Citation Nr: 1317562	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  08-11 629	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a lung disability/chest congestion, to include as due to an undiagnosed illness.

2.  Entitlement to service connection for stiff pinky fingers, to include as due to an undiagnosed illness.

3.  Entitlement to service connection for a left shoulder disorder secondary to service-connected right shoulder rotator cuff injury with arthritis (major), to include as due to an undiagnosed illness.

4.  Entitlement to service connection for a sleep disorder (other than sleep apnea), to include as due to an undiagnosed illness and as secondary to a lung disability/chest congestion and/or service-connected allergic conjunctivitis.    

5.  Entitlement to service connection for sleep apnea. 

6.  Entitlement to service connection for a low back disorder, to include as due to an undiagnosed illness.     

7.  Entitlement to service connection for right thigh numbness, to include as secondary to a low back disability and/or an undiagnosed illness.

8.  Entitlement to service connection for residuals, heat exhaustion.   

9.  Entitlement to service connection for a neck disorder, to include as secondary to service-connected right shoulder rotator cuff injury with arthritis (major) and/or an undiagnosed illness.
  
10.  Entitlement to service connection for right arm disorder secondary to service-connected right shoulder rotator cuff injury with arthritis (major) and/or an undiagnosed illness.

11.  Entitlement to service connection for allergic rhinitis, to include as secondary to service-connected allergic conjunctivitis.

12.  Entitlement to service connection for a right hip disorder, to include as secondary to a low back disability and/or an undiagnosed illness.

13.  Entitlement to service connection for bilateral hearing loss.

14.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran reportedly served in the Army National Guard from February 1981 to February 2005; she had a period of active duty from February 2003 to May 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and January 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The issues have been recharacterized as noted on the title page to better reflect all theories of entitlement raised by the Veteran or by the evidence of record (see Robinson v. Mansfield, 21 Vet. App. 545 (2008)), as well as the medical evidence of record and the Veteran's contentions.  

In September 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration.  A transcript of the hearing is associated with the claims folder. 
 
At the beginning of the appeal, the Veteran was represented by the American Legion.  In an August 2006 VA Form 21-22, the Veteran appointed the Illinois Department of Veterans Affairs as her representative, thereby revoking the earlier power of attorney.
 
The issues of entitlement to service connection for a low back, neck, right thigh, right arm, and right hip disorder disorders, and allergic rhinitis, and residuals of heat exhaustion are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  On September 19, 2012, prior to the promulgation of a decision in the appeal, the RO received notification from the Veteran's representative that the Veteran desired to withdraw the issue of entitlement to service connection for sleep apnea.

2.  The Veteran does not have left shoulder disability, lung disability, or disability exhibited by stiff pinky fingers or a sleep disturbance. 

3.  The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War.  The Veteran does not exhibit qualifying disabilities manifested by a lung disability/chest congestion, stiff pinky fingers, left shoulder abnormality or a sleep disorder from an undiagnosed illness.

4.  The Veteran does not have hearing loss disability in the right or left ear for VA disability compensation purposes.

5.  Resolving all doubt in the Veteran's favor, tinnitus had its onset during active service.


	CONCLUSIONS OF LAW	

1.  The criteria for withdrawal of the issue of entitlement to service connection for sleep apnea have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


2.  A left shoulder disability was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

3.  A lung disability/chest congestion is not the result of an undiagnosed illness and was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.317 (2012).

4.  Stiff pinky fingers are not the result of an undiagnosed illness and were not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.317 (2012).

5.  A sleep disorder (other than sleep apnea) is not the result of an undiagnosed illness and was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.317 (2012).

6.  Bilateral hearing loss was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

7.  Tinnitus was incurred during active service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran withdrew the issue of entitlement to service connection for sleep apnea.  This was done by a September 19, 2012 statement by her representative.  Because a withdrawal is effective when received, see 38 C.F.R. § 20.204(b)(3) (2012), there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

II. Veterans Claims Assistance Act of 2000 (VCAA)

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. 
§§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The United States Court of Appeals for Veteran Claims (Court)'s decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. 

In light of the favorable action taken herein with respect to the tinnitus claim, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the tinnitus claim at this time is not prejudicial to the Veteran.
 
VCAA letters were issued to the Veteran in October 2005 (hearing loss, lungs, sleep disorder), May 2006 (pinky fingers), April 2008 (left shoulder), and July 2008 (allergic rhinitis) with regard to her claims of service connection.  The letters notified the Veteran of what information and evidence is needed to substantiate her claims, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains STRs, private treatment records, and VA treatment records.  VA provided the Veteran with the opportunity to give testimony before the Board.  The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration.  See 38 C.F.R. § 3.159 (c)(2).

The Veteran underwent VA examinations in September 2006, October 2006, October 2008, and November 2008.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the October 2006, October 2008, and November 2008 examinations are adequate with respect to the left shoulder, hearing loss, and tinnitus claims.  The examiners considered the pertinent evidence of record, fully examined the Veteran, and thoroughly reviewed the claims file.  No left shoulder disability was found.

A current VA examination was not provided with respect to the lung, finger, or sleep claims.  Nevertheless, the available medical evidence does not show any current lung disability/chest congestion, stiff pinky fingers, or sleep disorder.  Under these circumstances, VA's duty to assist doctrine does not require that the Veteran be afforded a medical examination.  See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  There is no reasonable possibility that a VA examination would aid in substantiating the claims.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned VLJ in September 2012.  In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  During the September 2012 hearing, the VLJ identified the issues on appeal.  The hearing discussion did not reveal any evidence that might be available that had not been submitted.  The Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for benefits.  Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. 

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues in appellate status.

III.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b).  Any condition not encompassed by Section 3.303 (b) requires a medical nexus.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Organic diseases of the nervous system and arthritis are chronic diseases for purposes of presumptive service connection.  38 U.S.C.A. 
§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3). 

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical 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).  Competent lay evidence is 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).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Bilateral Hearing Loss
  
Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See also Hensley v. Brown, 5 Vet. App. 155 (1993).

The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to her claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the Court:

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

The Veteran's DD Form 214 reflects that she served in a designated imminent danger pay area in Iraq.  Thus, exposure to acoustic trauma is conceded.  

On audiometric testing conducted for enlistment purposes in February 1981, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
5
0
LEFT
5
0
0
5
0

The Veteran was diagnosed with otitis media in April 1982.

On audiometric testing conducted in April 1985, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

 On audiometric testing conducted in July 1989, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
0
LEFT
15
0
0
10
0

On audiometric testing conducted in February 1993, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
10
0
0
LEFT
10
15
10
0
5

On audiometric testing conducted in February 1995, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
0
0
0
0
0

In September 1996, the Veteran complained of hearing loss, cough, congestion, headache, and runny nose.  The diagnosis was upper respiratory infection.

On audiometric testing conducted in April 2001, pure tone findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
5
0
0
0

The Veteran's ears were clinically evaluated as normal on every service examination report.  

There is no separation examination of record.

A September 2006 VA examiner diagnosed bilateral hearing loss and opined that this condition is more likely than not related to service.  However, the examiner did not conduct an audiogram or review the claims file.

The Veteran submitted to an October 2006 VA audiological examination.  She complained of progressive hearing loss in her right ear since exposure to bombs and gunfire while stationed in Iraq from 2003 to 2004.  She indicated that she often had to turn her left ear toward whoever is speaking to her.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
10
10
LEFT
10
20
10
15
5

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed normal hearing in both ears.


A February 2008 VA treatment record shows that the Veteran complained of right ear hearing loss since returning from Iraq.  

VA treatment records dated from May 2009 to February 2013 show that the Veteran has continued to complain of right ear hearing loss.

As discussed above, impaired hearing will be considered to be a disability only when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz  is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or 

when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  In this case, although the audiology reports contained in the STRs appear to show some hearing threshold shifts and the Veteran complains of current problems hearing, a hearing loss disability as defined by VA regulations is not shown in either ear during service or on the October 2006 audiogram.  Specifically, post-service audiological testing establishes that none of the auditory thresholds in any of the frequencies from 500 through 4000 Hertz have been 40 decibels; less than three of the auditory thresholds have been 26 decibels or greater in the frequencies from 500 through 4000 Hertz; and, speech recognition scores have not been less than 94 percent.  In fact, the October 2006 VA examiner characterized the Veteran's speech recognition scores as excellent.  Consequently, in this case, the Veteran's bilateral hearing is within normal limits.  See 38 C.F.R. § 3.385.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In other words, in the absence of proof of present disability, in this case impaired hearing per § 3.385, there can be no valid claim.  As there is no probative medical evidence of a left ear hearing loss disability during service and following service, as defined by the applicable regulation, the claim must be denied.

The Veteran is competent to state that her hearing has decreased.  See Charles v. Principi, 16 Vet. App 370, 374-75 (2002).  Although there is no objective evidence to support a specific diagnosis of bilateral hearing loss, the Board has conceded in-service acoustic trauma.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as an audiogram and her views regarding loss of hearing acuity are not as probative as the audiograms.  Even if her opinion was entitled to be accorded some probative value, it is far outweighed by the audiological test evaluations of record, none of which shows a hearing loss disability in either ear for VA purposes.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).


Tinnitus

STRs are negative for any complaints or evidence pertaining to tinnitus.  

The Veteran submitted to an October 2006 VA audiological examination.  She complained of tinnitus since 2003 following exposure to bombs and gunfire.  The examiner reviewed the claims file and opined that the Veteran's tinnitus "is not at least as likely as not" related to her active service.  He noted that there was no objective evidence of tinnitus in the claims file.  He also noted that the audiometric findings were normal.  

A February 2008 VA treatment record shows that the Veteran complained of tinnitus since returning from Iraq.  

The Veteran testified at her Board hearing that she has had tinnitus since 2003.  

The Board has considered the October 2006 VA examination report, but finds that the opinion is of limited probative value.  The examiner noted that there is no evidence of tinnitus in the claims file.  However, tinnitus is a condition which is observable by lay a person and a lay person is competent to state that she experiences tinnitus, i.e., ringing in the ears.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

In determining whether evidence submitted by an appellant is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  The Veteran's statements that she has proffered with respect to tinnitus are credible.  She has consistently associated her tinnitus with noise exposure during her Iraq deployment.  The Board does not have any reason to conclude that her September 2012 testimony is other than credible, probative, and adds weight to the overall claim.  See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); see also Davidson, 581 F.3d at 1316. 
 
As discussed above, acoustic trauma is conceded.  The Board finds that the Veteran's lay statements describing the onset and chronicity of the tinnitus are consistent with her deployment to Iraq.  Moreover, the Board has found the October 2006 VA examination report to be of limited probative value.  As such, in light of the nature of the Veteran's service, her credible account of having tinnitus since service, and resolving all doubt in her favor, the Board finds that the tinnitus had its onset as a result of the Veteran's period of active service.

Left Shoulder/Pinky Fingers/Sleep Disorder/Lungs

Here, the Veteran contends that she incurred a left shoulder disability, stiff pinky finger, and a sleep disorder while deployed to Iraq.  A DD 215 establishes that she was stationed in Iraq from April 2003 to March 2004.  The Veteran further contends that she developed a lung disability/chest condition due to exposure to alleged environmental hazards, such as sand and dust, while deployed to Iraq.  

For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C.A. 
§ 1117; 38 C.F.R. § 3.317.  Under this law and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of "a qualifying chronic disability" that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. 
§ 3.317(a)(1).  For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2).

Medically unexplained chronic multi symptom illnesses are defined by a cluster of signs or symptoms and include, but are not limited to, chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(i), (ii) .

To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) that have become manifest either during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. 
§ 3.317(a)(3) .  Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

For purposes of 38 C.F.R. § 3.317 , disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4) .

STRs contain no complaints of, treatment for, or diagnoses of a left shoulder disorder, a lung disability/chest congestion, stiff pinky fingers, or a sleep disorder.  A February 1981 chest  X-ray was within normal limits.  

In February 2001, the Veteran received physical therapy for a partial rotator cuff tear of her right shoulder.  During one of her therapy sessions, she mentioned that her right hand was twitching.  No diagnosis was provided.

In November 2003, the Veteran was treated for coughing, sneezing, and chest congestion.  No diagnosis was provided.  She was instructed to follow up as necessary.

In January 2004, the Veteran was treated for swelling of her left hand and "left finger" pain.  In February 2004, the Veteran was treated for swelling of the right ring finger.

Post-service private medical records show no current left shoulder disability, lung disability/chest congestion, stiff pinky fingers, or a sleep disorder.  The Veteran has been repeatedly seen for various other orthopedic complaints, but no medical provider has identified or diagnosed any left shoulder or pinky finger disorder.

A June 2008 VA treatment record indicates that the Veteran had no history of asthma or wheezing.

The Veteran underwent an October 2008 VA joints examination, at which time her left shoulder was normal.
 
The Veteran submitted to a November 2008 VA spine and peripheral nerves examination, during which she specifically denied having any left shoulder problems.  She stated that she often woke up with numbness and tingling in her hands with the right greater than the left.  This improved after shaking her hands out.  A physical examination of the upper extremities was normal.  The examiner noted inconsistencies in the strength of the upper extremities.  Thus, he concluded that the physical examination did not support her symptoms.

VA treatment records include December 2010 pulmonary function tests (PFTs), which were normal.  

During the September 2012 hearing, the Veteran testified that she experienced right hand tingling during her deployment to Iraq.

In February 2013, the Veteran complained of slight shortness of breath with exertion due to her allergies.  It was noted that her cough had resolved.  No diagnosis was provided.

Service connection cannot be granted in the absence of a current disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  There is no diagnosed left shoulder disorder, lung disability/chest congestion, stiff pinky fingers, or sleep disorder.  While the Veteran is competent to describe subjective complaints such as pain, trouble sleeping, or trouble breathing, she is not competent to diagnose a disability where such requires specialized medical training or knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Furthermore, there is no evidence of undiagnosed illness attributable to the left shoulder, lungs, pinky fingers, sleep disturbance that is manifested to a compensable degree.  Service connection for an undiagnosed illness is not for application.  

The preponderance of the evidence is against the claims; there is no doubt to be resolved; service connection for a left shoulder disorder, lung disability/chest congestion, stiff pinky fingers, or sleep disorder is not warranted.


ORDER

Service connection for sleep apnea is dismissed.

Service connection for a left shoulder disorder is denied.

Service connection for a lung disability/chest congestion is denied.

Service connection for stiff pinky fingers is denied. 

Service connection for a sleep disorder (other than sleep apnea) is denied.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.


REMAND

The Veteran contends that her currently diagnosed neck, back, right arm, right thigh, right hip, and allergy disabilities are associated with her service, to include the deployment to Iraq from 2003 to 2004.  She further contends that she developed heat exhaustion while in Iraq, and that she now has residuals from this condition.  Alternatively, she maintains that her neck, right thigh/right hip, and right arm disabilities are related to her right shoulder, back, and neck disabilities, respectively.  

The Veteran contends that many of her claims are combat related.  The DD 214 shows that her military occupational specialty included internment resettlement specialist, administrative specialist, and military police.  She received several medals, including the Global War on Terrorism Service Medal.  None of the medals are sufficient to establish that the Veteran engaged in combat.  While the DD 214 notes that she served in an imminent danger area, this does not establish that the Veteran engaged in combat.  See Moran v. Peake, 525 F.3d 1157, 1159 (2008).  

Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303 (2012).  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in line of duty.  38 U.S.C.A. § 101(21)(24), (West 2002); 38 C.F.R. 
§ 3.6(a) (2012).  Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty.  Id.  Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1131 (2012).  ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists.  38 C.F.R. § 3.6(c).  INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state.  38 C.F.R. § 3.6(d).

Based on the Veteran's statements, it is unclear if she has actual knowledge of what is necessary to substantiate a claim of service connection based on her National Guard service with periods of ACDUTRA and/or INACDUTRA, as opposed to regular active duty service.  Therefore, the Veteran should be provided with an adequate notice letter and an opportunity to provide evidence showing that a disease or injury of the neck, back, right arm, right thigh, or right hip was incurred during a period of ACDUTRA, or that an injury of the neck, back, right arm, right thigh, or right hip was incurred during a period of INACDUTRA.

Furthermore, the claims file does not include the Veteran's personnel records.  As noted above, the Veteran reportedly served in the Army National Guard from February 1981 to February 2005.  However, the Veteran's periods of ACDUTRA  and INACDUTRA have not been verified.  Such dates are pertinent to the instant appeal, as service connection may be granted for disability resulting from disease incurred in or aggravated by ACDUTRA or injury incurred during INACDUTRA.  Accordingly, on remand, the complete dates and types of the Veteran's Army National Guard service should be verified, and a complete copy of personnel records from such service should be obtained.  See 38 C.F.R. § 3.159(c)(2) (2012). 

Orthopedic Claims

A private treatment record shows that the Veteran was diagnosed with muscular and ligament distillation of the low back in November 1982.

STRs show that the Veteran injured her right shoulder in June 1986.  At that time, she also complained about her neck.  

In February 1996, complained of tenderness over her right elbow.  She was diagnosed with right lateral epicondylitis.

The Veteran was involved in a motor vehicle accident in August 1998.  At that time, she complained of neck and back pain.  

A private treatment record shows that the Veteran was treated for neck pain again in June 2000.

VA treatment records dated in February and October 2007 show that the Veteran was treated for left shoulder and low back/neck pain, respectively, which she associated with carrying heavy equipment while deployed to Iraq.  She was diagnosed with disc disease in December 2007.

The Veteran submitted to a VA joints examination in October 2008.  She complained of ongoing neck and low back pain.  X-rays showed disc space narrowing at C4-5 and C5-6 and a small spur formation.  The examiner, a physician's assistant, reviewed the claims file and diagnosed cervical spine arthritis with right upper extremity radiculopathy, as well as lumbar spine arthritis with right lower extremity radiculopathy.  He opined that "[i]t is not at least as likely as not" that the Veteran's right arm and neck pain was due to her service-connected right shoulder disability.  Instead, he determined that "it is more likely than not" due to the cervical spine arthritis.  

The Veteran submitted to a VA spine examination in November 2008.  She complained of back and neck pain that reportedly started during her deployment to Iraq.  She described a shooting pain that went down her neck and back to her right thigh and toes.  Physical examination revealed no functional impairment of either the back or neck.  The examiner diagnosed disc space narrowing at C4-5 and C5-6 and a small spur formation.  He noted that without the claims file, he could not speculate as to whether the Veteran was treated for neck or back pain during service.  He noted that while there was subjective weakness and decreased sensation, there was no objective evidence of either condition.  He opined that "[i]t is not at least as likely as not" that the Veteran's neck disability is related to her right shoulder condition, noting that a shoulder condition would not cause disc space narrowing of the cervical spine.

The Board finds that the October 2008 and November 2008 opinions are inadequate.  Specifically, the October 2008 opinion is not supported by any rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Furthermore, the examiners addressed the theory of secondary service connection only.  Accordingly, these opinions are found to be of little probative value, and these matters must be remanded.  Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

The right thigh, right hip, and right arm issues are inextricably intertwined with the pending questions of service connection for low back and neck disabilities.  Issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue or issues have been considered.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  In other words, a grant of service connection for a low back or neck disability may impact the Veteran's right thigh, right hip, and right arm claims.  Action on these claims is therefore deferred.

Allergic Rhinitis/Heat Exhaustion

The Veteran attributes her allergies to exposure to dust and sand while stationed in the Persian Gulf.  

STRs show that the Veteran complained of coughing, sneezing, and chest congestion in November 2003.  She was treated for a heat rash in July 2003.  In January 2004, she complained of a runny nose, vomiting, nausea, sinus pressure, and a headache.  The diagnosis was post nasal drip, and an antihistamine.  However, the clinician wrote  "rule out heat intolerance."  

A December 2007 VA treatment record contains a diagnosis of chronic allergies.  In June 2008, the Veteran complained of itchy eyes and a runny nose since returning from Iraq.  Cough and post-nasal drip were also noted.  The diagnosis was allergic rhinitis.

The Veteran underwent a VA sinus examination in November 2008.  She indicated that she had developed allergy symptoms while deployed to Iraq.  Her symptoms became worse during the summer.  She denied childhood allergy problems.  It was noted that she had a history of chronic sinus infections.  The diagnosis was perennial allergic rhinitis.  The examiner opined that is not secondary to the service-connected sinusitis with headaches.

VA treatment records show continued treatment for allergies.

With respect to allergic rhinitis, the Board finds that the November 2008 opinion is inadequate.  Specifically, the opinion is not supported by any rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Furthermore, the examiner addressed the theory of secondary service connection only.  Accordingly, this opinion is found to be of little probative value, and this matter must be remanded.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

With respect to residuals of heat exhaustion, the evidence of record does not include a medical opinion addressing whether the claimed condition is causally or etiologically related to her service.  The Veteran was treated for heat intolerance during her deployment to Iraq.  She contends that she has had residuals of heat exhaustion, to include heat sensitivity, since discharge.  These statements are sufficient to meet the threshold requirements for a VA examination.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran a corrective VCAA notice letter that includes, in particular: (a) the criteria necessary to support a claim for service connection on a secondary basis and (b) the criteria necessary to substantiate a claim for service connection based on Reserve and National Guard service with periods of ACDUTRA and/or INACDUTRA. 

2. Request the Veteran's service personnel records from the NPRC and other appropriate records depositories. 

3. Ascertain the Veteran's dates of ACDUTRA and INACDUTRA service with the Army National Guard from February 1981 to February 2005.  In this regard, a statement showing only retirement points will not suffice.  If no such records are available, specific confirmation of that fact should be noted in the claims folder, and the Veteran should be so informed. 

4. After the above has been completed, schedule the Veteran for a VA orthopedic examination by an appropriate medical professional to determine the nature, extent, and etiology of any current neck, back, right arm, right thigh, and right hip disability(ies) that she may have.  The claims folder, to include all newly obtained evidence and a copy of this remand, must be made available to the examiner for review.  A notation to the effect that this review has taken place should be made in the examination report.  All indicated tests and studies should be performed. 

If a chronic neck, back, right arm, right thigh, or right hip disability is diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., 50 percent probability or greater, that such disability had its clinical onset during the Veteran's active service from February 2003 to May 2004 or a verified period of ACDUTRA or INACDUTRA as noted in the claims file, or is otherwise related to any such service.
 
If the Veteran has a chronic right arm disability that did not originate in, and is not otherwise related to, her period of active service from April 1989 to December 1990 or a verified period of ACDUTRA or INACDUTRA, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability was caused or aggravated by a service-connected right shoulder disability. If aggravated, specify the baseline of right arm disability prior to aggravation, and the permanent, measurable increase in right arm disability resulting from the aggravation.  

If the Veteran has a chronic right hip or thigh disability that did not originate in, and is not otherwise related to, her period of active service from April 1989 to December 1990 or a verified period of ACDUTRA or INACDUTRA, and it is determined that neck or back disability is related to service, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability was caused or aggravated by a service-connected spinal disability.  If aggravated, specify the baseline of right hip or thigh disability prior to aggravation, and the permanent, measurable increase in right hip or thigh disability resulting from the aggravation.  

If the Veteran's orthopedic complaints cannot be attributed to any known clinical diagnosis, the examiner should identify such symptomatology and indicate whether it represents an objective indication of chronic disability resulting from an undiagnosed illness related to any confirmed Persian Gulf War service, or a medically unexplained chronic multi-symptom illness.  In addressing this matter, the examiner should provide details about the onset, frequency, duration, and severity of such associated problems and should discuss what factor(s), if any, precipitate(s) and relieve(s) the relevant symptoms.

In answering these questions, the examiner should consider all relevant service and VA treatment records.  A full and complete rationale for all opinions expressed is required.  

5. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature, extent, and etiology of her current allergic rhinitis.  The claims folder, to include all newly obtained evidence and a copy of this remand, must be made available to the examiner for review.  A notation to the effect that this review has taken place should be made in the examination report.  All indicated tests and studies should be performed. 

The examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the allergic rhinitis is etiologically related to the Veteran's service from February 2003 to May 2004.  The examiner must consider the Veteran's assertions of in-service exposure during the Persian Gulf War to alleged environmental hazards, such as sand and dust.

If the Veteran's allergic rhinitis did not originate in, and is not otherwise related to, her period of active service, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability was caused or aggravated by service-connected sinusitis or allergic conjunctivitis.  If aggravated, specify the baseline of allergic rhinitis prior to aggravation, and the permanent, measurable increase in allergic rhinitis resulting from the aggravation.  A full and complete rationale for all opinions expressed is required.  

6. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature, extent, and etiology of her claimed residuals of heat exhaustion.  The claims folder, to include all newly obtained evidence and a copy of this remand, must be made available to the examiner for review.  A notation to the effect that this review has taken place should be made in the examination report.  All indicated tests and studies should be performed. 

The examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that any residual of heat exhaustion is etiologically related to the Veteran's service from February 2003 to May 2004.  The examiner must address the service treatment records dated in July 2003 and January 2004.  A full and complete rationale for all opinions expressed is required.  

7. Thereafter, readjudicate the claims of entitlement to service connection for a low back disability, a neck disability, right thigh numbness, a right arm disability, a right hip disability, allergic rhinitis, and residuals of heat exhaustion.  If any of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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

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



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs