Citation Nr: 1320432 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-28 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a hearing loss disability, to include as secondary to a service-connected traumatic brain injury (TBI) with prostrating headaches and cognitive deficiency. 4. Entitlement to service connection for a vestibular disorder/dizziness, to include as secondary to a service-connected TBI with prostrating headaches and cognitive deficiency. 5. Entitlement to service connection for speech impairment, to include as secondary to a service-connected TBI with prostrating headaches and cognitive deficiency. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1998 to January 2003 and from June 2004 to December 2005, to include combat service in support of Operation Iraqi Freedom. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the Veteran's claims for service connection for bilateral hearing loss, a dizziness condition, a speech impairment condition, a chronic cervical condition and CFS. A review of the Virtual VA paperless claims processing system does not reveal documents pertinent to the claims on appeal. In May 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing from the RO. A hearing transcript has been associated with the claims file. In November 2010, the Board remanded the instant claims to the Appeals Management Center (AMC) for further development and adjudication. The issues of entitlement to service connection for a hearing loss disability, a vestibular disorder and speech impairment are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, D.C. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that the Veteran currently has CFS as a result of his active duty service. 2. The preponderance of the evidence supports a finding that the Veteran currently has a cervical spine disorder, namely degenerative joint disease, as a result of his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for CFS have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317, 3.655 (2012). 2. The criteria for service connection for a cervical spine disorder, namely degenerative joint disease, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decisions to grant service connection for CFS and a cervical spine disorder are completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, including arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic diseases shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology, alone (in lieu of a medical nexus opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans with service in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also 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 not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). This evaluation period was recently extended to December 31, 2016. 76 Fed. Reg. 81,834 (Dec. 29, 2011). A 'qualifying chronic disability' includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom 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. See 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. See 38 C.F.R. § 3.317(a)(2)(5). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is then warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Chronic Fatigue Syndrome The Veteran contends that his chronic fatigue syndrome symptoms began after he returned from Iraq in November 2005. An October 1997 service entrance examination was negative for any relevant abnormalities. In a May 2004 Pre-Deployment Health Assessment, the Veteran denied medical problems and the examiner found that no referrals were indicated. A May 2004 retention examination was negative for any relevant abnormalities. In a November 2005 Post-Deployment Health Assessment, the Veteran reported that he still felt tired after sleeping and that he had been exposed to oil fires and burning trash while deployed. A March 2006 private treatment note reflected the Veteran's reports of fatigue since last November, when he returned from Iraq. During a May 2010 hearing, the Veteran testified that he first noticed symptoms of CFS in December 2005, after he returned from Iraq. His symptoms began as a low-grade fever and constant sleepiness. A January 2011 VA examination reflects the Veteran's reports that the onset of his CFS occurred over a two month period in early 2006 and that it began as a low-grade fever that Motrin could not break. He also became very tired, sleeping 12 to 18 hours per day, and had to be wakened to eat. He reported exposure to burning oil fires and fumes while serving in Iraq. The examiner, following a physical examination and a review of the Veteran's claims file, diagnosed the Veteran with CFS as at least six of the 10 CFS diagnostic criteria had been met, other clinical conditions that may produce similar symptoms had been excluded and the Veteran's daily functioning had been reduced below 50 percent of his pre-illness activity level for a period of six months. The examiner opined that it was at least as likely as not that the Veteran's CFS was caused by or a result of his service as he had significant environmental exposures while in Iraq. The examiner continued to opine that there was a known association with such environmental exposures and CFS. Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for chronic fatigue syndrome are met. A January 2011 VA examiner found that it was at least as likely as not the Veteran's current CFS was related to his service. This opinion was based upon a review of the Veteran's medical history and contained a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). No other medical opinion has been submitted. The Board notes that the AMC denied this claim under the provisions of 38 C.F.R. § 3.655 as the Veteran failed to appear for a VA examination scheduled in December 2010. However, this examination was rescheduled and, as described above, the Veteran attended the January 2011 VA examination. Moreover, the provisions of 38 C.F.R. § 3.655 provide that a claim shall be rated based on the evidence of record for an examination scheduled in conjunction with an original compensation claim, which would include consideration of the January 2011 VA examination. The examination report was of record prior to the June 2011 supplemental statement of the case. As the weight of competent and credible evidence of a diagnosis of CFS and a nexus to the Veteran's service in Southeast Asia is present in the January 2011 VA examination and opinion, entitlement to service connection for CFS is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Cervical Spine Disorder The Veteran contends that his current cervical spine disorder is the result of carrying heavy equipment during service. An October 1997 service entrance examination found the Veteran's spine to be normal and was negative for any relevant abnormalities. In a May 2004 Pre-Deployment Health Assessment, the Veteran denied medical problems and the examiner found that no referrals were indicated. A May 2004 retention examination found the Veteran's spine to be normal and was negative for any relevant abnormalities. In a November 2005 Post-Deployment Health Assessment, the Veteran reported swollen, stiff or painful joints. A March 2006 VA examination reflected the Veteran's reports of right-sided neck pain, which he attributed to carrying weapons and wearing body armor as an infantryman. Following a physical examination, a diagnosis of a chronic cervical spine strain was made. An August 2006 private treatment note reflected the Veteran's reports of right-sided neck pain. A cervical spine X-ray was noted to be have been ordered but the results were not detailed. A December 2006 private treatment note reflected the Veteran's reports of right-sided neck pain since August 2005. An assessment of myofascial pain of the neck was made. During a May 2010 hearing, the Veteran testified that he had been diagnosed with a neck disability in January 2006 and that he had continually sought treatment for this condition since that time. A January 2011 VA examination reflects the Veteran's reports of neck pain from carrying his weapon and assault pack as it put all of the pressure on the right side of his neck. A history of trauma was denied. Following a physical examination and a review of the Veteran's claims file, a diagnosis of cervical spine degenerative joint disease was made. The examiner opined that it was at least as likely as not that the Veteran's cervical spine degenerative joint disease was caused by or a result of his service as the Veteran complained of neck pain in August 2006 and his complaints had continued since that time. Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for a cervical spine disorder, namely cervical spine degenerative joint disease, are met. A January 2011 VA examiner found that it was at least as likely as not the Veteran's current cervical spine degenerative joint disease was related to his service. This opinion was based upon a review of the Veteran's medical history and contained a complete rationale. See Nieves-Rodriguez, supra. No other medical opinion has been submitted. The Board notes that the AMC also denied this claim under the provisions of 38 C.F.R. § 3.655 as the Veteran failed to appear for a VA examination scheduled in December 2010. However, this examination was also rescheduled and the Veteran attended the January 2011 VA examination. Moreover, and as previously described, the provisions of 38 C.F.R. § 3.655 provide that a claim shall be rated based on the evidence of record for an examination scheduled in conjunction with an original compensation claim, which would include consideration of the January 2011 VA examination. The examination report was of record prior to the June 2011 supplemental statement of the case. As the weight of competent and credible evidence of a diagnosis of cervical spine degenerative disease and a nexus to the Veteran's service in Southeast Asia is present in the January 2011 VA examination and opinion, entitlement to service connection for cervical spine degenerative disease is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for CFS is granted, subject to the legal authority governing the payment of VA compensation. Service connection for a cervical spine disorder, namely cervical spine degenerative joint disease, is granted, subject to the legal authority governing the payment of VA compensation. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims service connection for a hearing loss disability, a vestibular disorder/dizziness and speech impairment can be properly adjudicated. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9. Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Veteran contends that his hearing loss was caused by his in-service combat-related noise exposure and/or the result of his service-connected TBI. He also contends that his current speech impairment and dizziness are related to his service-connected TBI. In November 2010, the Board remanded these claims for service connection to determine the nature and etiology of the claimed disorders. Medical examinations and opinions were obtained in January 2011. The audiology examiner determined that the Veteran's audiometric test results were within normal limits and consequently did not offer an etiological opinion as to the Veteran's claimed hearing loss. However, while the auditory thresholds did not meet the requirements of hearing loss under VA regulations, the stated word recognition scores of 88 percent in the right ear and 82 percent in the left ear did satisfy such requirements. See 38 C.F.R. § 3.385. In addition, the neurology examiner did not address the Veteran's speech impairment or dizziness as directed in the Board's November 2010 remand. The Board notes that in light of the deficiencies detailed above, it is unlikely that the current VA opinions will survive judicial scrutiny and addendum opinions should be obtained. In addition, the Veteran has not received a clear and comprehensive notice relevant to these claims to include all criteria to substantiate claims for service connection on a direct, presumptive, and secondary basis. Further, the notice should request that the Veteran provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA treatment records showing treatment of the claimed hearing loss, vestibular disorder or speech impairment. The RO should make an attempt to obtain any treatment records identified by the Veteran that are not associated with the claims file. Finally, the most recent VA treatment records in the claims file are dated from May 2008. The record shows the Veteran receives treatment at the VA Medical Center (VAMC) in Philadelphia. Any updated VA treatment records should be obtained and associated with the file on remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with a notice explaining the criteria to establish service connection on a direct, presumptive, and secondary basis and request that the Veteran identify any source of VA or non-VA medical treatment rendered for the claimed hearing loss, vestibular disorder or speech impairment. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any outstanding records. If the Veteran adequately identifies the health care providers and completes the required authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 2. Obtain all outstanding records of evaluation and/or treatment of the Veteran from the VA Medical Center in Philadelphia, since May 2008. All records and/or responses received should be associated with the claims file. 3. Following the completion of the above development, and the receipt of any outstanding records, return the claims file, to include a copy of this remand, to the January 2011 VA examiner for an addendum opinion as to the nature and etiology of the Veteran's claimed hearing loss. If the examiner who drafted the January 2011 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another clinical examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: a) Is it is at least as likely as not (50 percent or greater probability) that such hearing loss is caused or aggravated by the Veteran's military service, to include his in-service noise exposure in combat? The examiner should also comment on the impact of any post-service noise exposure and on the impact of any hearing disability on the Veteran's employment and daily activities. b) Did such hearing loss manifest to within one year of the Veteran's discharge (i.e., December 2006)? If so, what were the manifestations? c) Is it at least as likely as not that the Veteran's hearing loss was caused OR aggravated by his service-connected TBI? The examiner should provide a rationale for these opinions. The examiner should comment on the impact of any post-service noise exposure and on the impact of any hearing disability on the Veteran's employment and daily activities. In addition, the examiner should comment on the Veteran's contentions that his in-service TBI resulted in his bilateral hearing loss. 4. Following the completion of the above development, and the receipt of any outstanding records, return the claims file, to include a copy of this remand, to the January 2011 VA examiner for an addendum opinion as to the Veteran's claimed aphasia or speech impairments. If the examiner who drafted the January 2011 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another clinical examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: a) Identify whether the Veteran suffers from a speech impairment. The examiner should identify all such disorders that have been present at any time since April 2006. b) If a speech impairment is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such speech impairment is caused or aggravated by the Veteran's military service, to include his service-connected TBI? The examiner should specifically consider the Veteran's lay statements regarding his speech impairment. The rationale for any opinion offered should be provided. 5. Following the completion of the above development, and the receipt of any outstanding records, return the claims file, to include a copy of this remand, to the January 2011 VA examiner for an addendum opinion as to the Veteran's claimed vestibular disorder/dizziness. If the examiner who drafted the January 2011 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another clinical examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: a) Identify whether the Veteran suffers from a vestibular disorder/dizziness. The examiner should identify all such disorders that have been present at any time since April 2006. b) If a vestibular disorder/dizziness is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such vestibular disorder/dizziness is caused or aggravated by the Veteran's military service, to include his service-connected TBI? The examiner should specifically consider the Veteran's lay statements regarding his vestibular disorder/dizziness. The rationale for any opinion offered should be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all of the evidence received since the issuance of the February 2009 statement of the case. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response The Veteran 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). ______________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs