Citation Nr: 1319907 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-16 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right hand disability, to include right hand paresthesias claimed as due to an undiagnosed illness. 2. Entitlement to service connection for a left hand disability, to include left hand paresthesias claimed as due to an undiagnosed illness. 3. Entitlement to service connection for a right hip disability, to include right hip symptomatology claimed as due to an undiagnosed illness. 4. Entitlement to service connection for a left hip disability, to include left hip symptomatology claimed as due to an undiagnosed illness. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from January 2000 to July 2000 and from February 2003 to May 2004. He also had periods of reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A review of the Veteran's Virtual VA claims file reveals that it contains only evidence that is duplicative of that already contained in the paper claims file. While the Veteran requested a hearing before the Board in April 2010, he was scheduled for his hearing and then informed the Board in February 2013 that he would not be attending his hearing and wished for his appeal to be forwarded to the Board for adjudication. Therefore, all due process has been met with respect to the Veteran's hearing request. The issues of entitlement to service connection for disabilities of the right and left hands and GERD 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. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. Hip symptoms of the right and left leg did not manifest to a degree of 10 percent or more, and there is no evidence of any right or left hip disability that is due to disease or injury. 3. Sleep problems are attributable to a known clinical diagnosis, and sleep apnea is not related to service. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in or aggravated by active service, and signs and symptoms of the right hip are not due to an undiagnosed illness related to service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1111, 1117, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.317 (2012). 2. A left hip disability was not incurred in or aggravated by active service, and signs and symptoms of the left hip are not due to an undiagnosed illness related to service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1111, 1117, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.317 (2012). 3. Sleep apnea was not incurred in or aggravated by active service, and signs and symptoms of sleep problems are not due to an undiagnosed illness related to service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1111, 1117, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a March 2009 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claims for entitlement to service connection, both on a direct incurrence basis and based on a claim of disability due to undiagnosed illness or medically unexplained chronic multisymptom illness. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Dingess-compliant notice was also provided in this letter, and the Veteran has substantiated his status as a veteran. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 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 private and VA treatment records. There is some suggestion in the record that a portion of the Veteran's reserve service records are not associated with the claims file. The RO made three requests to the National Guard headquarters in Oregon for these records and was informed in July 2009 that they were sending all available records. In a July 2009 letter, the Record Management Center informed the RO that no records were available. In September 2009 the RO received all available records from a PIES request. The Veteran was informed that it was possible that records may be missing in a July 2009 letter. While it is possible that some of the Veteran's reserve records are missing and not associated with the claims file, four volumes of records are contained in the file. Nevertheless, to the extent that there may be additional records outstanding, the Board finds that the RO has exhausted all avenues for obtaining them, and any additional attempts would be an exercise in futility, as was also found by the RO in its October 2009 memorandum. The Veteran was also afforded multiple VA examinations as to the etiology of his claims of entitlement to service connection for a hip disability and sleep apnea. For the reasons stated below, these examinations were adequate, to the extent that they are pertinent. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims decided herein are thus ready to be considered on the merits. II. Analysis As an initial matter, the Board notes that the Veteran's separation document from his most recent period of service indicates that he received the Combat Infantryman Badge. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are potentially applicable. However, he has not asserted that hip disability or sleep apnea were associated with his period of combat. As such, section 1154 does not assist him in this case. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Since none of the disabilities claimed by the Veteran are considered chronic, the provisions of 38 C.F.R. §§ 3.303(b) do not apply in this case. See 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's service personnel records reflect that he is a Persian Gulf War veteran, and Congress has created special rules with regard to such veterans establishing entitlement to service connection. Service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of a "qualifying chronic disability." 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 317(a)(1). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). Neither hip joint complaints nor sleep apnea is listed as a medically unexplained chronic multisymptom illness. 38 U.S.C.A. § 1117(a)(2)(B); 38 C.F.R. § 3.317(a)(2)(B)(1). The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2016. 38 U.S.C.A. § 1117(a)(1)(B); (b)(2); 38 C.F.R. § 3.317(a)(1)(i); 76 Fed. Reg. 81834-01 (Dec. 29, 2011). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2)(ii)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(2)(ii)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to, fatigue and muscle and joint pain. 38 U.S.C.A. §§ 1117(g)(1),(4),(5); 38 C.F.R. § 3.317(b)(1),(4),(5). In order to afford the Veteran every possible consideration, the RO and the Board have considered his claims as directly related to service but also as undiagnosed illnesses due to service in the Persian Gulf, even though the Veteran's exact contentions are unclear. Hips In August 2009, the Veteran underwent VA examination, during which he denied any symptoms associated with his hips, and examination of the hips, to include x-ray examination, was normal. During that examination, the Veteran affirmatively complained of pain in his back and sacroiliac joint but denied all symptomatology regarding his hips. On examination, the Veteran's range of motion of the hips was tested. Hip abduction exceeded that which is considered normal. See 38 C.F.R. § 4.71a, Plate II. While flexion of each hip was noted to be less than normal, the examiner attributed this to the Veteran's body habitus. There is no other medical evidence of record that addresses symptomatology of the hips. The only lay statement that appears to address this is the Veteran's March 2009 claim, on which he lists "Muscle and Joint Pain...Hips." In order for a Veteran to establish entitlement to service connection, he must provide the existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). The only manifestation shown that is related to the hips is motion that is less than normal, but this has been attributed to the Veteran's body habitus and no other pathology. Thus, the lack of any relationship between any current hip disability, to include limitation of motion, and service is fatal to the Veteran's claims. Consequently, the claims of entitlement to service connection for right and left hip disabilities on a direct incurrence basis must be denied. Given the Veteran's claim of hip pain and the fact that he is a Persian Gulf War veteran, the Board has also considered entitlement to service connection for muscle or joint pain due to undiagnosed illness. However, given the essentially normal findings relating to the hips since service, as well as the fact that the Veteran did not complain of any hip-related signs or symptoms at that time, the evidence reflects that the hip symptoms, if they were ever present, have never been manifest to a degree of 10 percent or more. The Veteran has never asserted that he has manifested specific hip symptoms for at least six months. Consequently, the weight of the evidence is against a finding that the Veteran's hip complaints, to the extent that he asserts them, constitute muscle or joint pain due to undiagnosed illness. Finally, the Board notes that, while the August 2009 VA examination that addresses undiagnosed illness is inadequate with regard to the claims remanded below, the Board finds that this is not the case as to the claims of entitlement to service connection for the hips. Since there is no evidence that the Veteran manifested signs or symptoms of the hips that lasted for six months or more, an opinion as to whether such signs and symptoms are due to or part of an undiagnosed illness related to service in the Persian Gulf is not necessary or a pertinent part of this claim. Therefore, the Board does not need to remand this issue for additional development. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Sleep Apnea The evidence establishes that the Veteran has been diagnosed as having sleep apnea. Therefore, this element of that appeal has been satisfied. The only history that the Veteran has given regarding sleep apnea was during his August 2009 VA examination, when he indicated that he began snoring as a teenager. Subsequently, he lost weight, and the symptoms abated. However, after returning from the Middle East, he gained the weight back and began snoring again. The August 2009 VA examiner noted that a previous sleep study confirmed the diagnosis of mild sleep apnea. The diagnosis was reiterated in the examination report, and the examiner opined that it was likely secondary to obesity. While the Veteran has not complained of a specific symptom associated with his diagnosed sleep apnea, the Board notes that, to the extent that he manifests symptoms secondary to this disability, entitlement to service connection for such signs and symptoms as a manifestation of undiagnosed illness is not warranted if the symptom is attributed to a known clinical diagnosis. In this case, all evidence of record shows that a diagnosis of sleep apnea has been assessed. There is no contrary opinion indicating that the Veteran's sleep disorder was a manifestation of undiagnosed illness. Consequently, the preponderance of the evidence is against the claim for entitlement to service connection for sleep apnea, claimed as due to undiagnosed illness. Furthermore, the Board finds that the Veteran's sleep apnea is not otherwise related to his service. The evidence of record shows that the VA examiner opined that the Veteran's sleep apnea was related to his obesity. The Veteran also implied that such was the case, when he related it to his weight gain during the VA examination. Neither the Veteran nor any medical provider has related his sleep apnea to service in any way. Additionally, while the sleep apnea has been related to obesity, there is no evidence that the manifested sleep apnea during service. The fact that service records contain notations regarding his weight does not establish that obesity is either a disability or a disease or injury for VA compensation purposes. As such, the Board concludes that the preponderance of the evidence shows that any signs or symptoms of a sleep disorder have been attributed to a known diagnosis, sleep apnea, which is not related to service. The Board notes that the VA examiner also gave an assessment of probable sleep deficit from posttraumatic stress disorder (PTSD) and depression. However, the Veteran has already been service connection for PTSD and depression. Therefore, to the extent that these symptoms are present and separate from his sleep apnea, they are contemplated in the rating currently assigned to his psychiatric disability, which is not before the Board at this time. As the VA examiner explained the reasons for his conclusion based on the relevant diagnostic criteria, his examination findings, and review of the claims file, his opinion is entitled to substantial probative weight and the examination was adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Conclusion As the preponderance of the evidence is against each of the above claims, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for a right hip disability, to include right hip symptomatology claimed as due to an undiagnosed illness, is denied. Service connection for a left hip disability, to include left hip symptomatology claimed as due to an undiagnosed illness, is denied. Service connection for sleep apnea is denied. REMAND The Board finds that further development is necessary prior to final adjudication of the claims remaining on appeal. With regard to the claim of entitlement to service connection for disabilities of the hands, the Board notes that the Veteran has complained of numbness in his hands with activity and was assessed as having paresthesias of the hands on examination in August 2009. While the examiner opined that he could not find unexplained illness or medical conditions that would be linked to exposures in the Middle East, he provided no rationale for his conclusion and did not offer an opinion as to whether paresthesias of the hands were otherwise related to service. The Board finds that this opinion is inadequate and another attempt must be made to obtain an adequate opinion on this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). As to the claim of entitlement to service connection for GERD, the evidence shows that the Veteran reported the presence of heart burn when reporting medical history during active and reserve service in May 1998 and January 2003. The Veteran later stated that his heart burn began during his deployment to the Middle East, and his wife was forced to send him medication. All examinations conducted during service of the Veteran's esophagus and stomach were normal. The Board finds that there is evidence suggesting that the Veteran's GERD may have existed prior to a period of active service but also evidence suggesting that it may have been aggravated during a period of service. However, a definitive opinion is not of record. Therefore, the Board finds that remand is necessary to afford the Veteran an examination and opinion on this matter. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion as to whether the Veteran's paresthesias may be a manifestation of a larger undiagnosed illness. If the person designated to provide this opinion determines that examination is necessary, such should be scheduled. After reviewing the record, the examiner should address the following. a. Specifically state whether the Veteran's paresthesias and complaints of numbness of the hands are attributable to known clinical diagnoses, or are part of a larger undiagnosed illness. If there is a known clinical diagnosis that can be medically explained, the examiner should expressly indicate that. In such a case, the VA examiner should further opine on the etiology of the Veteran's disorder by addressing the following question: is it at least as likely as not (i.e., probability of 50 percent) that the disorder was incurred in service? b. If, on the other hand, the Veteran suffers from signs or symptoms that are determined not to be associated with a known clinical diagnosis, the examiner must note that fact. A complete rationale for all opinions must be provided. 2. Obtain an opinion with regard to the Veteran's diagnosed GERD and its relationship to service. If the examiner determines that the Veteran needs to be examined, such should be scheduled. The examiner is asked to opine as to the following: a. On the basis of all the evidence of record pertaining to any manifestations of the Veteran's GERD prior to, during, and subsequent to service, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran had GERD prior to his entry onto active duty? The Veteran's periods of active duty were from January 2000 to July 2000 and from February 2003 to May 2004. b. If so, on the basis of all the evidence of record pertaining to the manifestations of the Veteran's GERD prior to, during, and subsequent to service, is it clear and unmistakable that the Veteran's preexisting GERD either (1) underwent no increase in disability during either period of service, or (2) that any increase in disability during either period of service was due to the natural progression of the condition? c. Is it as least as likely as not that any current GERD is causally related to any incident of the Veteran's service or to aggravation of any preservice GERD during service? A complete rationale for all opinions must be provided. 3. Thereafter, the Veteran's claims should be readjudicated and returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs