Citation Nr: 1320604	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  07-34 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for a chronic disability manifested by numbness of the extremities, to include a claim for service connection for numbness of the extremities as a qualifying chronic disability under 38 C.F.R. § 3.317.

2.  Entitlement to service connection for a chronic disability manifested by headaches, to include a claim for service connection for headaches as a qualifying chronic disability under 38 C.F.R. § 3.317.

3.  Entitlement to service connection for a chronic disability manifested by dizziness, to include a claim for service connection for dizziness as a qualifying chronic disability under 38 C.F.R. § 3.317.

4.  Entitlement to service connection for a chronic disability manifested by fatigue, to include a claim for service connection for fatigue as a qualifying chronic disability under 38 C.F.R. § 3.317.

5.  Entitlement to service connection for a chronic disability manifested by stiffness, to include a claim for service connection for stiffness as a qualifying chronic disability under 38 C.F.R. § 3.317.

6.  Entitlement to service connection for a chronic disability manifested by joint pain, to include a claim for service connection for joint pain as a qualifying chronic disability under 38 C.F.R. § 3.317.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran had active service from February 1989 to April 1992, including service in Southwest Asia. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, denied service connection for stiffness, joint pain, dizziness, fatigue, headaches, and numbness of extremities.

In June 2010, this case was remanded by the Board for further development.

During the course of the appeal, jurisdiction of these claims was transferred to the RO in New Orleans, Louisiana.

During the course of the appeal, the Veteran submitted claims for service connection for muscle pain, circulatory and nerve problems, and a depressive disorder, claimed as altered mood and memory loss.  The Veteran alleges that these disorders and symptoms result from his Persian Gulf service.  The record before the Board does not reflect that that a substantive appeal has been received since the RO issued an April 2010 statement of the case (SOC) addressing these issues.  These claims are not before the Board for appellate review at this time.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.

The issue of entitlement to service connection for dizziness is addressed in the REMAND portion of the decision below and is 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.  Tension headaches were not shown in active service, and there is no lay observation or medical evidence linking currently-diagnosed tension headaches to the Veteran's service.

3.  The Veteran's complaints of numbness of the extremities have been attributed to his diagnosed tension headaches.

4.  A chronic fatigue disability was not shown in active service; there is no lay observation or medical evidence linking the current complaints of fatigue to the Veteran's service; and the Veteran's intermittent fatigue has been attributed to known clinical diagnoses of sleep apnea and depression.

5.  Stiffness and joint pain have been attributed to known clinical diagnoses of arthritis and degenerative joint disease and there is no lay observation or medical evidence linking the current complaints of stiffness and joint pain to the Veteran's service or any incident thereof.


CONCLUSIONS OF LAW

1.  The Veteran did not incur or aggravate tension headaches and numbness of the extremities during or as a result of his service, and those disorders may not be presumed to demonstrate or result from an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012).

2.  The Veteran does not have chronic fatigue as the result of disease or injury incurred in or aggravated by active military service, and it may not be presumed to be due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.   38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012).

3.  The Veteran does not have stiffness and joint pain as the result of disease or injury incurred in or aggravated by active military service, and those symptoms may not be presumed to be due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper notice from 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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

Prior to the initial denial of the present claims, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in notice letters sent in July 2006 and November 2006.  The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claims.  The RO further described what evidence that the Veteran should provide in support of his claims.  Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. 

Because the Veteran was provided with proper notice with respect to his claims by way of the July and November 2006 pre-adjudication notice letters, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.

Moreover, the Veteran and his representative were provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision.  Neither the Veteran nor his representative has alleged prejudice with respect to notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  

Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent medical evidence associated with the claims files consists of service and VA treatment records, private treatment records, and the reports of VA examinations in December 2007, June 2009, and November 2009.  In addition, pursuant to the Board's June 2010 remand the Veteran was afforded additional VA examinations in July and August 2010.  A review of those reports of examination shows that all subjective and objective findings necessary for evaluation of the Veteran's claims were observed and recorded.  Thus, the examinations appear to be complete and adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Accordingly, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claims.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).  Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf.

Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein.  Therefore, in view of the foregoing, the Board will proceed with appellate review.

II.  Service Connection

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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, on the claims.  The Veteran must 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 veteran).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.

The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted for disability or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  As a general matter, service connection for a disability on the basis of the merits of such claim requires (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).

Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012).  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).

Certain chronic diseases, including other organic diseases of the nervous system and arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  In this regard, the Board notes that the Veteran's complaints of joint pain and stiffness have been diagnosed as arthritis, which is a chronic disease.  However, the Veteran's intermittent fatigue, tension headaches, paresthesias, and neuralgia are not "chronic diseases" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply to these claims.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active 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, 2011.  See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012).  Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service.  Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met.  See 38 C.F.R. § 3.317(c) (2012); Gutierrez v. Principi, 19 Vet. App. 1 (2004).

The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia Theater of operations. The Veteran in this case has been awarded a medal based on such service, according to his DD214.

For purposes of § 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.A. § 1117(d) warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2) (2012).  An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  Further, laypersons are competent to report objective signs of illness.  See Gutierrez v. Principi, 19 Vet. App. 1 (2004).
A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  See 38 C.F.R. § 3.317(a)(2).  There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C) (2012).

Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

In his December 2008 notice of disagreement, the Veteran contended that during his incarceration he realized that his numbness of the extremities, headaches, fatigue, stiffness, and joint pain may be related to exposure to chemical and biological agents, including smoke from oil wells and destroyed weapons arsenals, and vaccinations, during his service in the Gulf War in the early part of 1991.  The Board will now address the merits of each claim.

A.  Headaches and Numbness of the Extremities

The Veteran's STRs include a July 1988 enlistment examination which reflects a normal clinical evaluation of the extremities and a normal neurologic evaluation.  A September 1989 screening note of acute medical care notes a complaint of headache, weakness, and a sore throat.  An October 1990 emergency care and treatment report shows that the Veteran complained of sinus congestion and a frontal headache which had bothered him off and on for one year since moving to Oklahoma.  However, an April 1992 separation examination reflects a normal clinical evaluation of the extremities and a normal neurologic evaluation.  In an April 1992 report of medical history, the Veteran indicated that he was in fair health and denied dizziness or fainting spells, but complained of frequent or severe headaches and reported an episode of sinusitis.

Correctional managed care records dated in February and April 2004 reflect the Veteran's complaints of migraine headaches.  A June 2004 case summary shows a history of headaches since February 2004.  A September 2004 report notes complaints of headaches and a notation about considering whether the Veteran was experiencing seizure activity secondary to previous head trauma.  In October 2006, he was diagnosed with questionable trigeminal neuralgia.  A July 2007 report notes a history of headaches since 2003.  An August 2007 report indicates a 4-year history of headaches.  A November 2007 report shows a complaint of migraines with intermittent numbness on the right side of the head and face and numbness of the hands and legs.  A December 2007 MRI of the Veteran's brain was normal.

A December 2007 VA general medical examination report reflects the Veteran's complaint of numbness in the extremities since 2001.  The Veteran stated that he initially noticed numbness in his feet which progressed to his hands and the right-side of his face.  With regard to headaches, he noted an onset of approximately 1990.  While on active duty, he was diagnosed as having sinus headaches and or sinusitis that progressively worsened.  The diagnosis was undetermined, but the examiner noted associated recurrent headaches and abnormal physical findings associated with elevated blood pressure.

VA treatment records include an April 2009 report which shows a complaint of frontal headaches.

On VA Gulf War examination in June 2009, the Veteran presented with a history of numbness in the extremities since 2002.  He was diagnosed with intermittent paresthesias of the right upper and lower extremity of unknown etiology with associated numbness of the extremities and other circulatory problems.

VA treatment records include a September 2009 report that reflects an assessment of chronic headaches.  Another September 2009 report indicates a complaint of a sinus headache.  An April 2010 report reflects the Veteran's complaint of numbness of the extremities, hands, and feet.

Pursuant to the Board's June 2010 remand, the Veteran underwent a VA neurological disorders examination in July 2010 at which time he presented with complaints of headaches with numbness in his extremities since 1998.  He described sudden numbness from his head to his toes, lightheadedness, and headaches.  Neuro-sensory examination of the upper and lower extremities was normal.  Reflex and motor function examinations of the extremities were also normal.  The examiner diagnosed tension headaches with numbness in the extremities.  The examiner opined that tension headaches are a specific disease diagnosis and are less likely as not related to the Veteran's military service or Gulf War exposures.  There was no objective evidence of a neuro-sensory disability.

In this case, the Board notes that the Veteran has been diagnosed with tension headaches and that his symptoms of numbness of the extremities have been attributed to those headaches.  Therefore, neither disability falls within the purview of the undiagnosed illness presumptive provisions and presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted.

With regard to entitlement to service connection for headaches and numbness of the extremities on a direct basis, on review of the evidence above, the Board finds the Veteran does not have headaches or any neurological disorder of the extremities that are etiologically related to his service.  In addition, the record includes a July 2010 VA medical opinion which states that the Veteran's tension headaches and associated numbness of the extremities are not related to his active service.  The Board notes that the examiner provided a sound rationale in support of the conclusion and has the requisite medical expertise to provide a competent medical opinion regarding the etiology of the Veteran's tension headaches and neurological complaints pertaining to the extremities.  The examiner also had sufficient data on which to base the conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, and his own interview and examination of the Veteran.  Moreover, there is no contrary medical opinion of record.

Furthermore, the Veteran's tension headaches, neuralgia, and paresthesias were not shown until at least a decade after his discharge from active duty.  See 2004 correctional records, noting headaches.  Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection.  See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000).

Under each applicable theory of entitlement to service connection, the preponderance of the evidence is against the claims for service connection for headaches and numbness of the extremities.

B.  Fatigue

The Veteran's STRs include July 1988 enlistment and April 1992 separation examination reports which are negative for complaints of fatigue.  In an April 1992 report of medical history, the Veteran indicated that he was in fair health, but complained of frequent trouble sleeping.

Correctional managed care records include a July 2006 report which shows complaints of marked fatigue.  The assessment was questionable labyrinthine dysfunction, rule out diabetes, hypothyroidism, and prostate symptoms.  April 2008 correctional managed care records include a report which reflects the Veteran's continued complaint of fatigue, consistent with the Veteran complaint of fatigue at a December 2007 VA examination.  The Veteran reported fatigue since approximately 2002.  The VA examiner assigned a diagnosis of undetermined disorder with associated fatigue.  VA treatment records include a September 2009 report which shows that the Veteran's antidepressant caused fatigue and lethargy.

Pursuant to the Board's June 2010 remand, the Veteran underwent a chronic fatigue syndrome examination in August 2010, at which time he presented with a history of fatigue since mid-1996 which he thought was due to low iron.  He had no motivation to perform exercise and was depressed.  He was diagnosed with sleep apnea corrected with C-PAP (continuous positive airway pressure), and depression.  The examiner opined that the Veteran's fatigue was due to diagnosed sleep apnea and depression.  She also found that 6 out of the 10 chronic fatigue syndrome diagnostic criteria had not been met.

On VA Gulf War Guidelines examination in August 2010, the examiner opined that the Veteran's disability pattern is a disease with a clear and specific etiology and diagnosed intermittent fatigue secondary to sleep apnea and depression which is not at least as likely as not related to a specific exposure event.

In this case, the Board notes that the Veteran's complaints of intermittent fatigue have been attributed to known clinical diagnoses, sleep apnea and depression, which are not undiagnosed or chronic multisymptom illnesses.  Therefore, the Veteran's fatigue does not fall within the purview of the undiagnosed illness presumptive provisions and presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted.

With regard to entitlement to service connection for fatigue on a direct basis, on review of the evidence above, the Board finds the Veteran does not have fatigue that is etiologically related to his service.  In addition, the record includes an August 2010 VA medical opinion which does not attribute the Veteran's fatigue to his active service.  The Board notes that the examiner provided a sound rationale in support of the conclusion that fatigue was due to sleep apnea and depression, and has the requisite medical expertise to provide a competent medical opinion regarding the etiology of the Veteran's fatigue.  The examiner also had sufficient data on which to base the conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, and his own interview and examination of the Veteran.  Moreover, there is no contrary medical opinion of record.

The Board acknowledges that the Veteran complained of fatigue in service, as documented in an April 1992 report of medical history.  However, there is no record that the Veteran sought post-service evaluation for fatigue until over two decades after his discharge from active duty.  Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection.  See Maxson v. Gober, 230 F. 3d 133-(Fed. Cir. 2000).

Under each applicable theory of entitlement to service connection, the preponderance of the evidence is against the claim for service connection for chronic fatigue.  Chronic fatigue was not shown in service, or until many years after service, when fatigue was medically attributed to a disorder for which service connection is not in effect (sleep apnea), and the Veteran's fatigue is not an undiagnosed disorder under the provisions pertaining to Persian Gulf veterans since the cause of the Veteran's fatigue is medically known.  The claim for service connection for chronic fatigue must be denied.

C.  Stiffness and Joint Pain

The Veteran's STRs include an April 1992 report of medical history that reflects complaints of swollen or painful joints, especially the knees and ankles.  However, the remaining STRS are devoid of any complaints or diagnoses attributable to stiffness and joint pain.

On VA general medical examination in December 2007 the Veteran was diagnosed with possible arthritic changes with associated symptoms of bilateral pain and stiffness of all joints.

VA treatment records include a December 2008 report that reflects an assessment of chronic joint pain/arthralgia.  In September 2008, the Veteran provided a history of generalized joint discomfort.

On VA Gulf War examination in June 2009, the Veteran complained of muscle pain in his upper and lower extremities.  He complained of stiffness in his back and joints since 1998.  He was diagnosed with chronic intermittent muscle strain of unknown etiology, chronic intermittent joint stiffness, degenerative joint disease (DJD) of the knees with associated pain, and stiffness of the left shoulder joint and right knee joint.

VA treatment records include a September 2009 report which reflects complaint of chronic joint pain, right-sided forehead pain, and right knee pain.  On VA joints examination in November 2009, the Veteran complained of right knee stiffness and joint pain diagnosed as mild DJD of the right knee.  A May 2010 report documents a complaint of right knee pain.  

Pursuant to the Board's June 2010 remand, on VA joints examination in August 2010, the Veteran presented with a history of stiffness and joint pain since 2000.  He presented with a history of stiffness in the right shoulder, both knees, and ankles.  It was noted that he was currently service-connected for the right knee.  On examination, he was diagnosed with DJD right knee status post arthroscopy, DJD left knee, and DJD right shoulder with associated stiffness in the joints.  The examiner opined that the Veteran's stiffness was subjective and that based on the Veteran's history he was likely experiencing the symptoms of early arthritis.

On VA Gulf War Guidelines examination in August 2010, the examiner opined that there was no objective evidence of stiffness and that his disability pattern is a disease with a clear and specific etiology and diagnosis-degenerative joint disease of the knees and right shoulder which is not at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia.

In this case, the Board notes that the Veteran's complaints of stiffness and pain have been attributed to arthritis and, more specifically, to degenerative joint disease of the Veteran's service-connected right knee disability, and non-service connected left knee and right shoulder disabilities, which are not undiagnosed or chronic multisymptom illnesses.  Therefore, they do not fall within the purview of the undiagnosed illness presumptive provisions and presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  The Veteran has not sought service connection for left knee or right shoulder disorders as related directly to service, nor do the service treatment records suggest a basis for such a claim.

With regard to entitlement to service connection for stiffness and joint pain on a direct basis and presumptive basis for certain chronic diseases (including arthritis), as a factual matter, the Board notes that the Veteran was previously awarded service connection for his right knee disability, including arthritis.  However, symptoms which have been considered in assigning an evaluation for a service-connected disability may not serve as a factual basis for a separate evaluation or evaluation of another disability.  38 C.F.R. § 4.14, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

With regard to the Veteran's complaints of joint pain and stiffness related to his left knee and right shoulder, on review of the evidence above, the Board finds the Veteran does not have stiffness or joint pain, which have been attributed to arthritis and degenerative joint disease of the left knee and right shoulder, that are etiologically related to his service.  In addition, the record includes an August 2010 VA medical opinion which does not attribute the Veteran's arthritis and degenerative joint disease of the left knee and right shoulder to his active service.  The Board notes that the examiner provided a sound rationale in support of the conclusion and has the requisite medical expertise to provide a competent medical opinion regarding the etiology of the Veteran's fatigue.  The examiner also had sufficient data on which to base the conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, and his own interview and examination of the Veteran.  Moreover, there is no contrary medical opinion of record.

Furthermore, with the exception of the Veteran's service-connected right knee disability, the Veteran's diagnosed arthritis and degenerative joint disease of the left knee and right shoulder was not shown until over two decades after his discharge from active duty.  Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection.  See Maxson v. Gober, 230 F. 3d 133-(Fed. Cir. 2000).

Under each applicable theory of entitlement to service connection, the preponderance of the evidence is against the claims for service connection for joint pain and stiffness.

III. Environmental hazards claims

The Veteran himself has never claimed that any of his numbness of the extremities, headaches, fatigue, stiffness, or joint pain either began during or have persisted since service.  If such an allegation were made, the Board would have to consider the Veteran's credibility before weighing his statements along with other evidence in the claims file.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  This is not the case here, as the Veteran readily concedes that numbness of the extremities, headaches, fatigue, stiffness, or joint pain did not begin in service.  Instead, his claims are based on the premise that numbness of the extremities, headaches, fatigue, stiffness, or joint pain are related to incidents of his service.

The Board recognizes the sincerity of the arguments advanced by the Veteran that he has numbness of the extremities, headaches, fatigue, stiffness, and joint pain that are due to environmental hazards he encountered during his service.  However, while the Veteran is competent to report that he has had numbness of the extremities, headaches, fatigue, stiffness, and joint pain since his discharge from service, he is not competent to report that these symptoms are related to his service because he does not have the education, training, or experience to offer a medical opinion.  See 38 C.F.R. § 3.159(a)(1).  The Board finds that while the Veteran is competent to describe symptoms such as numbness of the extremities, headaches, fatigue, stiffness, and joint pain, the question of whether the Veteran currently has these symptoms due to his military service is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  See Davidson, supra; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet).  The VA medical opinions in this case far outweigh any lay opinion provide by the Veteran in these medically complex matters.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for musculoskeletal, orthopedic, or neurological disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Hence, the Veteran's opinion of the etiology of his current disabilities are not competent evidence and is entitled to low probative weight.

Therefore, based upon the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the claims, on a direct basis or presumptive bases (i.e., as a chronic disease and undiagnosed illness), and the benefit-of-the-doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).


ORDER

The appeal for service connection for chronic numbness of the extremities, to include a claim for numbness as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

The appeal for service connection for headaches, to include a claim for headaches as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.
 
The appeal for service connection for a chronic disability manifested by fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

The appeal for service connection for a chronic disability manifested by stiffness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

The appeal for service connection for joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.


REMAND

Unfortunately, another remand of the Veteran's claim for service connection for dizziness, is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The Veteran asserts that he has dizziness that may be related to his exposure to chemical and biological agents, including smoke from oil wells, destroyed weapons arsenals and vaccinations during his service in the Gulf War in the early part of 1991.  In June 2010, the Board remanded the claim for an examination and opinion as to whether there were objective findings that the Veteran currently manifested dizziness and if so, the examiner was asked to state whether the Veteran's dizziness is due to a specific disease entity, including hypertension.  If the Veteran's dizziness was due to a specific disease entity, the examiner was asked to provide an opinion as to whether the Veteran's dizziness was related to his service.  If dizziness was found to be unrelated to a specific disease entity, the examiner was asked to opinion as to whether it was an objective indication of chronic disability related to his service in the Persian Gulf or a medically unexplained chronic multisymptom illness.

Pursuant to the Board's remand, the Veteran underwent a VA ear disease examination in July 2010 at which time he presented with a history of dizziness during a period of incarceration after his active service.  The date of onset was noted to be sometime after 2002.  The "diagnosis" provided was, "[t]his is not otogenic dizziness and it is not temporally related to his time in Saudi Arabia."  The examiner opined that "toxic exposures are not likely involved with this."  

However, the diagnosis associated with the Veteran's dizziness, or whether dizziness is associated with an undiagnosed disorder, remains unclear.  The Veteran's claim for service connection for dizziness is not limited to otogenic dizziness.  Thus, the examination and opinion addressed on a portion of the question posited by the Board, and it remains unclear whether the Veteran's dizziness is related to his service other than on the basis of toxic exposures, to include whether the Veteran has dizziness as a manifestation of an undiagnosed disorder.  Accordingly, the July 2010 VA examination and opinion are inadequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  On remand, a supplemental opinion should be obtained that addresses the issues of direct and presumptive service connection for the Veteran's dizziness.

Accordingly, the case is REMANDED for the following actions:

1.  The RO/AMC shall obtain a supplemental medical opinion from the July 2010 VA ear disease examiner (or another appropriate medical professional if Dr. H.T.R. is unavailable), without further examination of the Veteran.  If another medical examination is needed in order to provide the requested opinion, please so schedule.  The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination.  Specifically, the examiner should provide the following information:

	a) indicate whether there are objective findings that 	the Veteran currently manifests dizziness.  If so, state 	whether the Veteran's dizziness is due to a specific 	disease entity, including hypertension;

	b) if the dizziness is due to a specific disease entity, 	opine whether that entity is at least as likely as not 	etiologically related to the Veteran's period of active 	service, including any alleged chemical exposure;

	c) if the dizziness is not due to a specific disease 	entity, indicate whether it represents an objective 	indication of chronic disability resulting from an 	undiagnosed illness related to the Veteran's Persian 	Gulf War service, or a medically unexplained chronic 	multisymptom illness, which is defined by a cluster of 	signs or symptoms;

	d) if the dizziness represents an objective indication of 	chronic disability resulting from an undiagnosed 	illness or s or a chronic multisymptom illness, also 	describe the extent to which the illness has 	manifested.

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report.  If the examiner/reviewer cannot answer any question posed without resorting to unsupported speculation, the examiner should so state, and explain why that is so.

2.  Then, the RO or AMC should readjudicate the issue on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action.

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).



______________________________________________
Tresa M. Schlecht 
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs