form 9, later in December 2008, the Board gained jurisdiction to consider this additional claim.  See 38 C.F.R. § 20.200.


Meanwhile, the Veteran had appealed the Board's May 2007 denial of her claim for service connection for fatigue, dizziness, headaches, cognitive impairment, memory loss, muscle fatigue, shortness of breath, heart palpitations, nausea, and numbness in her hands due to undiagnosed illness to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).  In an April 2008 Order, granting a Joint Motion, the Court partially vacated the Board's decision - to the extent it had denied this claim, and remanded this claim to the Board for further development and readjudication in compliance with directives specified.  And to comply with the Court's Order, the Board in turn remanded this claim to the RO via the AMC.  Although not vacated by the Court - since there had not been a final adjudication by the Board - the Board also remanded the claim for service connection for a skin disorder due to undiagnosed illness for additional evidentiary development.

In a January 2009 rating decision, the RO granted an increased, 40 percent, rating for the service-connected fibromyalgia, retroactively effective from June 26, 2006, and severed entitlement to service connection for an undiagnosed condition characterized by arthralgias of the hands, hips, ankles, and shoulders, which was rated as 20-percent disabling.  The Veteran filed a timely NOD, in response, alleging she was entitled to an earlier effective date for the grant of the 40 percent rating for her fibromyalgia; she also contested the propriety of the severance of service connection for an undiagnosed condition characterized by arthralgias of her hands, hips, ankles, and shoulders.  In a May 2010 deferred rating decision, the RO rejected the NOD regarding the propriety of the severance of service connection.  She was issued an SOC in February 2011.  In that SOC, the RO withdrew the May 2010 deferred rating decision and denied an earlier effective date for the assignment of the 40 percent rating for the fibromyalgia.  The RO also determined it was appropriate to have severed service connection for the undiagnosed condition characterized by arthralgias of the Veteran's hands, hips, ankles, and shoulders, which was rated as 20-percent disabling, and for an increased rating for her fibromyalgia.  Her attorney filed a timely substantive appeal, VA Form 9, later in February 2011 noting the Veteran was continuing to appeal for an earlier effective date regarding the fibromyalgia and was continuing to contest the propriety of the severance of service connection for the other symptoms mentioned.

The Board has jurisdiction to consider these earlier effective date and service connection severance claims.  See 38 C.F.R. § 20.200-02.

Also, in February 2009, the Board affirmed the denial of service connection for degenerative changes of the 6th and 7th cervical disc spaces with anterior osteophytosis of the vertebral bodies, and the Veteran appealed to the Court.  Pursuant to an April 2008 Order, granting a Joint Motion, the Board remanded the Veteran's claim for service connection for fatigue, dizziness, headaches, cognitive impairment, memory loss, muscle fatigue, shortness of breath, heart palpitations, and numbness in the hands due to undiagnosed illness, as well as her claim for service connection for a skin disorder due to undiagnosed illness.  The Board noted that two of the symptoms listed in her claim involved nausea and dizziness.  However, since nausea then recently had been attributed to a known diagnosis of IBS, for which service connection had been established in the RO's December 2008 decision, this part of the Veteran's claim was no longer before the Board.  See Grantham, supra.  Similarly, her dizziness as mentioned had been attributed to her known diagnosis of vertigo, for which service connection had been established in the RO's July 2002 decision, and in effect since November 1997 this part of the claim also was no longer before the Board.  See id.  In October 2009, the RO granted a total disability rating based on individual unemployability (TDIU), retroactively effective from February 2009.

In December 2009, during the pendency of her appeal to the Court, her attorney and VA's Office of General Counsel - representing the Secretary, filed a Joint Motion asking the Court to partially vacate the Board's decision to the extent it had denied this claim for service connection for cervical spine disability.  The parties also requested that the Court remand this claim for readjudication in compliance with directives specified.  In January 2010, the Court issued an Order granting the Joint Motion for Partial Remand and returned the case to the Board.  In an April 2010 decision, the Board again denied the cervical spine disability claim.


But in an April 2012 decision the Board awarded an effective date of November 13, 1994, for the grant of service connection for fibromyalgia, which was claimed as fatigue, muscle fatigue, and headaches.  That April 2012 Board decision also granted a slightly earlier effective date of June 23, 2006 (so slightly before the then existing effective date of June 26, 2006) for the assignment of a 40 percent rating for the fibromyalgia, initially claimed as fatigue, muscle fatigue, and headaches.  That decision also, however, denied entitlement to service connection for shortness of breath, heart palpitations, and a skin disorder - including as due to undiagnosed illness - but instead remanded the remaining issues of entitlement to service connection for cognitive impairment and memory loss - also including as due to undiagnosed illness - and for an effective date earlier than June 23, 2006, for the 40 percent rating for the fibromyalgia.  As well, the Board remanded the issues of entitlement to service connection for numbness in the hands - including for clarifying comment concerning whether the numbness is associated with the fibromyalgia - and to determine whether the severance of service connection for an undiagnosed condition characterized by arthralgias of the Veteran's hands, hips, ankles, and shoulders (claimed as joint pains), as of June 2006, was warranted in light of statutes and regulations, Court precedents, and precedent opinions of VA's General Counsel that were cited.

In a January 2013 rating decision since issued, the RO granted service connection for numbness of the hands as a manifestation of the fibromyalgia, retroactively effective as of November 24, 1997, and included it in the rating for the fibromyalgia, so as part and parcel of the rating for this disability.  The RO also restored service connection for the arthralgias of the hands, hips, ankles, and shoulders (formerly rated as undiagnosed illness) effective June 23, 2006, and included it as well in the 40 percent rating for the fibromyalgia.  Since numbness of the hands was attributed to the known, as opposed to unknown, diagnosis of fibromyalgia, and service connection resultantly granted in the RO's January 2013 decision, that part of the Veteran's claim is no longer in dispute.  Likewise, since reinstated, albeit only as of June 23, 2006, the issue of whether 

service connection should have been severed for an undiagnosed condition characterized by arthralgias of her hands, hips, ankles, and shoulders is no longer in dispute.

But again even in his most recent March 2013 statement since submitted, the Veteran's attorney argues that the Veteran is entitled to have her 20 percent evaluation under Diagnostic Code (DC) 8850-5002 for the undiagnosed joint disorder (referring to the arthralgias of her hands, hips, ankles, and shoulders) resumed from June 2006 and to be evaluated as 40-percent disabled under DC 5025 because of her fibromyalgia from at least that date.  He therefore is continuing to maintain that separate ratings, rather than a combined or collective rating, are warranted for the arthralgia and fibromalgia inasmuch as the former is joint pain whereas the latter is muscle pain, so providing this additional compensation will not violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14.  See also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).


FINDINGS OF FACT

1.  The preponderance of the competent and credible, so probative, medical and other evidence of record indicates there are no objective clinical indications of cognitive impairment and memory loss attributable to the Veteran's military service, and she has not experienced related symptoms that alternatively are shown to be due to or associated with undiagnosed illnesses.

2.  On June 23, 2006, and not before, it became factually ascertainable that her fibromyalgia warranted a 40 percent disability rating. 

3.  Prior to June 23, 2006, the evidence indicates her fibromyalgia was episodic but present more than one-third of the time.  



CONCLUSIONS OF LAW

1.  Her cognitive impairment and memory loss were not incurred in or aggravated by her military service and may not be presumed to have been incurred in service, including the result of undiagnosed illnesses.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2012).

2.  And the criteria have not been met for an effective date prior to June 23, 2006, for her 40 percent rating for her fibromyalgia.  38 U.S.C.A. §§ 5101(a), 5110(a), 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.151(a), 3.155(a), 3.317, 3.400, 19.32, 20.200, 20.302(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

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

Upon receipt of a complete or substantially complete application, proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).  For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the so-called "fourth" (4) requirement that VA also request that a claimant submit any evidence in his or her personal possession that might tend to substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability, i.e., disability rating; and (5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So, when the claim is for service connection, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

If the claim is not for service connection, rather, for a higher rating for a disability that was determined service connected in a prior adjudication, then the VCAA requires VA to notify the claimant that, to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him or her of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life.  Vazquez-Flores, 580 F.3d at 1278.


Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

This appeal dates back several years - indeed, to October 1999 - so before the VCAA even came to exist since not enacted until November 2000, a little more than a year later.  In Pelegrini, the Court clarified that in this situation VA does not have to vitiate the finality of any prior decision and start the whole adjudicatory process anew, as if any earlier decision was not made.  In other words, VA cannot go back in time.  Rather, VA need only provide the required VCAA notice and then readjudicate the claim, including as mentioned in an SOC or SSOC, such that the intended purpose of the notice is still served and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  A VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his or her claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


In this case and pursuant to the Board's November 2004 remand, the RO sent the Veteran a letter in March 2005 providing her notice regarding what information and evidence was needed to substantiate her claim for service connection, as well as what information and evidence she needed to submit, what information and evidence would be obtained by VA for her, and the need for her to advise VA of and to submit any further evidence that was relevant to her claim.  Other records show the Appeals Management Center (AMC) recertified her appeal to the Board after the Court had issued the Dingess/Hartman decision, so she has not been informed of how "downstream" disability ratings and effective dates are assigned and the type of evidence and information impacting those downstream determinations.  The subsequent September 2006 SSOC did not address these additional elements of her claim.  But this is inconsequential and, therefore, at most nonprejudicial, i.e., harmless error regarding her claim for cognitive impairment and memory loss because the Board is denying her underlying claim for service connection, so the downstream disability rating and effective date elements of this claim are ultimately moot.  38 C.F.R. § 20.1102.  She was in fact given such downstream notice in December 2008 regarding her claims for fatigue, muscle fatigue, and headaches as symptoms of her fibromyalgia, and after the notice was provided the claim was readjudicated and an April 2009 SSOC that was provided to her.  See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (an SSOC complying with all applicable due process and notification requirements constitutes a readjudication decision).

As for the additional duty VA has to assist her in the development of her claims, this duty includes assistance in the procurement of service treatment records and other pertinent records of her evaluation and treatment since service and providing an examination when needed to fairly decide the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA also satisfied this additional obligation.

The RO and AMC obtained her service treatment records (STRs) and post-service VA and private treatment records.


VA also afforded her a general medical examination in May 2011, a mental disorders examination in May 2011, to include a December 2011 addendum opinion, an October 2012 general medical examination, and finally a December 2012 neuropsychological examination, to determine whether her claimed disabilities at issue are attributable to her military service or indications of undiagnosed illnesses the result of her service as she is alleging and, if determined, to be related to attributable to her service, to assess and reassess their severity.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  And in providing those VA compensation examinations for medical comment, and receiving opinion on these issues, there was compliance with the February 2009 remand directive in further developing these claims.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with remand directives, and that the Board itself commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing the alternative notion of "substantial," if not "exact," compliance).

Regarding her claim for an earlier effective date, VA's General Counsel has held that no additional VCAA notice is required in this circumstance for such a "downstream" issue, and that a Court decision suggesting otherwise is not binding precedent.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department.  38 U.S.C.A. § 7104(c).  Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And since the RO issued an SOC in April 2009, addressing the "downstream" earlier-effective-date claim, which included citations to the applicable statutes and regulations, no further notice is required.  See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003).  Additionally, as previously noted, her fibromyalgia claim was granted an earlier effective date of November 13, 1994, in the April 2012 Board decision.  
Hence, no further notice or assistance to her is required with her claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II.  Factual Background

The Veteran began serving on active duty in November 1990.  Her  STRs contain a February 1993 entry indicating she complained of blurred vision because something had flown into her left eye that morning.  In the section related to her personal medical history, she denied any history of headaches.  In December 1993, she presented with complaints of having vomited five times since the previous evening and having a low-grade fever.  The examiner diagnosed viral syndrome.  A March 1994 report of periodic medical examination reflects that all areas were assessed as normal.  The March 1994 electrocardiogram (EKG/ECG) during that examination also was normal.  She was deemed physically fit for worldwide duty.  The primary notation was that she exceeded her maximum allowable weight by 19 pounds.  Her military service ended in November 1994.

During a December 1994 VA general medical examination, so the following month, she told the examiner that while in Saudi Arabia she had developed pain in her hands and swelling and redness of her hands.  Since that time she reported fleeting joint pains in other areas - including in her hips, ankles, and shoulders.  She reported daily low back pain that sometimes extended into her buttocks and legs.  While she reported experiencing fleeting joint pains in the hands, ankles, shoulders, and left hip, at the time of the examination only her hip and low back were causing her pain.  The report reflected no tenderness or edema in her hands.  She had good posterior tibial and dorsalis pedis pulses.  Examination of her neurological system also revealed no abnormalities.  Her cranial nerves and optic fundi were within normal limits.


While residing in Italy, the Veteran had another examination in January 1999, which was conducted by an Air Force physician at the U.S Air Force Medical Facility, Aviano Air Base, Italy.  She indicated that she had experienced numbness in her hands.  She has since asserted that the examination was inadequate because the local examiners were insufficiently experienced to conduct examinations related to the Persian Gulf War.  Nonetheless, the Board sees that the objective clinical findings at that examination were similar to those of the 1994 VA examination.  So there is a sense of consistency in these results, thereby suggesting they are indeed truly indicative of her medical status at the time.  The examiner also noted there was no decrease in the Veteran's sensory or motor function of her extremities.  The diagnoses included history of fatigue.

The claims file also reflects a June 1999 note of an Italian physician to the effect that test results had revealed no evidence of systemic connectivitis or primary chronic inflammatory rheumatic disease.  He added that, while the Veteran and "physical-hematochemical objectivity" suggested fibrositis at the ileo-lumbar ligaments, she needed to lose weight.  She was weighing about 266 pounds.

In her written submissions after that 1999 examination, and during her hearing, the Veteran asserted that examination was inadequate because the military examiner had never before conducted a VA Compensation and Pension examination and that he did not know what to look for insofar as illness related to the Persian Gulf War.  Her representative also conceded during the hearing that it was difficult to distinguish between the Veteran's symptoms deemed related to her service-connected low back disorder and those she instead attributed to undiagnosed Persian Gulf War illness.  See Transcript, pp. 7, 9.

The Veteran said she shook her hands to relieve the numbness, which she attributed to her head and neck problems (cervical radiculopathy?).  She told the Hearing Officer that her pinkies were a little numb as she testified at the hearing.  She described her fatigue and dizziness as occurring in cycles along with her cognitive disruptions.  They seemed to occur in linear environments, like whenever she entered a supermarket.  

The October 2000 fee-basis neurological examination report reflects that the examiner (Dr. A.) reviewed the claims file.  The Veteran told the examiner that she had intermittent paresthesias in her upper extremities, as well as headaches and short-term memory loss.  The Veteran also described the numbness in her hands as occurring in the right or left fourth or fifth fingers and hypothenar region, and occasionally extending up into her elbow.  They tended to occur in the afternoon, lasted a couple of hours, and were gone upon awakening the next morning.  At the time of the examination, she was employed full time as a secretary at Malmstrom Air Force Base, MT.  

The examiner noted that, while detailed mental status testing was not performed, the Veteran's cognitive function seemed quite good.  She was alert, very pleasant and cooperative, and fairly obese.  The cranial nerves were normal and visual fields were intact to confrontation.  Fundoscopy was unremarkable.  Corneal reflexes were brisk and symmetrical, facial sensation was intact, and pterygoid and masseter functions were symmetrical.  There did not appear to be any weakness of the facial muscles, and there was no facial asymmetry of consequence.  Hearing, as tested by lightly rubbed fingers at 8 to 10 centimeters, was intact.  Tongue protruded in the midline.  Motor examination of upper and lower extremities was unremarkable with respect to muscle tone, and there were no involuntary movements.  Deep tendon reflexes were normally-active and symmetrical.  No pathological reflexes, including Babinski's sign, were elicited.  Sensory examination was unremarkable.

The examiner diagnosed the Veteran with intermittent paresthesias affecting the fourth and fifth fingers.  The examiner hypothesized that the Veteran experienced intermittent compression of the ulnar nerves at the elbows, and that she might have ulnar neuropathies.  In summarizing his findings, Dr. A. indicated that none of the Veteran's symptoms were attributable to her service in the Persian Gulf War Theater.  Although the electromyogram (EMG) he conducted did not confirm his diagnosis of ulnar nerve pathology, as he interpreted it as a normal study, he nonetheless believed the Veteran's hand numbness was secondary to compression of the ulnar nerves.

A VA Persian Gulf war examination was conducted in May 2002.  She again reported her symptoms as set forth above.  Objective physical evaluation revealed that her upper extremities range of motion was "okay."  She was diagnosed with history of musculoskeletal joint pain, and memory loss both short and long term.  The diagnoses were based solely on her history, and consults were recommended.

A neuropsychology consult was conducted in June 2002.  She again reported her symptoms as set forth above, to include difficulties with concentration and memory.  It was noted the Veteran completed a bachelor's degree in psychology with a 3.6 grade point average as well as a master's degree in adult education in 1999.  Upon testing it was noted that she had very mild difficulties with sustained attention, but her general mental processing speed was in the average range.  Her overall learning ability was in the average range.  Her retention of material was in the low average, but improved with cueing and recognition prompting suggesting mild organization and retrieval deficits rather than forgetting or true memory deficit.  Remote memory for factual information learned gradually over time was in the high average range.  The examiner determined that her performance on this examination was indicative of relatively mild and variable difficulties with attention, specifically mental organization and rapid mental retrieval.  With regard to memory, she was able to learn and retain.  None of her difficulties were consistent enough or severe enough to warrant any diagnosis of a cognitive disorder.  The examiner further noted that the difficulties may have been attributable to her level of pain or pain medications and likely did not reflect any significant organic pathology.

The Veteran was again examined in September 2005 while her case was on remand. The neurological examination report reflects that she complained of forgetfulness, but there was no diagnosis of a cognitive disorder.  The examiner pointed out the Veteran could identify Calvin Coolidge, and she subtracted 7 from 100 quickly.  Two-part commands were done rapidly. Physical examination revealed she was able to walk on her toes and heels and jog.  Romberg was normal, as were her pupils, discs, rotations, and fields.  There were no bruits in her neck or over the scalp or over the orbits.  The examiner specifically noted that she dressed and undressed with extreme alacrity considering her weight.  Muscle strengths were all normal, Babinski signs were absent, traced figures were normal in four extremities, and joint sense was normal in the toes.  He diagnosed headaches for 12 years, neurologically negative except for obesity, migraine variant.

The Board notes that, in her response to the examination report, the Veteran expressed concern with the examiner's comment on how rapidly she dressed and undressed.  But she should keep in mind the examination was of her neurological system.  The Board reads the examiner's comment in the context that her speed in dressing and undressing suggested no deficits in her movements or coordination, and the Board is confident that the examiner meant it in that context.

She had another VA examination in June 2006 by the same examiner that had conducted the September 2005 heart examination.  The examination was to determine whether she had fibromyalgia, but the physical findings and comments are relevant to this appeal.  The examination report states the Veteran told the examiner that she had generalized aching, primarily in her hands and feet pretty much all the time.  During flare-ups her hands cramp and she cannot use them. She estimated that she had lost 30 days from work due to her problems, but most of the lost days were related to her chemotherapy and radiation therapy for her lymphoma.  She was unable to tell the examiner what seemed to precipitate or trigger her symptoms or what seem to ease them.  She said she had problems with her hands, arms, and back, and pains in some of her muscles.  Physical examination revealed some tenderness to direct palpation in a number of areas.  There was tenderness to direct palpation in the left nuchal area and tenderness at the base of the right shoulder and over the right acromioclavicular joint, but not on the left.  There was no tenderness between the shoulder blades.  There also was tenderness in the spinal areas not the subject of this decision.  Her muscle strength in the involved areas was grossly normal.

The examiner observed that the Veteran's various diagnostic tests have been essentially normal.  He noted that the neurologist previously diagnosed her as having a migraine variant for headaches, and her situational depression was associated with her cancer treatment.  The examiner also noted his review of the claims file indicated the extensive work-up in 2002 for memory loss, and the testing showed no evidence of memory loss.  The Veteran shared essentially the same history as she did at the 2002 work-up, which is that she was not sharp as she once was but it is not a severe impairment.  The examiner observed that the Veteran only noted the numbness in her hands when she had flare-ups in her joints.  The examiner opined that the Veteran manifested sufficient trigger points to meet the criteria for fibromyalgia.  None of the symptoms addressed, the examiner observed, were attributable to an undiagnosed illness. 

In her response to the October 2006 SSOC, the Veteran asserted that the examiner did not accurately record or report the history she provided him at that examination.  She also asserted that she believed the examiner had a personal bias against the concept of an undiagnosed illness.  She apparently based her subjective opinion on her assertion that the examiner began the examination by commenting that he thought they had disposed of her appeal with the September 2005 examination.  In any event, the Board notes that the objective clinical findings at the examination are clear and they are essentially consistent with the prior examinations of record by different examiners.

In a June 2007 statement, A.S. M.D., noted that he had been recently treating the Veteran for fibromyalgia.  He indicated that she had the following symptoms of fibromyalgia:  fatigue, headaches, cognitive difficulties, IBS, rapid and inappropriate fatigue on exercise, widespread pain and soft tissue hypersensitivity, and 14 out of 18 diagnostic tender points.

In an August 2007 statement, the Veteran believed that her symptoms of fatigue, headaches, memory loss, muscle fatigue, are a part of her fibromyalgia.

A VA general medical examination was conducted in July 2009.  The Veteran's claims file was not reviewed by the examiner.  The diagnoses were fibromyalgia, with generalized muscle aches; depression; and bilateral peripheral neuropathy.  


A VA general medical examination was conducted in May 2011.  After a review of the Veteran's claims file, consultation and examination, the examiner opined that the Veteran's fatigue was a general symptom which could be attributed to several diagnosed disorders, a side effect of the Veteran's medication, depression and fibromyalgia.  The Veteran's muscle fatigue was due to her fibromyalgia.  No disequilibrium was found on that examination.  Her headaches could be diagnosed as tension headaches due to her mental health complaints and fibromyalgia.  Her muscle fatigue is due to her fibromyalgia.  There were no abnormalities found on examination or testing consistent with dyspnea, which could be associated with fibromyalgia but there are no records indicating this complaint in service or within one year of separation from service.  The examiner also noted that there was limited/suggested evidence of an association between the fibromyalgia and Persian Gulf service, there was no significant evidence to show that any of the above-diagnosed conditions were associated with Persian Gulf service or undiagnosed illness.  The examiner did not adequately address the Veteran's complaints of numbness in her hands to determine if that was a separate disorder or part of the fibromyalgia.  The examiner excluded the Veteran's cognitive and memory complaints in this conclusion, noting that a separate mental disorders examination was also performed.

The separate mental disorders examination, also in May 2011, noted that previous examinations in June 2002, September 2005, and November 2006 had revealed a negative psychiatric history and negative mental health screenings.  Again in the Veteran's educational history it was noted that she had obtained bachelor's degrees in psychology and criminal justice awarded in 1995 and a master's degree in adult education awarded in 1999.  It was additionally noted that she was then currently taking an anti-depressant that had a side effect of difficulty with concentration.  She was diagnosed with depressive disorder on Axis I.  

An addendum opinion was provided in December 2011 because the entire claims file was not reviewed in conjunction with the May 2011 mental disorders examination.  The examiner noted that neuropsychological testing would need to be performed to determine the specific nature and extent of any possible memory impairments.

A general medical VA addendum opinion was provided in October 2012.  The purpose was to specifically address the etiology of the Veteran's numbness in her hands.  The examiner reviewed the May 2011 examination report and noted there was no definite neuropathy or radiculopathy found in the extremities, so no separate diagnosis was provided.  It was noted paresthesias can be associated with fibromyalgia.  There was no undiagnosed illness found to be associated with the paresthesia.  The October 2012 examiner opined that it was more likely than not that the Veteran's hand numbness was due to her fibromyalgia because other causes of numbness were ruled out by physical examination and/or by labs and it is known that fibromyalgia can produce numbness.  The examiner cited several medical studies supporting that notion. 

A VA neuropsychological examination was conducted in December 2012.  The examiner noted a review of the claims file to include the above-mentioned examinations.  The examiner noted that the Veteran had no psychiatric history until she was diagnosed with depression in approximately 1995.  With regards to neurobehavioral examination it was noted that she was dealing with constant pain which made her irritable.  She exhibited low energy.  She noted her cognitive problems had started while she was in the Persian Gulf War as she had noticed that her attention was poorer.  She further noted even more pronounced memory decline since her chemotherapy in 2005 to 2006.  Test results revealed that she performed normal for her age and education on the MMSE and that initial problem strategizing, overall problem solving, and ability to maintain mental set were normal on the WCST, although mental flexibility was low average.  The examiner noted abnormal performance on the WMT because she performed at less than her full ability.  This was a result usually in line with someone who had major depression.  The examiner determined after testing that the Veteran, clinically, had moderate recurrent major depressive disorder.  The examiner determined that there was no evidence of cognitive impairment or memory loss.  The examiner acknowledged that the current effort scores were too limited to validly test, but relying on memory testing in 2000 and a full neuropsychological evaluation in 2002, which revealed no cognitive or memory problems, a cognitive disorder was not diagnosed.  Rather, it was determined the Veteran had a diagnosis of major depressive disorder.  The examiner further noted the Veteran's successful educational history to support the opinion that there were no permanent cognitive or memory residuals stemming from her Persian Gulf War Service.  According to this VA examiner, if the Veteran had memory or cognitive residuals they would have been present during her previous examinations.

III.  Analysis

A.  Direct and Presumptive Service Connection

The Veteran contends, in part, that she has had cognitive impairment and memory loss continuously since her military service, alleging it has been especially noticeable or prevalent since her Persian Gulf War service.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing she has at some point since the filing of her claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  See also Caluza v. Brown, 7 Vet. App. 498 (1995) and Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).


If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required, however, where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  Id.  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of 
post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the 
post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).  However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.").  And as cognitive impairment and memory loss are not chronic diseases according to § 3.309(a), this notion of continuity of symptomatology since service may not be used to establish the required nexus between these claimed disabilities and the Veteran's military service.  Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether such evidence is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, but also the claimant's demeanor when testifying at a hearing when he/she has testified.  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).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Turning back now to the facts of this particular case.  As mentioned, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent and credible evidence confirming the Veteran has the claimed disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed; without this minimum level of proof, there can be no valid claim).  At the very least, she must establish she has had the claimed condition at some point since the filing of her claim.  Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Here, though, at no time during the pendency of this appeal has the Veteran demonstrated, nor has the evidence shown, that she has ever had an objectively diagnosed disability involving cognitive impairment or memory loss.  Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer  v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997). 

The threshold for receiving a VA compensation examination, however, is lower, as there need only be persistent or recurrent symptoms suggestive of a disability, not necessarily an underlying diagnosis for these symptoms.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  To this end, the May 2012 VA neuropsychological examiner noted that a review of the past medical examinations revealed no evidence of a diagnosis of cognitive impairment or memory loss.

The Veteran's STRs do reflect any complaints of or treatment for any cognitive impairment or memory loss during her service.  And while this, alone, is not determinative of whether she had such issues during her service, it is entirely permissible for the Board to consider this as evidence against this notion.  See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact).  This notwithstanding, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability during service, even when not corroborated by contemporaneous medical evidence such as treatment records (e.g., STRs).  

In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs.  But in cases where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.).  In this circumstance, the Board must make two preliminary findings in order to rely on this negative inference (see Kahana):

(a) First, the Board must find that the STRs appear to be complete, at least in relevant part.  If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence."  See Kahana.  See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).

(b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred.  In making this determination, the Board may be required to consider the limits of its own competence on medical issues.  See Kahana.

The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in 

service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Concerning this determinative issue of causation, the December 2012 VA neuropsychological examiner determined the Veteran did not have cognitive impairment or memory problems or loss that were the result of her military service.  So this VA compensation examiner clearly disassociated any cognitive impairment or memory problems the Veteran had experienced, whenever, even if not then currently, from her military service.  She has not submitted any medical nexus opinion tending to contradict this VA compensation examiner's unfavorable opinion, so the opinion is unrefuted.  While the examiner did note that testing was limited due to the Veteran's inability to fully participate, it was also clarified that her lack of participation was the result of her major depression, which was not then, in turn, determined to be associated with her military service, either directly or presumptively or as secondary to (caused or aggravated by) a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) and (b), 3.384.


Previous examinations in 2000 and 2002 support that examiner's opinion that the Veteran does not have cognitive impairment or memory loss as a result of her active duty service.  According to him, if she had indeed had any cognitive impairment or memory loss problems since service it would have been apparent during those prior examinations.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneously dated evidence has greater probative value than a contrary history as reported by the Veteran long after the fact).  This is especially true when considering those prior examinations were in the course of her earlier evaluation and treatment.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

In her initial application for VA compensation benefits (on VA Form 21-526), which she filed in November 1994 rather immediately upon her discharge from service, she referred to a low back condition and generically to "Persian Gulf Syndrome."  But when subsequently examined for VA compensation purposes in December 1994 in connection with that initial claim, she did not refer to any cognitive impairment or memory loss of any sort as one of the conditions included in her generic claim for "Persian Gulf Syndrome."  Instead, she cited several other unrelated symptoms and illnesses.  Had she in fact been experiencing cognitive impairment and memory loss since her service, especially as a result of or since her service during the Persian Gulf War, then it stands to reason and seems only logical that she would have mentioned this when filing that initial claim, but she clearly did not.  It was not until more recently that she began dating these now claimed disorders back to her military service.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, 
self-interest, malingering, desire for monetary gain, and witness demeanor).

For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in her favor, and this claim resultantly must be denied.  38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B.  Presumptive Service Connection based on Undiagnosed Illness

The exception to the requirement for a diagnosed disability is when the Veteran's claim is instead predicated on the notion that her claimed disability is a symptom or manifestation of an undiagnosed illness or qualifying chronic disability.

Service connection may be established for a chronic disability resulting from an undiagnosed illness that became manifested either during active military 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.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

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).  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(d)(2).

There is no question this appellant meets this definition of a Persian Gulf War Veteran, so that much is conceded.


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 of VA 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 and 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.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  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 an 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).

Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, 
non-medical indicators that are capable of independent verification.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.  A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States.  38 C.F.R. § 3.317(a)(2-5).

Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic 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).

Compensation shall not be paid under this section if:  (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c). 

As pertinent here, after an examination and review of the Veteran's claims file, the examiner who conducted the December 2012 neuropsychological examination for compensation purposes opined that there was no evidence of cognitive impairment or memory loss, as such, it is not possible they were manifestations of unknown illness.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).  Thus, any Persian Gulf War theory of entitlement is untenable.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

IV.  Earlier-Effective-Date Claim

As already alluded to, the month she separated from service in November 1994, the Veteran requested service connection for "Persian Gulf Syndrome."

By way of history, a July 2002 rating decision granted service connection for an undiagnosed condition characterized by arthralgias of her hands, hips, ankles, and shoulders(claimed as joint pains) and assigned a 20 percent rating retroactively effective from November 13, 1994, the day after her service had ended when she had returned to life as a civilian.  That decision denied service connection for an undiagnosed condition characterized by headaches, cognitive complaints, shortness of breath, heart palpitations, fatigue, nausea, and numbness of the hands.  She has continuously appealed the denial of that initial claim.

In November 2006 she additionally requested service connection for fibromyalgia.  And in a January 2009 rating decision, the RO granted an increased, 40 percent, rating for her since service-connected fibromyalgia, retroactively effective from June 2006, and severed her entitlement to service connection for an undiagnosed condition characterized by arthralgias of her hands, hips, ankles, and shoulders, effective June 26, 2006.  In an April 2012 Board decision, she was granted service connection for fibromyalgia which was then claimed as fatigue, muscle fatigue, and headaches back to November 13, 1994.  The Board further granted a slightly earlier effective date of June 23, 2006, for the 40 percent evaluation for her fibromyalgia, as that was the date of the examination noting it was factually ascertainable that a 40 percent rating was warranted.

Intertwined with the rating prior to June 23, 2006, were the issues of service connection for hand numbness and severance of a service-connection claim for arthralgias of the hands, hips, ankles, and shoulders, associated with an undiagnosed illness.  Therefore the period prior to June 23, 3006, was remanded for further development to determine if a rating higher than the currently assigned 20 percent was met for the period prior to June 23, 2006.  In a January 2013 rating decision since issued, the RO restored service connection for arthralgias of the hands, hips, ankles, and shoulders (formally rated as an undiagnosed illness), effective June 23, 2006, and granted service connection for numbness of the hands, effective November 24, 1997, the date of claim of the decision appealed.  Both the numbness of the hands and the arthralgias were determined to be part and parcel or manifestations of the fibromyalgia and included in the 40 percent rating for the fibromyalgia, effective June 23, 2006.

The RO's reinstatement of service connection for arthralgias of the hands, hips, ankles, and shoulders apparently was based on the fact that the same symptomatology associated with that rating was associated with the fibromyalgia rating as well.  On the premise of avoiding pyramiding, the RO incorporated the arthralgia rating (previously rated as undiagnosed illness) in the fibromyalgia rating.  Pyramiding, that is, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2012).  While it is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

This is pertinent to the current claim of whether the Veteran is entitled to an earlier effective date for the 40 percent rating for her fibromyalgia because she and her attorney contend that she is entitled to both a 40 percent rating prior to June 23, 2006, for her fibromyalgia claim as well as an additional 20 percent rating for her claim for arthralgias of the hands, hips, ankles, and shoulders (previously claimed as undiagnosed illness), both prior to and since June 23, 2006.  The Board agrees with the RO's assessment that the claim for arthralgias of the hands, hips, ankles, and shoulders (previously claimed as undiagnosed illness), should be redesignated under the claim for fibromyalgia.

The Board has considered the implications of the change in diagnostic codes for this portion of the appeal period and recognizes that any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).  Service connection for the Veteran's disability had remained in effect for more than 10 years and, thus, is protected under 38 U.S.C.A. § 1159.  The Board must first consider whether the June 2006 change in the assignment of the Diagnostic Code used in rating her disability was analogous to severance of a protected disability.


Under 38 U.S.C.A. § 1159:

Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.

It consistently has been found that the protection afforded is to the disability and not the diagnostic code used to rate the disability.  See VAOPGCPREC 13-92 (modifications of the Diagnostic Code did not change the protected status of the disability).  Recognizing instances where the Board has rated a Veteran's disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance.  See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (holding a simple, nonsubstantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating "did not result in a new rating or the severance of the old rating").

In June 2011, both the Veterans Court (CAVC) and the Federal Circuit Court considered the issue of whether severance of a particular diagnostic code was indeed severance of a service-connected disability.  See Murray v. Shinseki, No. 09-0158 (U.S. Vet. App. June 15, 2011), see also Read v. Shinseki, No. 2010-7100 (Fed. Cir. June 22, 2011) .

In Murray, the Veteran had initially been assigned a compensable rating for a left knee disability under the rating code for instability for more than 10 years.  Subsequently, the RO changed the rating code to more accurately reflect the limitation of motion related to the Veteran's arthritis.  The CAVC determined that because the instability code did not involve arthritis symptoms, the protected disability had been impermissibly severed despite the application of a new Diagnostic Code.

However, days after the Murray decision, the Federal Circuit Court addressed a similar issue in Read.  In Read, the Veteran had been service connected for residuals of a gunshot wound and a compensable rating had been assigned regarding a particular muscle group.  Over 10 years after the initial assignment of the rating, a VA examiner determined that, in fact, a different muscle group had been affected by the gunshot wound and not the muscle group to which the initial diagnostic code applied.  Notably, when the disability was initially granted service connection, no diagnosis of a particular muscle group had been identified.  Following the VA examiner's report, the Diagnostic Code was changed to reflect the affected muscle group.  The Veteran appealed and the Board denied the appeal finding that the diagnostic codes contained the same criteria and that because the disability still enjoyed the same rating, there had been no harm in changing the Diagnostic Code.  The CAVC affirmed the Board and the Veteran appealed to the Federal Circuit.

The Federal Circuit identified the issue on appeal as whether the service connection for a disability protected under 38 U.S.C.A. § 1159 is severed when the VA assigns to an injury a different Diagnostic Code than originally noted.  In reaching its conclusion that the protected disability is not severed, the Federal Circuit considered the rationale behind 38 U.S.C.A. § 1159, as well as other relevant statutory definitions, and determined that 38 U.S.C.A. § 1159 only protects service connection of the disability, not the specific Diagnostic Code.  Upon review of the definition of service connection under 38 U.S.C.A. § 101 (16), the Federal Circuit determined that "to sever service connection is to conclude that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise."  Id. at p.p. 7-8.  The Federal Circuit noted that § 1159 "does not protect the fact of a disability, and therefore, the change in the determination of the applicable Diagnostic Code likewise is unprotected."  Id., at p. 8.  Specifically regarding the facts in Read, the Federal Circuit agreed with the government's argument that because the same disability was involved in both the initial disability determination and the later specific identification of the particular muscle group that was affected, the change in the Diagnostic Code did not sever anything.  His disability was still service connected even though the Diagnostic Code may have changed.  Id., at p. 9.

Moreover, the Federal Circuit found that the purpose of 38 U.S.C.A. § 1159 was to "protect Veterans with long-standing determinations of service connection from suddenly having the determination of service connection stripped."  Id., at p. 10.

The Federal Circuit noted that "there is nothing in the legislative history that manifests any concern about the situs of the disability or the Diagnostic Code associated with it, and expanding the protection of § 1159 to such situs determinations or Diagnostic Codes does nothing to advance Congress' intention."  Id., citing VAOPGCPREC 50-91 (Mar. 29, 1991) (precedential opinion of the VA General Counsel) (noting that it would be "beyond the legislative purpose" to allow a Veteran to be service connected for two disabilities because of the protection of the statute where only one is shown by the medical evidence).  Further, the Federal Circuit noted that VA had not changed its determination that the Veteran's gunshot wound was incurred in connection with his military service, or that he was entitled to compensation for the disability he incurred as a result.  Thus, the Federal Circuit found that "to determine that the change of the situs of the disability - or the Diagnostic Code associated with it - was a severance of one service-connected disability and an establishment of another, where the cause of the disability and the resultant functional impairment are the same, would ill-serve the purpose of the statute."

The Federal Circuit also noted that the issue of reassignment of a diagnostic code was not a novel concept.  Referencing Gifford v. Brown, 6 Vet. App. 269 (1994), the CAVC was noted to have held that the correction of the situs of the injury was not a violation of § 1159 because the Veteran remained service connected for the disability at issue.

Thus, based on the foregoing, the Federal Circuit held that service connection for a "disability" is not severed simply because the situs of a disability - or the Diagnostic Code associated with it - is corrected to more accurately determine the benefit to which a Veteran may be entitled for a service-connected disability.


The Board recognizes a distinction between Murray and Read in that, in Murray, the diagnostic codes for arthritis and limitation of motion do not evaluate the same symptoms as the Diagnostic Code for instability.  See VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997) and VAOGCPREC 9-98 (August 14, 1998).  Whereas in situations such as Read, the differing Diagnostic Codes regarding muscle groups do consider the same symptoms.  However, to narrowly construe Read as only applying to muscle groups or similar Diagnostic Code groupings that only consider exactly the same symptoms would fall short of the holding in Read.  Again, in Read, the Federal Circuit considered the broader picture of § 1159 and carefully examined exactly what is protected - service connection for the disability, not the specific Diagnostic Code.  Upon careful consideration, the Federal Circuit determined that the specific Diagnostic Code was not protected even though service connection for the disability was protected.

With this distinction in mind, the Veteran and her attorney essentially argue that the change in diagnostic codes in this case constituted an impermissible severance because it is possible for a Veteran to have separate and distinct manifestations from the same disability that would permit rating under several diagnostic codes; as noted, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2011) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).  Specifically, they argue that the initial grant of service connection related to arthralgias, a joint condition, and service connection was subsequently granted for fibromyalgia, a muscle condition.  Thus they maintain that the Veteran is entitled to a 40 percent rating for her fibromyalgia from November 13, 1994, as well as an additional 20 percent rating for her arthralgias.

 "Arthralgia is defined as pain in a joint,"  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); and fibromyalgia-"fibro is a prefix denoting relationship to fibers" and "myalgia" is "muscular pain."  Hoag v. Brown, 4 Vet. App. 209, 211 (1993).  However, specific to VA purposes, Diagnostic Code 5025 defines fibromyalgia as including widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.  A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.  The code for fibromyalgia includes skeletal pain, not just muscular pain.  As such, the Board finds that to allow separate ratings for the Veteran's fibromyalgia and arthralgias would indeed amount to pyramiding.  As such, the Board finds that the redesignation of the rating code in this instance is not improper, even though the previous designation had been in place more than 10 years, as the disability and the symptoms associated with it remain protected.

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  In a claim for an increased rating, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (2).  Thus, the two determinative issues in any claim of entitlement to an earlier effective date for increased compensation are:  (1) the date of the claim and (2) the date of entitlement to an increase.

It follows that three possible effective dates may be assigned depending on the facts of the particular case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); or

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Harper v. Brown, 10 Vet App 125, 126 (1997).

In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).

The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to:  (1) evidence that an increase in disability had occurred and (2) to the receipt of an application within one year after that increase in disability.  The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded.  38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter.  See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability).

VA must review all the evidence of record, not just evidence not previously considered.  The Court has noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase.  The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase.  Hazan v. Gober, 10 Vet. App. 511 (1997).

With all of this in mind, the Board turns to the first determinative issue - the date of receipt of the Veteran's claim.  A review of the file shows that her claim for fibromyalgia was received in November 2006.  As the previous claim for arthralgia of the hands, hips, ankles, and shoulders was received on November 13, 1994, it is necessary to determine when she met the requirements for the 40 percent rating, including considering whether this was during the one year immediately preceding her claim.  A review of the record indicates she did not meet the requirements for a 40 percent rating until the report of her June 23, 2006 VA compensation examination.

Again, she is currently rated under Diagnostic Code 5025; however, she was previously rated under Diagnostic Code 8850-5002.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  In this instance the hyphenated code indicated she was rated for rheumatoid arthritis as an active process and as part of an undiagnosed illness.

Diagnostic Code 5025 as mentioned defines fibromyalgia as including widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms.  A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities.  

Under Diagnostic Code 5025, a rating of 10 percent is warranted for fibromyalgia symptoms that require continuous medication for control.  A 20 percent rating is appropriate for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time.  The highest rating of 40 percent rating is warranted for symptoms that are constant, or nearly so, and refractory to therapy.  See 38 C.F.R. § 4.71a, Diagnostic Code 5025.

So the 40 percent rating is the maximum schedular rating permissible under the applicable Diagnostic Code.

Diagnostic Code 5002, for rheumatoid arthritis, as an active process warrants a 20 percent evaluation for one or two exacerbations a year in a well-established diagnosis, a 40 percent evaluation for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbation occurring three or more times a year, a 60 percent evaluation where the evidence demonstrates symptomatology less than the criteria for 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbation occurring four or more times a year or a lesser number over prolonged periods, and a 100 percent evaluation for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5017 (2011).

Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved.  Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002, provided that limitation of motion is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  An associated note provides that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis.  Instead, the higher evaluation is to be assigned.

The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for musculoskeletal disabilities.  Rating personnel must consider functional loss and clearly explain the impact of pain on the disability.  When an evaluation of a disability is at least partly based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45 and 4.59.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  These other factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Moreover, this directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis as defined by § 4.59.  See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  And although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011) (emphasis added).  Rather, pain on motion can only be characterized as limiting pain constituting functional loss when it affects some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance."  Id., at *11; see 38 C.F.R. § 4.40.

Here, the evidence of record does not show the Veteran's symptomatology, to include fatigue, muscle fatigue, headaches, numbness in the hand, and arthralgias of the hands, hips, ankles, and shoulders meet the criteria for a rating higher than the currently assigned 20 percent rating under any of the above criteria.  

In this regard, initially the Board notes that she has never been diagnosed with rheumatoid arthritis or what amounts to it as an active process, as such she is not entitled to a rating under Diagnostic Code 5002.  Therefore the Board will focus on the criteria for a 40 percent rating under Diagnostic Code 5025.

The evidence of record fails to show that she experienced fibromyalgia symptomatology at a near constant rate prior to June 23, 2006.  In this regard, the Board notes beginning with the December 1994 general medical examination that she reported only daily pain in her back with intermittent mild pain radiating into her buttocks and hips and fleeting joint pains in her hands, ankles, and shoulders.  A September 2000 examination report noted "waxing and waning" fatigue that could last several months, but was not continual.  The May 2002 Persian Gulf War protocol examination noted numbness in the hands that occurred only intermittently.  A December 2002 rheumatology consultation report noted that the Veteran experienced migratory polyarthralgia and occasional swelling with sudden onset and intermittent burning pain.  She reported the frequency of the "attacks" as every two months on average, lasting 2-3 days at time.  Additionally, a June 2003 VA rheumatology follow-up indicated she had roving joint pain, including an episode several weeks prior to that examination involving her shoulders.  The pain had not recurred since then, however.  While she reported daily pain in her lower back (a separately service-connected claim), she did not report daily pain in any other part of her body.

Thus, as the evidence fails to indicate she had widespread musculoskeletal pain and tender points that were shown to be constant, or nearly so, the Board finds that the higher 40 percent rating is not warranted prior to June 23, 2006.  As such, an earlier effective date for the 40 percent rating for her fibromyalgia is denied, as is her attorney's request to have her receive this 40 percent rating concurrently with the prior 20 percent rating for the arthralgias.


ORDER

The claim of entitlement to service connection for cognitive impairment and memory loss is denied.

The claim of entitlement to an effective date earlier than June 23, 2006, for the 40 percent rating for the fibromyalgia - including considering whether the Veteran is entitled to have her 20 percent evaluation under Diagnostic Code (DC) 8850-5002 for an undiagnosed joint disorder (referring to arthralgias of her hands, hips, ankles, and shoulders) resumed from June 2006 and to be separately evaluated as 40-percent disabled under DC 5025 because of her fibromyalgia from at least that date, also is denied.



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs