Citation Nr: 1324614 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-23 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a back disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a respiratory disability (to include sinusitis), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a disability manifested by syncope, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1987 to August 1987 and from October 2004 to December 2005, including service in the Southwest Asia Theater of Operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2010; a transcript of the hearing is of record. The issue of entitlement to service connection for a disability manifested by syncope is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's lumbosacral spine arthritis had its onset in service. 2. The Veteran's sinusitis had its onset in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for lumbosacral spine arthritis are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for sinusitis are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a back disability and a respiratory disability. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran asserts that he is entitled to service connection for a back disability and a respiratory disability, to include as a manifestation of an undiagnosed illness. In statements in support of his claim, the Veteran has reported onset of a respiratory disability while serving in the Persian Gulf during the Persian Gulf War. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Because the Veteran served 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 and 38 C.F.R. § 3.317. Under those provisions, 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. 38 C.F.R. § 3.317(a)(1). 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 and 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. 1, 8-9 (2004). 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); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illness 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). Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; (ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317(c)(1)-(2). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. Further, if a veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation. This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease. If a veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column B in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column A in that same table. "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. 38 C.F.R. § 3.317(a)(3). 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). 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). The Board notes that the Veteran's complete service treatment records are not available, particularly those pertaining to his active service from October 2004 to December 2005. In December 2009, the RO made a Formal Finding as to the unavailability of the Veteran's service treatment records; any such records are presumed irretrievably lost. Therefore, VA has a heightened duty to assist the appellant in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Back Disability The Veteran's available service treatment records are silent for complaints, findings, treatment or diagnosis pertaining to a back disability. The instant claim for service connection for a back disability was filed in March 2009. Post-service VA treatment records include a July 2007 report noting the Veteran was seeking to be managed for his back pain. He related that while serving in Iraq, he wore heavy equipment that caused his low back pain. The treatment instructions included ordering a lumbar spine x-ray. [The Board notes that there is no lumbar spine x-ray associated with the claims file contemporaneous with the July 2007 treatment record. It is unclear if such was in fact performed. However, as is already noted above, the Board is granting the Veteran's claim so he is not prejudiced by VA not seeking additional development of his claim, to include searching for a lumbar spine x-ray performed in approximately July 2007.] On July 2009 VA spine examination, the Veteran reported the date of onset of his low back pain was 2005. He indicated he wore body armor which caused his low back pain. On physical examination, there was no evidence of abnormal spinal curvature. The Veteran's gait was normal. There was no evidence of spinal spasm, atrophy, guarding, pain with motion, tenderness or weakness. Findings also included normal motor, sensory and reflex examinations. Lumbosacral spine x-rays revealed minimal scoliosis; mild disc space narrowing at L3-L4; Schmorl's node at L1-L2; minimal marginal osteophytes; and minimal poster facet hypertrophy in the lower lumbar spine. The impression was mild degenerative changes. After interview and examination of the Veteran, the examiner provided a diagnosis of low back strain, resolved, without residual functional deficit. The examiner opined that the Veteran's low back pain is not caused by or a result of military service, stating that there is no documentation found in the claims file that would substantiate that his back pain was a chronic condition during his active service. At the October 2010 Travel Board hearing, the Veteran testified that the onset of his back pain was just prior to his deployment to Iraq. He further related that he had to wear drill protective equipment and other equipment that caused back pain. While stationed in Iraq, he had to wear 40 to 50 pounds of gear for 12 to 14 hours per day. He also testified that he continued to have back pain after service and that he has current lower back pain. Preliminarily, the Board notes that service connection for a back disability under the presumptive provisions of 38 C.F.R. § 3.317 is inapplicable since the Veteran's complaints are attributable to a known clinical diagnosis. On July 2009 VA examination, x-rays revealed mild degenerative change (i.e., arthritis) and it was noted that he had lower back pain. It is on this disorder that this analysis will focus. The Veteran contends that his low back pain began shortly before his deployment to Iraq, that it continued after service, and that he presently has low back pain. The testimony from the Veteran is credible and competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.303(a). Although the July 2009 VA examiner opined that the Veteran's current low back pain is not related to his service, this opinion is inadequate because it was not supported with an adequate rationale. Specifically, the examiner opined that there was no evidence that would substantiate that his back pain was a chronic condition during his active service. However, as stated above, the Veteran's complete service treatment records, particularly records during his period of service from October 2004 to December 2005, are not available for review, and are presumed irretrievably lost. In addition, basis for the examiner's conclusion does not account for the Veteran's competent, credible and probative accounts of lower back pain, to include onset and recurrence since separation. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the inadequate VA medical nexus opinion, the Board is left with the competent and credible lay reports from the Veteran of recurrent lower back symptoms since service. Moreover, the evidence shows that he sought treatment after service almost two years before he filed the instant claim, indicating his lower back pain began during service in Iraq. In addition, lumbar spine x-rays were supposedly ordered. While those results are not of record, July 2009 VA examination lumbosacral spine x-rays revealed arthritis. Based on the above, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbosacral spine arthritis is warranted. See 38 C.F.R. §§ 3.303(a), 3.307, 3.309. Respiratory Disability The Veteran's available service treatment records are silent for complaints, findings, treatment or diagnosis pertaining to a respiratory disability. The instant claim for service connection for a respiratory disability was filed in March 2009. Post-service VA treatment records include a July 2007 report noting the Veteran was seeking to be managed for his sinusitis. He related that he developed nasal congestion when he arrived in arrived. When he went home, his nasal congestion cleared up, but when he went back to Iraq, the nasal congestion returned. He further related that he has nasal congestion every day all day. He denied shortness of breath, chronic obstructive pulmonary disease (COPD), or chest pain. A July 2007 report of a telephone conversation with the Veteran shows he was informed a sinus CT revealed sinusitis. On July 2009 VA nose, sinus, larynx, and pharynx examination, the Veteran reported that he noticed his sinus congestion in Iraq, although he did not seek treatment for such in Iraq. He first sought treatment in June 2006. He reported frequent difficulty breathing. On physical examination, there was no evidence of sinus disease, nasal obstruction, and there was a normal nasal exam. X-rays revealed clear paranasal sinuses and no significant mucoperiosteal thickening or air-fluid levels. The examiner appeared to provide a diagnosis of sinusitis, and opined that there was no documentation found in review of the Veteran's claims file that would substantiate that his sinus complaints were a condition during his active service. At the October 2010 Travel Board hearing, the Veteran testified that his sinusitis had its onset in 2005. He stated he experienced nasal congestion as soon as he arrived in Iraq and since his service in Iraq. Preliminarily, the Board notes that service connection for a respiratory disability under the presumptive provisions of 38 C.F.R. § 3.317 is inapplicable since the Veteran's complaints are attributable to a known clinical diagnosis. Postservice VA treatment records show a July 2007 report of a telephone conversation with the Veteran informing him that a sinus CT revealed sinusitis, a diagnosis confirmed on July 2009 VA examination. It is on this disorder that this analysis will focus. The Veteran contends that his nasal congestion began during his active service in Iraq, that it continued after service, and that he presently has nasal congestion all day every day. The testimony from the Veteran is credible and competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.303(a). Although the July 2009 VA examiner opined that the Veteran's current sinusitis is not related to his service, this opinion is inadequate because it was not supported with an adequate rationale. Specifically, the examiner opined that there was no evidence that would substantiate that his sinus complaints were a condition during his active service. However, as stated above, the Veteran's complete service treatment records, particularly records during his period of service from October 2004 to December 2005, are not available for review, and are presumed irretrievably lost, although the Veteran has denied treatment during service for his nasal symptoms. In addition, the basis for the examiner's conclusion does not account for the Veteran's competent, credible and probative accounts of nasal congestion, to include onset and recurrence since separation. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the inadequate VA medical nexus opinion, the Board is left with the competent and credible lay reports from the Veteran of recurrent nasal congestion since service. Moreover, the evidence shows that the Veteran sought treatment after service almost two years before he filed the instant claim, indicating his nasal congestion began during service in Iraq. In addition, sinus CT revealed sinusitis. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's sinusitis is related to his service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for sinusitis is warranted. See 38 C.F.R. §§ 3.303(a). ORDER Service connection for arthritis of the lumbosacral spine is granted. Service connection for sinusitis is granted. REMAND The Veteran also seeks entitlement to service connection for a disability manifested by syncope. After a review of the claims file, the Board finds that further development is necessary for proper adjudication of the claim. At the October 2010 Travel Board hearing, the Veteran testified that he noticed the onset of the syncope after his active service in Iraq, relating that he passes out if he laughs too hard. He further indicated that he receives all treatment at the Saginaw VA Medical Center (VAMC), and that the cause of his syncope has not been determined despite significant testing. As the most recent VA treatment record is dated from February 2009, any outstanding VA treatments relevant to the Veteran's syncope claim should be obtained for consideration in his appeal. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, the Board also notes that at the October 2010 Travel Board hearing, the Veteran was advised by the undersigned Veterans Law Judge that if there is anyone who has observed him faint, he should submit such lay evidence. The case was held in abeyance for 30 days for the submission of additional evidence, including the submission of lay evidence in support of his claim. Notably, the Veteran submitted duplicative service treatment records, but as of yet has not submitted any lay evidence in support of his claim. As this matter is being remanded anyway, he should be afforded another opportunity to submit additional evidence, including lay evidence, in support of his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file for consideration all Saginaw VAMC treatment records since February 2009 concerning any evaluation or treatment the Veteran has received for his claim for syncope. 2. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge of the nature, extent and severity of his in-service and post-service disability manifested by syncope. He should be provided a reasonable amount of time to submit this lay evidence. 3. Then readjudicate the issue remaining on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs