Citation Nr: 1321845 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 10-44 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for chronic chest pain, to include as due to an undiagnosed illness. 2. Entitlement to service connection for chronic cough and congestion, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a back disability, to include as due to an undiagnosed illness. 4. Entitlement to service connection or residuals of traumatic brain injury. 5. Entitlement to an increased rating for bilateral flat feet with bunions, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 2000 to February 2004. He received the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information; the file contains entirely duplicative information, such as past rating decisions and other administrative records, that are already in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Review of the record reflects that the Veteran received the Combat Action Ribbon and is thus shown to have performed combat service. For injuries alleged to have been incurred in combat, the provisions of 38 U.S.C.A. § 1154(b) provide a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). This provision does not establish a presumption of service connection; rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Id. at 392. As an initial matter, the Board observes that relevant records were received by the Board following certification of this appeal by the agency of original jurisdiction (AOJ). In April 2013 the Veteran was advised that he could elect to have his appeal remanded to the AOJ for initial review of these records. In May 2013 the Veteran responded that he wanted his case remanded for review of the additional evidence. Chronic Chest Pain, Cough, and Low Back Condition The Veteran alleges that he has chest pain, cough, and a low back condition that are related to his service in Iraq. The Board also observes that under 38 C.F.R. § 3.317, 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a)(1) (2012)). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5) (2011); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii) (2012). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3) (2012). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b) (2012). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4) (2012). With respect to the Veteran's claims for chest pain and chronic cough, the Board notes that such are included in the signs or symptoms in 38 C.F.R. § 3.317(b). A post deployment assessment completed by the Veteran in May 2003 indicates his report of exposure to smoke from oil fires, smoke from burning trash or feces, vehicle or truck exhaust fumes, and fog oils. Moreover, the record includes a May 2009 report by VA's War Related Illness & Injury Study Center of New Jersey, which includes a discussion of the Veteran's complaints of palpitations and respiratory problems. The record additionally includes treatment reports from a Vet Center in which the Veteran is noted to have stated that he was exposed to various pollutants, and that he had experienced a consistent cough and chest pains. Because the Veteran has reported chest pain and cough, and he has endorsed exposure to various pollutants during his time in Iraq, the Board concludes that a VA examination is necessary to determine whether there are objective indications of chronic disability referable to his reported symptoms. Regarding the Veteran's claimed back pain, the Board observes that the enumerated signs and symptoms found in 38 C.F.R. § 3.317(b) include muscle and joint pain. The Board additionally notes that a March 2001service treatment record indicates the Veteran's complaint of pain in his low back after playing basketball. The assessment was muscle spasm of the right mid to upper back. The Board has determined that a VA examination is warranted to determine whether any currently present back symptoms are related either to in-service disease or injury, or are objective indications of a chronic disability manifested by the reported back pain. Traumatic Brain Injury The Veteran asserts that he suffers from residuals of traumatic brain injury. An October 2010 Vet Center intake report indicates that the Veteran endorsed having been involved in incidents involving explosive devices. He specified that such included mortar rounds and rocket propelled grenades. Considering the Veteran's combat service with the Marine Corps, the Board finds it plausible that the Veteran was exposed to the type of arms he has identified. Because he has identified cognitive symptoms that might signify traumatic brain injury, the Board has determined that a VA examination is warranted to determine whether there was traumatic brain injury and if so, its residuals. Increased Rating for Flat Feet In October 2008, the AOJ issued a rating decision in which it assigned a higher, 30 percent evaluation for the Veteran's flat feet. In February 2009, the Veteran submitted a notice of disagreement which included this issue. The filing of a Notice of Disagreement places a claim in appellate status. Therefore, a Statement of the Case regarding these issues must be issued to the appellant. As such, this issue must be remanded for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 239, 240- 41 (1999). In light of the above discussion, the Board has determined that additional action and development are necessary. Accordingly, the case is REMANDED for the following: 1. Schedule the Veteran for a VA Gulf War protocol examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed chest pain and cough. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following interview, examination of the Veteran, and review of the claims file, the examiner should note and detail all reported signs and symptoms referable to the Veteran's reported chest pain and cough, to include details about the onset, frequency, duration, and severity of all complaints relating to signs and symptoms, to include what precipitates and what relieves them. The examiner should determine whether there are any objective medical indications that the Veteran is suffering from a chronic disability manifested by chest pain and or chronic cough. The examiner should specifically determine whether the Veteran's complaints referable to chest pain or chronic cough are attributable to any known diagnostic entity. If not, the examiner should specifically state whether he is unable to ascribe a diagnosis to the Veteran's complaints. If the Veteran's reported chest pain or chronic cough are ascribed to a known diagnostic entity, the examiner should provide an opinion as to whether it is at least as likely as not that such disease entity(ies) is etiologically related to the Veteran's active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule the Veteran for a VA Gulf War protocol examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed low back pain. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following interview, examination of the Veteran, and review of the claims file, the examiner should note and detail all reported signs and symptoms referable to the Veteran's reported low back pain, to include details about the onset, frequency, duration, and severity of all complaints relating to signs and symptoms, to include what precipitates and what relieves them. The examiner should determine whether there are any objective medical indications that the Veteran is suffering from a chronic disability manifested by low back pain. The examiner should specifically determine whether the Veteran's complaints referable to low back pain are attributable to any known diagnostic entity. If not, the examiner should specifically state whether he is unable to ascribe a diagnosis to the Veteran's complaints. If the Veteran's reported low back pain is ascribed to a known diagnostic entity, the examiner should provide an opinion as to whether it is at least as likely as not that such disease entity is etiologically related to the Veteran's active service. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of his claimed traumatic brain injury residuals. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Following interview, examination of the Veteran, and review of the claims file, the examiner should indicate whether there are signs of traumatic brain injury. If so, the examiner should indicate whether it is at least as likely as not that any such signs are related to any incident or injury in service. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. Issue the appellant a statement of the case on the issue of entitlement to an increased rating for bilateral flat feet pursuant to 38 C.F.R. § 19.26 (2012). If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, the RO should return the claim to the Board for the purpose of appellate disposition. 6. Then, readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).