Citation Nr: 1319311 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 00-05 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 2. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied service connection for headaches and joint pain. In his substantive appeal, the Veteran requested a Board hearing; however, he later withdrew this request in an August 2005 written statement. In May 2004, the Veteran testified at a RO hearing before a Decision Review Officer. The Board notes that service connection for joint pain was previously denied in a September 1994 RO rating decision. The Veteran did not appeal that decision. On November 2, 1994, Congress enacted the "Persian Gulf War Veterans' Act," Title I of the "Veterans' Benefits Improvements Act of 1994," Public Law 103-446. That statute added a new section 1117 to Title 38, United States Code, authorizing VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asian theater of operations during the Persian Gulf War. Where there is an intervening liberalizing law or VA issue that may affect the disposition of a claim, VA is required to conduct a de novo review of the previously denied claim. See Pelegrini v. Principi, 18 Vet. App. 112, 125-26 (2004); Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Since the Veteran's claim is based on a substantive right created by a statutory or regulatory provision that was not applied and did not exist in its current form at the time of the prior final denial, the Board finds this claim represents a new claim for jurisdictional purposes for which VA is required to conduct a de novo review. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). When this case was most recently before the Board in May 2012, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file was completed to ensure comprehensive analysis of the evidence. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War; he was awarded the Southwest Asia Service Medal with two bronze stars and the Kuwait Liberation Medal. 2. The Veteran's headaches did not became manifest during active military service in the Southwest Asia theater of operations, have been attributed to a known clinical diagnosis, and are not otherwise etiologically related to service. 3. The Veteran's joint pain did not became manifest during active military service in the Southwest Asia theater of operations, has been attributed to a known clinical diagnosis, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. Headaches are not due to an undiagnosed illness as a result of service in the Southwest Asia theater during the Persian Gulf War and are not otherwise etiologically related to service. 38 U.S.C.A. §§ 1101, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2012). 2. Joint pain is not due to an undiagnosed illness as a result of service in the Southwest Asia theater during the Persian Gulf War and is not otherwise etiologically related to service. 38 U.S.C.A. §§ 1101, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's claims were received prior to the enactment of the VCAA. Regardless, the record reflects that the RO provided the Veteran with the notice required under the VCAA in letters dated in March 2001, September 2005, January 2007, December 2008, and November 2009. Thereafter, the claims were readjudicated in a June 2011 supplemental statement of the case, thereby curing any timing deficiency with respect to the notice. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs), and all of the identified post-service treatment records. In addition, the Veteran was provided with VA examinations, most recently conducted in September 2012. The Board finds that the evidence is adequate to make a determination on these claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For certain disorders listed among the "chronic diseases" under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. Among the requirements are that there are objective indications of a qualifying chronic disability, which means a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (i.e., chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness specified by the Secretary), or any diagnosed illness specified by the Secretary. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 68 Fed. Reg. 34541 (June 10, 2003). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to fatigue, signs and symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs and symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg 81834 (Dec. 29, 2011) (extending the delimiting date to December 31, 2016). Further, by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a 6-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms have been medically attributed to a diagnosed rather than undiagnosed illness, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998), published at 63 Fed. Reg. 56, 703 (1998). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the appellant or on his behalf. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran's claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Background Information - Headaches At the outset, the Board notes that the Veteran received the Southwest Asia Service Medal with two bronze service stars, along with the Kuwait Liberation Medal; therefore, the evidence supports that he is a "Persian Gulf Veteran." See 38 C.F.R. § 3.317. The Veteran's military personnel records reflect that he had oversea service in Saudi Arabia from December 1990 to February 1991. The Veteran asserts that his headaches first began during or shortly after his service in Saudi Arabia. During the May 2004 RO hearing, he said that his headaches began about three months after returning from Southwest Asia and that they were associated with irritation of his eyes every time he went outside. The record reflects that he has also associated onset of headaches with stress, cold exposure, loud noise, and hypothyroidism. A Gulf War Registry examination in October 1996 noted complaints of headaches. A VA examination in 1997 noted history of headaches for the first three years after coming back from the Gulf War. At the outset, the Board notes that the Veteran's headaches have been attributed to a known clinical diagnosis and the provisions of 38 C.F.R. § 3.317 do not apply. To this point, November 1997 and September 2008 VA examiners both diagnosed the Veteran with tension headaches. The September 2008 VA examiner further stated that the headaches were not due to undiagnosed illness. In November 2009, the Board remanded the claim, in part, to obtain a medical opinion regarding the etiology of the Veteran's headaches. The examiner reviewed the claims file and noted that the Veteran did not complain of any headaches during service or seek treatment. The examiner also noted that the Veteran later gave a history of headaches in service that were not evaluated by a physician. The examiner ultimately concluded that she was unable to provide an opinion without resorting to speculation. While the Veteran is competent to state that his headaches manifested during service, it is the Board's responsibility to determine whether these statements are credible. Here, the Veteran's service treatment records are unremarkable for complaints, treatment, or diagnoses related to headaches. On his March 1994 report of medical history prior to retirement, the Veteran specifically denied having frequent or severe headaches. Furthermore, despite listing numerous medical complaints, he did not include any complaints of headaches and he did not seek compensation for headaches when filing his original claim for benefits in September 1994. Therefore, while the Veteran is competent to report that his headaches manifested during service, the Board does not find that these statements are credible. In response to the Board's May 2012 remand, the Veteran was afforded a VA examination in September 2012 in which the VA examiner diagnosed tension headaches and opined that it was less likely as not that the tension headaches were etiologically related to service. The VA examiner stated that they were simple tension headaches, which were usually brought on by stress and spasm of the scalp and face musculature. In addition, it was less likely as not that these tension headaches were caused by or aggravated by the Veteran's service-connected eye irritation. The examiner stated that STRs did not contain any documentation or entries concerning tension headaches; that local eye irritation would cause perhaps some discomfort directly at the eyes themselves, but should not typically cause tension headaches which would then radiate all over the skull. Analysis - Headaches In addition to the medical evidence above the Board has carefully considered the lay evidence presented by the Veteran and his representative in the form of correspondence to VA, in which it has generally been argued that his headaches are related to his service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has accepted the Veteran's account as competent although not credible. However, a layperson is not considered capable of opining, however sincerely, in regard to diagnosis of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The STRs are unremarkable for complaints, treatment, or diagnoses related to headaches and the only probative medical opinion of record is against the claim. In sum, the Board has determined that the Veteran's current headaches developed after the Veteran's discharge from service and are not etiologically related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. Background Information - Joint Pain As regards the Veteran's claim for service connection for joint pain, the Board notes that the Veteran has a history of general complaints of joint pain. Service records show complaints of joint pain on his retirement examination dated March 1994. A VA record in October 1996 also showed a diagnosis of joint pain. Specifically, the Veteran has complained of joint pain in his knees, back, shoulders, arms, elbows, hands, and feet. The Veteran also testified that joint pain began about three months after his return from Saudi Arabia. The Veteran is currently service-connected for disabilities of the bilateral knees, lumbar spine, cervical spine, and shoulders. Therefore a determination must be made as to whether service connection is warranted for any remaining joint pain not associated with a service-connected disability. The report of the September 2008 VA joints examination reflects that the Veteran complained of problems with his knees, back, calves, and that the physical examination focused solely on the Veteran's knees and spine. In June 2011, another VA examiner reviewed the Veteran's claims file and opined that there was "no evidence of undiagnosable illness or medically unexplainable condition" and that "any joint condition is more likely than not a result of aging, musculoskeletal deconditioning and a genetic predisposition to developing joint problems. Advanced age is one of the strongest risk factors associated with development of osteoarthritis." The examiner cited literature to support her conclusion that osteoarthritis is most often age-related. The Board found that the September 2008 VA examination and June 2011 medical opinion were not sufficient to make a determination on these claims and remanded the case to afford the Veteran a VA examination. As outlined below, the Board notes that the Veteran's remaining joint pain has been attributed to a known clinical diagnosis and the provisions of 38 C.F.R. § 3.317 do not apply. Elbow and Forearm STRs in January 1990 noted physical therapy for arm pain, in pertinent part, with no diagnosis. STRs also documented left elbow lateral epicondylitis in 1993. VA treatment records show in 2002 that the Veteran complained of pain radiating from his shoulders to his mid upper arm in the left and his elbow in the right. He was diagnosed with shoulder and elbow pain. In response to the Board's remand, the Veteran was afforded a VA examination in September 2012 that showed a diagnosis of right elbow tendinitis/lateral epicondylitis. The Veteran reported that he began to notice intermittent right elbow pain about five years prior, over the lateral epicondyle. He did not recall any specific incident or injury to the right elbow. He had lateral elbow pain with gripping of objects with his right hand. The VA examiner opined that it was less likely as not that the Veteran's current right elbow lateral epicondylitis was the result of a disease or injury incurred in or aggravated by service. The examiner stated that the claims file was reviewed and STRs documented left elbow lateral epicondylitis in 1993, but the Veteran did not complain of that elbow at all. In addition, the Veteran stated that the right elbow problem began only several years ago, which was greater than 20 years after military service ended; X-rays of the right elbow taken for this examination were also normal. Therefore, the examiner opined that service connection was not substantiated. Foot STRs documented a right foot injury in 1976. The Veteran was afforded a VA examination in September 2012 in which the examiner noted a diagnosis of right foot injury/sprain in 1976. The Veteran reported that during a parachute jump in 1976, he landed on concrete, twisting and spraining his right foot. He stated that his right foot was currently intermittently painful over the lateral little toe. The examiner noted that X-rays of the right foot were normal in 2001. The examiner opined that it was less likely as not that the Veteran's current right foot condition was the result of disease or injury incurred in or aggravated by service. The examiner stated that the claims file was reviewed; STRs documented a right foot injury while in service, in 1975 - 37 years prior to the examination, and there was no further documentation of the problem afterwards. The examination revealed only right lateral 5th toe tenderness, and X-rays were normal with no evidence of degenerative joint disease of the right foot at all. Thus, the examiner opined that the toe discomfort was probably localized tendinitis and that service connection was not substantiated. Hand and Fingers VA treatment records in 2001 show that the Veteran reported pain in his right hand to his elbow, numbness, and that the right hand would swell up. The VA examination in September 2012 showed that the Veteran reported that he developed a painful swollen left thumb over the prior 10 years. He denied any specific injury to the left thumb or hand. The VA examiner opined that it was less likely as not that the Veteran's current left hand condition was the result of disease or injury incurred in or aggravated by service. The examiner stated that the claims file was reviewed; the Veteran had arthritis of his left thumb, with tenderness and noticeable deformity. The examiner stated that the STRs did not document any problems with his left hand during service; thus, service connection was not substantiated. Hip and Thigh In the September 2012 VA examination, the Veteran reported onset of right lateral and anterior hip pain over the past several years. The examiner stated that the claims file was reviewed and the Veteran appeared to have developed chronic right hip bursitis, with decreased range of motion and localized tenderness to touch. X-rays were negative for arthritis of the right hip. Review of the STRs did not reveal any entries for right hip complaints at all, and the Veteran stated himself that the problem began several years ago. Thus, it was the examiner's opinion that it was less likely as not that the current right hip condition was incurred or aggravated by service. Analysis - Joint Pain In addition to the medical evidence above the Board has carefully considered the lay evidence presented by the Veteran and his representative in the form of correspondence to VA, in which it has generally been argued that his joint pain (as diagnosed above) was related to his service. The Board also notes that a lay "buddy" statement submitted in August 2011 attested to the Veteran's multiple parachute jumps in service, causing "wear and tear" on the body to include his feet, hips, knees, and shoulders. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer, 7 Vet. App. 379, 384; Falzone, 8 Vet. App. 398, 403; Caldwell, 1 Vet. App. 466. The Board has accepted the Veteran's account as competent and credible in regards to his joint pain. However, a layperson is not considered capable of opining, however sincerely, in regard to diagnosis of a disability. Routen, 10 Vet. App. 183, 187, aff'd sub nom Routen, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones, 7 Vet. App. 134, 137. Based upon review of the evidence above, the Board finds the Veteran's claim for service connection for joint pain, diagnosed as outlined above, must fail because the medical evidence does not indicate a connection between the Veteran's current disabilities and service. That is, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In sum, the Board has determined that the Veteran's current joint pains, as diagnosed above, developed after the Veteran's discharge from service and are not etiologically related to service. Additionally, because such disorders were not diagnosed within a year of service separation, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the criteria for service connection are not met and the claims must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine, but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for headaches, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness, is denied. ____________________________________________ THOMAS D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs